In the region where
Islam was first preached, marriage dissolution was practiced by the people
among whom early Muslims grew up and with whom they made external contacts.
Jews, Christians,
Arab pagans, and Persian Zoroastrians more or less resorted to the practice,
with either the explicit, the implicit, or the mutilated sanction of their
respective system.1
With regard to Hebrew
law, in particular, a remark has been made which applies in a general way to
the case of Islam. According to Driver, “Hebrew law . . . does not institute divorce,
but tolerates it, in view of the imperfections of human nature (. . . Mt.
19:8), and lays down regulations tending to limit it and preclude its abuse.”2
The phenomenon of
marriage dissolution had existed before Islam and has persisted ever since.
Indeed, if the contemporary world situation
is indicative of any trend, it appears to foretell a continuing increase in
divorce rates; the gradual decline in some societies is offset by the
continuing rise in others.3
However, Islam has
taken a position between categorical proscription and unqualified
liberalization of divorce. It neither instituted the practice nor ignored its
reality and occurrence. An outright prohibition would probably remain an
“ideal” or merely a state of mind, but hardly a pattern of actual behavior, because
absolute self-control is not always attainable.
Such a prohibition,
then, would seem incompatible with Islamic ideology which, as a matter of
principle, prescribes only what is humanly attainable.4
On the other hand,
any unregulated liberalization of divorce is socially inconceivable and would almost
certainly result in chaos, peril, and such traits that are destructive as well
as intolerable.
Instead of demanding
the impossible or catering to the intolerable, Islam adopted a position which
has been variously characterized as “lax” and loose by some observers, “rigid”
and inflexible, or moderate and perfect by others.
Such
characterizations, however, seem to be oversimplifications. Divorce or
repudiation in Islam is distributed along a continuum encompassing all the
religion legal categories from the one extreme of prescription through the other
of proscription.
It is obligatory,
e.g., where there is no conceivable way of reconciliation or hope for peace
between the parties. It is highly recommended or nearly obligatory if the wife
is unfaithful or defiantly inattentive to her religious duties.
It is forbidden legally
and/or religiously during the wife’s monthly course and also during the interim
in which intercourse has taken place. It is strongly undesirable or nearly
forbidden where there is no good reason for it, because it would be harmful and
Muslims are forbidden by their religion to initiate harm or inflict injury upon
one another.
Finally, it is lawful
when there is a valid ground for it, like recurrent inconsiderateness or
failure to realize the objectives of marriage. Even then, it is designated by
the Prophet as the most repugnant, in the sight of God, of all lawful things;
it is an act which shakes the throne of God as it were.5
The permissibility of
divorce in Islam is thus only one of several religion-legal categories and
represents an alternative course of action, which is admissible in response to
certain basic human needs.
But beyond this
general response, there are some peculiar factors bearing on the position of
Islam. One of these is that, in Islam, things as such are lawful in
principle. They become forbidden or undesirable, obligatory or
commendable according to other elements of the situation.
Another factor is
that the marriage contract in Islam is neither a civil act nor a sacramental
vow, but a synthesis of both. Its dissolution therefore is admissible; it is
not unrestricted like some civil liberties, and it is not indissoluble like
some sacramental vows.
Finally, Islam has been
characterized as the religion of the middle but straight and well-balanced
course.13 Marriage dissolution through divorce or repudiation is
recognized as both real and lawful in principle, however undesirable or
repugnant.
This recognition has elicited
different reactions from different scholars. For some, divorce in Islam is a mechanism
of discipline and compassion, a necessary and sensible corollary of the freedom
given to men and women to choose their marital partners.
“For others, Islam’s
position has been an object of strong and varied criticisms. In Jeffery’s representative
words, “The lightness with which the marriage tie was regarded in early Arabia
has carried over into Islam, as evidenced by the facility with which a man may
divorce his wives and by the high frequency of divorce which has always
characterized Muslim society. The Qur’an grants man complete liberty of
divorce and demands of him no justification for divorcing his wife. Thus
he can divorce her at his own caprice, but no such facility exists for her.” 6
Criticisms have also
been voiced with concern by some Muslims, who unlike their Western colleagues,
usually hasten to point out the perfection of the revealed law and attribute
any abuse thereof to the individual’s negligence or lack of integrity.
As far back as the
second decade of Islam, the first half of the seventh century C.E., some people
began to misuse their right of divorce. Until then, it had been accepted that
if a man told his wife that she was “divorced thrice” the word thrice counted only
as one revocable divorce.
When some people used
this thrice formula carelessly, ‘Umar, the Second Caliph, reacted with
indignation. He consulted with his companions and it was decided to consider
such a formula as a triple irrevocable divorce. The interesting fact here is
that this new provision was conceived as a punitive measure to discipline the
divorcing men and protect the divorced women.7
A few centuries later,
Ibn Taymiyyah observed that many people were using divorce formulas like
ordinary casual forms of oath. But he realized that the breaking of an oath was
easily expiable by feeding or clothing ten poor people or by freeing a slave, whereas
the breaking of a “divorce oath” meant the breaking of a marriage and a home.
So he ruled that such
divorce oaths were void and inconsequential as far as the marriage bond was concerned.
He also opposed the earlier decision of ‘Umar and other leading schools of law
with respect to the “thrice formula,” counting it as one revocable divorce, not
three.
What Umar had
considered disciplinary measures against irresponsible men turned out, with the
change of time and conditions, to be harmful to innocent women. Ibn Taymiyyah
sought, by his rulings, to redress this situation.8
Taken as a
sociological index, such considerations seem to indicate (1) that Islamic law
regards both marriage and divorce as highly sensitive and consequential
matters; (2) that people’s reactions do not always correspond with the intent
or spirit of the law; (3) that, in the early centuries of Islamic history, the
simplicity of divorce was thought of as more harmful to men than women; but (4)
that recent centuries have witnessed a general reversal of the effects of divorce.
As many Muslims fail
in their behavior to meet the moral expectations of their religion, so do some
critics appear to fall short of a full appreciation of the logic of social
legislation in Islam. It may be difficult for Muslim scholars to comprehend the
scientific basis of such assertions as those made by Jeffery, Levy, or Roberts
about what they have called the incredible simplicity or unjustifiable facility
of divorce in Islam.
It seems simplistic
to attribute to Muslims, as Roberts does,9 a greater need for, and a
higher frequency of, divorce because of the separation of the sexes and the
women’s wearing of the veil.
The mixing of the
sexes, even in modern enlightened times, and the discontinuity of the veil have
neither prevented nor curtailed the frequency of divorce. If anything, they
seem to have increased its frequency. On the other hand, the wearing of the veil
over the face has little or nothing to do with Islam.10
Besides, it is
strongly recommended by the Prophet that prospective marital partners should be
enabled to know each other well enough to build their future relations on love
and compassion but, of course, without undue familiarity, indulgence, exploitation,
or illicit experimentation.11
Moreover, the fact that
women have had less freedom to divorce their husbands does not necessarily mean
that it has led to an increase in divorce rates. Rather, it may be one of the
effective restrictions on divorce, for it has been observed that, at least in
Western societies, the long-run trend in divorce rates is upward and, partly,
the increase “is tied to the emancipation and the equalitarian
status of women,…”12
REFERENCES
1. See, for
example, Bardis, pp. 418—9, 447; al Hufi (1), pp. 222-3, (2), pp. 259 ff;
Patai, pp. 113 ff; Westermarck (1), pp. 518 ff.
2. Quoted in
Roberts, p. 123.
3. Berelson and
Steiner, pp. 311-2.
4. See, for
example, al Q u r 'a n , 2:233, 286.
5. Cf. al T a j,
vol. 2, pp. 308 ff; Ibn Qudamah, vol. 7, pp. 296-7; ‘Awn, p. 94 ff; Roberts,
pp. 18-9; Siddiqi, p. 81; Abu Zahrah (3), pp. 70-1, 684; WafI (1 ), pp. 65 ff.
6. al Q u r 'a
n , 2:143 (with A. Yusuf ‘All’s translation and commentary); 42:40-3; al
T a j , vol. 2, pp. 308 ff.
7. See, for
example, WafI (1), pp. 65-7; Siddiqi, p. 76.
8. Jeffery, p. 60
(emphasis added). The same idea has been expressed by R. Levy (p. 121) and
Roberts (p. 19) with almost identical words. Roberts, in particular, (pp.
19-20; cf. pp. 22-3) remarks that the Arabs, and indeed Eastern peoples in
general, have a greater need for divorce, “since their social relations are so
very different from ours. The need arises especially from the seperation of the
sexes, and . .. the practice among women of wearing the veil . . . The great
facility with which a man may divorce his wife . .. naturally weakens the
marital bond, and reduces a woman to the most degrading position in the social
scale.”
9. See, for
example, a l T a j, vol. 2, pp. 310-1 with the commentary; Watt (1), pp.
66-7; ‘Awn, pp. 103-4. Parenthetically, this was the case because marriages
then were costly affairs for men. An irrevocable triple divorce must have meant
a great deal of concern for the man who carelessly pronounced it.
10. Cf. Abu Zahrah
(3 ), pp. 683-4; ‘Awn, pp. 103-4. It is noteworthy that many of these
considerations are being re-examined by contemporary Muslim authorities in
their search for the spirit and equity of the law. It is also interesting that
what some observers, as Jeffery, have called unjustifiable facilities of
divorce in Isiam were in fact instituted as disciplinary or punitive measures
against irresponsible parties. For example, a divorce pronouncement by an
intoxicated, jesting, or thoughtless man is considered by some jurists as
valid. The idea here is not so much to certify a divorce formula as to
discipline an irresponsible, heedless person and alert him to the serious
nature of his action. See also al T a j, vol. 2, p. 309; Watt (1), pp.
76-7.
11. Roberts, pp.
19-20.
12. Cf. al ‘Aqqad,
pp. 63 ff; Jeffery, pp. 56-7; al Q u r a n 24:27-8; 33:53-5, 58-9.
13. Cf. al T a
j, vol. 2, pp. 259 ff; al Ghazall, pp. 69 ff.
14. Berelson and Steiner, p. 312 (emphasis added).
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