Debating Islam(08 Sep 2015 NewAgeIslam.Com)
The Process for Divorce in the Quran


 

By Naseer Ahmed, New Age Islam

8 September 2015

The following are a few of the verses that describe the relationship between a married couple and between men and women in general.

(7:189) It is He Who created you from a single person, and made his mate of like nature, in order that he might dwell with her (in love). When they are united, she bears a light burden and carries it about (unnoticed). When she grows heavy, they both pray to Allah their Lord, (saying): "If Thou givest us a goodly child, we vow we shall (ever) be grateful."

(30:21) And among His Signs is this, that He created for you mates from among yourselves, that ye may dwell in tranquillity with them, and He has put love and mercy between your (hearts): verily in that are Signs for those who reflect.

(4:1) O mankind! Reverence your Guardian-Lord, who created you from a single person, created, of like nature, His mate, and from them twain scattered (like seeds) countless men and women; - reverence Allah, through whom ye demand your mutual (rights), and (reverence) the wombs (That bore you): for Allah ever watches over you.

The relationship is one of love, mercy, trust, tranquillity, and mutual support. O mankind! Reverence the wombs that bore you says it all. This is not about reverencing only your mothers but reverencing all mothers and potential mothers or any female for the fact that she bears children and is capable of motherhood.

Sexual Relations between Man and Wife

The following verse if followed in practice as it is meant to be followed, primes the man for appropriate sexual behaviour:

(2:223) "Your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter), and give (these) good tidings to those who believe".

The preceding verse (2:222) is about avoiding sex when the wife is having her periods. What this verse says is that outside the prohibition for sex during the period the wife is having her menses; sex is permissible anytime and in any position (not just the 'missionary position').The state of mind in which to approach the wife for sex is governed by the rest of the verse which says "do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter)"

We know from psychological studies the power of priming. A person who does an act of kindness before sex is primed for behaving kindly towards his wife. Also the admonishment to fear Allah and to know with certainty that they are to meet Allah eliminates every chance of cruelty or coercion. The verse doubly ensures that the sexual act will be with kindness and generosity and without cruelty or coercion. Also the requirement of fulfilling conditions  before sex, elevates the act itself to the status of  a precious gift from the Almighty which requires thanks to be shown by performing some good act even before enjoying the gift.

Procedure for Resolving Marital Conflict

(4:34) Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband´s) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them, refuse to share their beds, beat them; but if they return to obedience, seek not against them means (of annoyance): For Allah is Most High, great (above you all).

The verse covers the process for resolving serious domestic conflict. The next verse talks about arbitration by close relatives from both sides if the measures in 4:34 fail to produce the desired results and assures that Allah will cause their reconciliation should both desire peace.

(4:35) if ye fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.

This verse is discussed in greater detail in my article:

Qur’anic Wisdom: Marriage and Treatment of Women

For Those Who Seek Divorce, Is There A Need To Justify It?

No reason is required to be given for divorce. The man or the woman does not have to fling dirt on their spouse to create a “valid reason” for seeking divorce. They do not require anyone’s permission or approval and therefore are in no need to justify the act. In practice however, a woman needs the help of the judicial process to seek a divorce since the contract of marriage is cemented with the payment of Mehar or marriage gift besides numerous gifts that a wife receives from her husband in the course of their relationship. The husband can ask for these back as a condition for agreeing to the divorce initiated by his wife. In case the man initiates the proceedings, the Quran clearly rules that the husband cannot take back anything that he gave to his wife.

The Quran discourages divorce if it is based on a subjective dislike for the other person. It also favours reconciliation to divorce:

4:19 says “If ye take a dislike to them it may be that ye dislike a thing, and Allah brings about through it a great deal of good.”

(4:128) If a wife fears cruelty or desertion on her husband´s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best; even though men´s souls are swayed by greed. But if ye do good and practise self-restraint, Allah is well-acquainted with all that ye do.

What the Quran does not favour is keeping the woman against her wish and practicing cruelty on her in any form.

The Divorce Process in the Quran

A man/woman may choose to end the relationship for any reason. Once they have so decided, they have to follow the process as described in the Quran. The process for divorce by the man starts with an intention to divorce that is made known to Allah and is in the form of an oath.

لِّلَّذِينَ يُؤْلُونَ مِن نِّسَآئِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ فَإِنْ فَآؤُوا فَإِنَّ اللّهَ غَفُورٌ رَّحِيمٌ

وَإِنْ عَزَمُواْ الطَّلاَقَ فَإِنَّ اللّهَ سَمِيعٌ عَلِيمٌ

2:226 Lilladhīna (For those who) Yu'ulūna (take an oath to abstain) Min (from) Nisā'ihim (their wives) Tarabbuşu (a waiting period)  'Arba`ati ' (of four) Ash/hurin (months) ۖ Fa'in (then if) Fā'ū (they return) Fa'inna (then indeed) Allāha Ghafūrun Raĥīmun (Allah is oft Forgiving and most Merciful)

2:227 Wa 'In (And indeed) `Azamū (if they resolve) Aţ-Ţalāqa (on divorce) Fa'inna (then indeed) Allāha Samī`un `Alīmun (Allah is all Hearing and all Knowing)

(2:226) For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, Allah is Oft-forgiving, Most Merciful.

Is saying “Talaq” to the wife necessary? No, it isn’t. The wife may remain unaware of the man’s intention to divorce and his oath to abstain from sex until completion of the Iddat period followed by physical separation or complete divorce. The mere taking of oath is deemed as divorce even though the woman may be unaware of it. This is followed by abstention from the wife for a four month period that covers his wife’s three menstrual cycles. During this period of abstention, the man may regret his decision and choose to reunite and he is free to do so. What about his oath? The fact that he could not keep his oath means that the oath was taken in a state of mind that was not stable and firm. It was a thoughtless oath. And Allah says:

(2:225) Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing.

Also in verse 2:226 cited above, Allah says that “if then they return, Allah is Oft-forgiving, Most Merciful” meaning that if the man goes unto his wife and cohabits, Allah will forgive him for the thoughtlessness in his oath and he is free to reunite with his wife and the divorce is off and he is relieved of his unintended oath. If the man did not make it known to his wife about “his oath” which amounted to “divorce” and has reunited, the woman as well as the man has been spared much agony and pain and the reunion is much easier.

In a four month period of abstention which is unusually long, the wife will make attempts to break the ice and especially as she is unaware of the man’s “oath amounting to divorce”, in which case there is no hurt or pride or resentment that is involved. A woman making such an attempt knows how to break her man’s resolve and will succeed more often than not. If they cohabit, the divorce is off and the woman has remained unaware of it. If the man is successfully able to hold back, his wife is then sure to ask whether he intends divorce. This is when he will for the first time end up hurting his wife and making the process formal by saying yes. He is therefore likely to do so after careful and serious consideration. Maybe, his resolve will break down when faced with this situation and he may decide to reunite. 

The oath for abstention from wife at the beginning of the Iddat period is the first divorce.

(227) But if their intention is firm for divorce, Allah heareth and knoweth all things.

At the end of the four month Iddat period is when the man needs to make a formal announcement to his wife that he is divorcing her if he has not done so earlier.

(228) Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise.

In case she is carrying a child in her womb, she must make this known to the husband and the Iddat period is then extended upto the delivery of the child. If the man wishes for reconciliation during this period, then although the wife’s wish to remain in wedlock is important, the husband’s wish for reconciliation shall be allowed to prevail and he can revoke the divorce.  Please make a note that only in case the woman is pregnant that the man has a better right to revoke the divorce. Else, it can be revoked only by mutual consent.

The wife need be aware of only one of the two divorces. If she is not pregnant, then she is free to leave her husband at the end of the period of Iddat, or after a divorce following abstention for four months without further ado, and even reunite with a former husband in a fresh marriage.

The divorce once made known to the woman can be revoked only by mutual consent unless the woman is pregnant.  A divorced wife cannot be compelled to remain in the relationship after she completes the period of Iddat.

(2:232) when ye divorce women, and they fulfil the term of their (´Iddat), do not prevent them from marrying their (former) husbands, if they mutually agree on equitable terms. This instruction is for all amongst you, who believe in Allah and the Last Day. That is (the course Making for) most virtue and purity amongst you and Allah knows, and ye know not.

(229) A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness…..

(231) When ye divorce women, and they fulfil the term of their (´Iddat), either take them back on equitable terms or set them free on equitable terms; but do not take them back to injure them, (or) to take undue advantage; if any one does that; He wrongs his own soul. Do not treat Allah´s Signs as a jest, but solemnly rehearse Allah´s favours on you, and the fact that He sent down to you the Book and Wisdom, for your instruction. And fear Allah, and know that Allah is well acquainted with all things.

As per verse 229 and 231 cited above, the couple is free to reunite if they mutually agree to do so before they have physically parted ways as a divorced couple. The physical parting of ways is an important part of the divorce and the divorce is revocable until such time. The actual packing of bags and leaving is when the couple face their ultimate “moment of truth” when they will know for sure whether their earlier oaths and resolves were thoughtless or not. There are many who will break down at this stage and choose to reconcile rather than go through the process. Until such time, the couple may show all the resolve and firmness of mind but when faced with the ultimate moment of truth, they may realize that their earlier oaths were thoughtless. They are free to reunite with Allah’s blessings and forgiveness for their earlier thoughtlessness.

If and when they separate physically as a divorced couple after completion of the period of Iddat, the divorce then becomes irrevocable and they cannot reunite unless the condition in verse 2:230 below is satisfied:

(230) So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite; provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand.

As can be seen, only one pronouncement of Talaq is necessary. The divorce takes place with the oath to Allah which marks the beginning of the period of Iddat. However, if this turns out to be a thoughtless oath, Allah forgives man for it. The four month period of abstention, the second divorce or the formal announcement of the divorce at the end of this period and the final physical parting of ways is a process to test as to how thoughtful or thoughtless was the oath/resolve and intention to divorce. They are free to reunite with mutual consent until the divorce becomes irrevocable with the final physical parting. The wife is free to leave her husband once he has pronounced divorce to her after completing the Iddat period and only if she is pregnant, does the husband get a right to unilaterally revoke the divorce during the extended Iddat period.

Treatment of the Divorced Woman:

The following is the treatment ordained in the Quran in verses 65:1 to 6

1.       Keep them in your house during the Iddat period and let them live in the same style as you live. (Please note that the couple is considered divorced during the Iddat period although the divorce is revocable at this stage and the woman may be unaware of it)

2.       Do not cause them any annoyance.

3.       After they complete the period of Iddat, divorced women are free to leave and even reunite with a former husband in a fresh marriage. Do not prevent them from doing so.

4.       Before the physical parting of ways, the couple is free to reunite with mutual consent. The physical separation as a divorced couple completes the divorce process after which the divorce is irrevocable.

5.       Do not take back any part of the dower even if the dower was very large and generous. Do not treat them harshly to make them part with the dower (4:19,20)

6.       Take witnesses from her side while settling her claims

7.       If they are carrying a child then the Iddat period is up to delivery of the child. (If the woman is carrying a child, then the husband has a right to revoke the divorce should he desire reconciliation)

8.       Support them if they suckle the child after delivery according to what is just and reasonable and based on mutual consultations and agreement.

The divorce is a solemn process and begins with an oath to Allah and not by screaming out “Talaq” at the wife. A wife is not the property of man or owned by him but the gift of Allah and his Mercy and held in trust to Him. Man is accountable to Allah for the way he treats the trust of Allah and therefore the process of divorce begins by addressing Allah. The decision is therefore to be taken without anger or rancour and after careful consideration.

Where Does The Triple Talaq Process Stand?

We have seen that as far as the woman is concerned, only one pronouncement by the husband is enough and she is free to walk out of the relationship after completing her iddat period unless she is pregnant, in which case the husband can revoke the decision unilaterally during the extended Iddat period. The decision can also be revoked only by mutual consent any time before they physically part company as husband and wife. The two divorces mentioned in the Quran are the oath for abstention which begins the period Iddat and the one at the end of the Iddat period. Of these two, only one divorce needs to be pronounced either at the beginning of the Iddat period or after. At the end of the Iddat period, they either part company as husband and wife which then makes the divorce irrevocable or mutually agree to reunite. The number of times Talaq is pronounced is immaterial.

 If a divorce is revoked, that ends the process and it will not count for anything in the future.  A fresh divorce process initiated any time in the future will again start with the first divorce which can simply be an oath for abstention followed by the Iddat period and the second divorce after which they either part company or mutually decide to reunite. This can repeat any number of times as long as the wife is a willing party to the revocation before they part company as husband and wife at the end of the Iddat period. Once they part company at the end of the Iddat period, the divorce is complete and irrevocable. 

The triple Talaq process in the man-made Shariat law is sheer mockery of the Quran. The process described in the Quran empowers the woman to end the relationship even after a single pronouncement of Talaq. The process also allows both to mutually agree to revoke the divorce before they actually part company as husband and wife at the end of the Iddat period irrespective of the number of times Talaq was pronounced. The triple Talaq process is based on a misunderstanding of the meaning of verse (2:229) “A divorce is only permissible twice…….” which is taken to mean the number of times Talaq is pronounced. As we have seen, pronouncing the word once is enough and even a million times insufficient, if they mutually decide to revoke the divorce before they have parted company as husband and wife.

The Quranic Shariat maintains a balance of power as closely as possible. When it is the man who initiates the divorce process, he loses control over it thereafter and no revocation is possible without the consent of the woman - the only exception being if the woman is pregnant. In the man-made Shariat, it is the man who calls all the shots. He can revoke at will after two pronouncements of Talaq and while the divorce becomes irrevocable on the third pronouncement, he is often in a position to make his wife to go through a “Halala” process in order to reunite with her. The Quran does not prescribe a “Halala” process and the very word “Halala” and the sense in which it is used blasphemes the Quran. The Quran merely allows a woman to marry a former husband after her divorce with another man and this provision is not to enable a man who has divorced his wife to reclaim her nor is it necessary for that purpose since the divorce process is four month long and the couple can reunite anytime with mutual consent before they have physically parted ways as husband and wife irrespective of the number of times Talaq was pronounced. Only one pronouncement is necessary and superfluous pronouncements is just that – superfluous!

Treatment of Divorced Women

The relevant verse from the Quran is:

(2:241) for divorced women Maintenance (should be provided) on a reasonable (scale) This is a duty on the righteous.

The above verse is open ended. What is maintenance on a reasonable scale is decided by the society in which one lives and by what is customary in that society and is not meant to be based on traditions of the seventh century Arab society. If it were so, the verse would not have been so open-ended.

The Shah Bano case was decided by the SC based on this verse alone. The Muslim Women (Protection of Rights on Divorce) Act, 1986 which was ostensibly meant to reverse the SC verdict achieved little as is clear from later judgments such as Shamima Farooqui versus Shahid Khan case, and the fact that a bench of the SC upheld the judgment in the Shah Bano case. The Muslim Women (Protection of Rights on Divorce) Act 1986 proved to be in fructuous because it was based on the premise that the SC had meddled with the Shariat law and the SC showed that it had not meddled with the Shariat law in the Quran but had in fact based its verdict on the clear wording of the Quran in verse 2:241.

What the Muslims lost because of the ill-advised agitation against the SC judgment in the Shah Bano case is history. Without it, Babri Masjid would have remained a local issue; there would have been no Mumbai riots, serial bombing, Godhra, the Gujarat riots and the numerous other incidents and the communal polarization and radicalization that we witness today. I am not sure whether the Ulema even realize how much the Muslims have lost without achieving anything in their agitation in the Shah Bano case. They behaved like a bunch of ignoramuses who do not even know their own Quran and had to be told by the SC the meaning of verse 2:241. And yet they continue to be resistant to change and to reason!

The Way Forward

The way forward is obvious. The SC judgment in the Shah Bano case has demonstrated that the understanding of the Ulema as to what constitutes the Shariat is open to being contested in a court of law. What constitutes the Shariat is that marriage is a social contract in which the parties agree to unite in a marital relationship under certain explicitly stated conditions in the presence of witnesses. The Shariat does not even require the presence of a Qazi or registering of the marriage with the Waqf Board. A person is not required to produce a marriage certificate for any purpose. A mere declaration of the name of spouse for purposes of employment even for a government job is enough. No marriage certificate is required as proof for a passport either in which the name of spouse declared is mentioned as the name of the spouse. Only for a change in name consequent to marriage requires a marriage certificate but if the woman chooses not to change her name which is the case for most Muslims, and is in accordance with the Shariat, and then a marriage certificate is never put to any use.

What this means is that if a Nikahnama prepared by the Bharatiya Muslim Mahila Andolan is used, it is as good as any other Nikahnama in the eyes of the law. Or if a customized agreement duly stamped is used, that would serve the purpose as well.

As far as the divorce process is concerned, a Muslim is free to follow his own understanding of the Shariat, but after due diligence and without having reason to believe that he/she may be in error. He/she does not need anyone’s help to tell them when a divorce has become irrevocable or what the correct process is. They need the help of the courts or the Qazi only when they disagree. All that the Muslims need is proper education so that they can decide for themselves and not allow the Quazis and Muftis to decide for them what is right. The Muslim society as a whole is responsible for its travails and not any particular section of their society. Change will come about when individuals become knowledgeable and learn to take responsibility for their own lives.

Related Article:

Qur’anic Wisdom: Marriage and Treatment of Women

http://www.newageislam.com/debating-islam/qur’anic-wisdom--marriage-and-treatment-of-women/d/8367

Naseer Ahmed is an Engineering graduate from IIT Kanpur and is an independent IT consultant after having served in both the Public and Private sector in responsible positions for over three decades. He is a frequent contributor to NewAgeIslam.com.

URL: http://newageislam.com/debating-islam/naseer-ahmed,-new-age-islam/the-process-for-divorce-in-the-quran/d/104516