Marriage and divorce in Islam

An essay donated by Lal Mohd

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Summary:

The solemnization of marriage in any form or in any religion is nothing more than a legalization of a sexual relationship between a man and woman and the legitimization of the children produced by them. Common-law couples and their children are similarly recognized after 20 years of co-habitation. Both are treated as married husband and wife and their children have the same legal rights and inheritance rights as provided to other legitimate children's in the eyes of law.

Nikah (marriage) in pre Islamic Arabia meant a different form of relationship between man and women. Women where not given any right of inheritance and were absolutely dependent. Woman were treated as chattels. But on the arrival of Prophet Mohammad, Muslim marriage become a civil contract in which a woman does not lose her individuality. Her personality is not merged into that of her husband. In this way woman remains absolute owner of her property in any way she pleases without any extraneous control of her husband.

The Prophet of Islam is reported to have said ''marriage is my Sunna and those who do not follow this way of life are not my followers." He also said that ''there is no place of mockery in Islam.''

In Hedya, marriage is defined as a

"... legal process by which the sexual intercourse and procreation of children are legitimized between man or woman and is perfectly lawful and valid."

The purposes of Muslim marriage:

The purposes are:

1. To restrain sexual passion.
2. The ordering of domestic life.
3. The care and responsibility towards children.
4. The expansion of the family.

Essential pre-conditions for Muslim marriage:

Muslim marriages are social contracts between a woman and man on the following terms:

1. There shall be a proposal and its acceptance. The proposal of marriage are tied to agreements on a dowry (a gift by the family of the groom to the family of the bride) and a mahr (a marriage gift by the groom to the bride), etc.
2. Competence of parties. Any Muslim who is sound mind and who has attained age of puberty may enter into contract of marriage.
3. No legal disability. There can be no restriction on any valid Islamic grounds that would preventing the couple to marry.
4. There shall be free consent of both parties to the marriage.
5. There shall be two male witnesses (or one male and two female witnesses). These witnesses shall be sane, adult and Muslim.

Divorce in Islam:

Many people of other religions believe that a married Muslim man can dissolve his marriage at any time by saying to his wife: "Talaq, talaq, talaq" at one occasion of his own free will and desire. ("Talaq" means "I divorce you.") This motivated me to study the the actual existence of this method of dissolution of a marriage in Islam.

After solemnization of marriage between parties, if some problems arise, the husband may divorce his wife. The question is how he divorces his wife, and whether pronouncement of divorce three times at one occasion is valid.

Zeenat Shaukat Ali, Professor of Islamic Studies St. Xavier's College, Mumbai published an article in the Indian Express with title: "Divorce, Divorce, Divorce." He attempted to clear up misconceptions by Muslims and others about the triple pronouncement of Talaq. The main points in his article were:

1. Talaq and divorce are strongly condemned within Islam.
2. In case of difficulties within a marriage that the husband and wife cannot solve by themselves, each shall appoint an arbitrator or conciliator to resolve the matter.

   ( 4:35): "If the fear Shiqaq (breach) between the Twain, appoint (two) arbiters, one from his family and other from hers, if they wish for peace, ALLAH will cause their reconciliation."

3. TALAQ-UL-BIDDAT or triple TALAQ: It is important to understand that the word "biddat" itself means disapproval or something the prophet never did or recommended.
4. Caliph Umer legitimized this form of divorce as an emergency measure.

Most Muslims believe that there shall be a interval of of one month between each "taliq" pronouncement. If the during these pronouncements, the wife disobeys the lawful order of her husband, he may divorce her. During this time of breach they should take measures to reconcile by themselves or with the help of their relatives etc. All efforts as provided in the Qur'an and Sunna should be made to avoid a breach of the marriage.

The triple pronouncement of TALAQ has been "...banned by law in many nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, and Bangladesh. India still permits it." ₁ In all such countries arbitration councils and judicial interventions have been introduced to promote reconciliation.

Offices staffed by female police are being established in Punjab state, India to redress grievances, particularly by married women. These facilities promote arbitration to help reconcile the couple. When all efforts fail, the matter is referred for investigation and later to the court for a trial.

I hope that people of the Islamic faith will learn from the above discussion on divorce and become aware of the controversial practice within Muslim marriages of the triple pronouncement of Talaq at one occasion which I believe is Un-Islamic and Un-Qur'anic. Avoiding that practice will create proper respect, honor and adoption of the Holy Qur'an  and Sunna (Observing the path) of Prophet Mohammad.

May peace be upon Him and on us of Almighty ALLAH ! Ameen.

Reference used:

1. "Triple talaq: Legal status," Wikipedia, at: http://en.wikipedia.org/

Originally posted: 2007-JUL-30
Latest update: 2007-JUL-30
Author: Lal Mohd.