format_quote Originally Posted by
innocent
Salam alaikum.
I have read different views regarding this matter. Which is right.
What if the husband is unreasonable and refuses to give his consent?
Jazakallah khair
Asalaamu Alaikum Wr Wb,
In the name of Allah, Most Compassionate, Most Merciful,
In Islam, divorce is considered to be the worst of the lawful things. The Messenger of Allah, (Allah bless him & give him peace) said:
“Divorce is the most hated of all lawful (halal) things in the sight of Allah”
(Sunan Abu Dawud, no. 2178).
Although Islam emphasises the importance of marriage, it is a humane and practical religion which recognises the fact that there may be situations in which dissolving the marriage bond may be in the better interests of the individuals concerned and of society at large. Divorce is allowed as a last resort, rather as amputation or major surgery may be the unpleasant but a necessary step needed to save a person's life. If divorce was forbidden, then animosity and adultery may become rampant. To save individuals and society from the greater evils, divorce has been permitted. However, it is not a step to be taken lightly or hastily. Sincere attempts at reconciliation are to be made first and - as in the case of marriage - the rights and welfare of women are to be upheld.
Imam Abu Hamid al Ghazali (Allah have mercy on him) states:
“The greatest care should be taken to avoid divorce, for, though divorce is permitted, yet Allah disapproves of it. If divorce becomes essential then the woman should be divorced kindly, not through anger or contempt, and not without a valid reason. After divorce a man should give his former wife a present and not announce to others any of her shortcomings”
Due to this spirit of Islam, Allah Most High granted the right of divorce to the husband and not the wife or any other third party. If one was to look at the verses in the Qur’an that deal with divorce, one will see that the address of divorce is directed to the husbands and not the wives.
For example, Allah Most High says:
“O Prophet! When you divorce women, divorce them at their prescribed periods, and count their prescribed periods, and fear Allah your Lord”
(Surah al-Talaq, 1).
It should be remarked here that in the first instance the Messenger of Allah (Allah bless him & give him peace) is addressed individually, as the teacher and representative of the community. Then the actual directions are addressed to the community collectively.
Allah Most High says:
“So if the husband divorces his wife (irrevocably), he cannot, after that, remarry her until after she has married another husband and he has divorced her”
(Surah al-Baqarah, 230).
And:
“When you divorce women, and they fulfil the term of their Idda, either take them back on equitable terms or set them free on equitable terms, but do not take them back to injure them or take undue advantage”
(Surah al-Baqarah, 231).
And:
“There is no blame on you if you divorce women before consummation or the fixation of their dower”
(al-Baqarah, 236).
And in one verse, it is quite clear:
“And him whose hands is the marriage tie”
(al-Baqarah, 237).
The above verses are just some of the examples which indicate that the right to divorce has been given to men. There is not one verse in the Qur’an where divorce has been attributed to the wives. The same can be understood from the Traditions.
One must always remember that Shariah injunctions are fully in conformance with logic, wisdom and are prescribed for the betterment of the society as a whole. We as Muslims believe that nothing has been ordained by Allah Almighty except that there is benefit in it for us. We are not from those that attempt to twist the rulings of Shariah in order to appease ourselves and the so called ‘modern world’.
Wisdoms behind the right of divorce being given to men
There are many reasons and much wisdom in giving this right to the husbands, just to mention a few:
1) As mentioned previously, divorce is the most detested of the lawful things in Shariah. Therefore, in order to prevent unnecessary divorces, there was a great wisdom in giving the right of divorce to men.
The reason for this is that, in the case of a divorce, although both the husband and wife suffer as a result (psychologically for instance), a man encounters many financial disadvantages and has the additional burden of a heavy responsibility. He loses the dowry (mahr) that was paid to the woman, he will have to pay Mahr for the second time if he marries again, the wife is entitled to financial support and maintenance (nafaqa) whilst in the waiting period (idda), she is entitled to child maintenance if young children are in her custody, etc…
The husband has so much to lose financially if he divorces his wife and this acts as a natural deterrent from abusing his right of divorce. If women had such a right, however, there would be no such check on them because they do not have any financial responsibilities towards their husbands.
2) There is no doubt in the fact that the Almighty Creator created men and women differently in many ways, physically, psychologically, mentally and emotionally. Both men and women have been given certain qualities, features and characteristics and according to these characteristics, Allah Most High divided their responsibilities.
Men and women have been given certain duties and responsibilities that suited them and that it conformed to the way they were created. The responsibility of providing the daily bread was placed on the shoulder of the husband, as it requires physical strength and men were naturally created with more physical power than women. Similarly, the responsibility of looking after the household affairs (to a certain degree) was given to the woman, as that was more suited to her.
This is not a question of injustice or sexual discrimination. Let me give you an example: I had two friends that were ready to help and assist me due to seeing me overloaded with work. Now, I had two things that needed to be done, one was to thoroughly clean my office with the moving of heavy furniture, and the other job was to calculate my accounts. One of my friends was physically stronger and had a well-built body, whilst the other was not so quite fortunate in this regard, but had a great brain. It will only be from common sense that I hand the job of calculation to the one who was more able mentally and the lifting of heavy furniture to the one who had more strength, might and power. If the contrary was done, it would be condemned by everybody.
Similar is the case with Allah Almighty in that He distributed the responsibilities and rights between men and women in a way that was suited to them. Women naturally have been created with this great quality of compassion, warmth and sensitivity. They are easily pleased and made angry. This is something that they have naturally been created with. If the husband becomes upset, it may take months in order to overcome his stubbornness and please him, whilst the wife can be pleased very easily no matter how displeased she was. This is one of the great qualities women possess and we as men should definitely learn from it.
Due to women being more sensitive then men, it was natural (keeping in mind the dislike of divorce in Islam) that the right to divorce was not given to them. If it was, then there would be many divorces and break up of marriages. They would issue divorces in the heat of the moment and regret it later. Ask married couples how many times the wife divorces her husband during the day, but from the heart she truly and genuinely loves him and could not consider a moment of her life without him. A man due to his doggedness and generally having more ability to reflect and ponder was duly given this right of divorce.
These are just two of the wisdoms behind the right of divorce been given to the man.
This does not in any way mean that the husband may abuse this right and harm, abuse and mistreat the wife without her having any means to end the marriage. Islam is a complete religion and respects the rights of all. There are various grounds on which a woman may seek the annulment of her marriage.
1) The following are the grounds on which the wife may seek a divorce from her husband at a court of an Islamic country or in the absence of an Islamic Court (as in western countries) from a committee of a few religious people that consists of at least one scholar of Islamic law:
a) Inability or refusal of the husband to financially support his wife (even if she happens to be rich, it is still the full responsibility of the husband to maintain her).
b) Abuse and mistreatment of the wife (which includes beating and swearing, cursing and attempting to force her to do wrong).
c) Impotence or any other illness that prevents the husband from fulfilling the wife’s sexual needs (in recognition of the wife's legitimate instinctive needs).
d) Incurable, repulsive disease in the husband like leprosy (or aids according to the contemporary scholars).
e) Insanity in the husband
f) Extended absence or desertion of the husband
g) The husband deceiving and concealing information regarding himself at the time of marriage
h) The relationship becoming severely damaged in that there is allot of hatred between the spouses and it is impossible for them to live a peaceful life
The above are brief examples in which a woman can seek a divorce. There are certain rules, regulations and principles with regards to the procedure and one should consult a reliable scholar before taking any action.
2)
There are certain situations where a woman may get a divorce even without the intervention of an Islamic court:
a) Delegating of the husband the right to divorce to the wife after marriage
b) Delegating this right at the time of contracting the marriage
c) Delegation of this right before the marriage and the marriage is attributed to this delegation.
d) Conditional delegation, where at the time of signing the marriage contract, the wife stipulated certain conditions to her husband, the breach of which would result in a divorce.
There are certain rules for this also. For more details, see a post on the Fiqh forum with regards to stipulating conditions in marriage.
Shariah primarily gives the unilateral right to divorce to the husband. However, under certain conditions, the wife also has a right to seek for the annulment of the marriage. This is the ruling that was chosen for us by our Creator and it is totally in accordance with logic, common sense and the betterment of the society as a whole.
Although the power to issue a divorce belongs in principle to the husband, he may delegate this power to his wife or a third party, with or without stipulating conditions. Once this power is delegated, it can not be revoked or withdrawn. This is known in the Fiqh terminology as
“Tafwid”.
This is based upon the incident where the Messenger of Allah (Allah bless him & give him peace) gave his wives the option to remain in his marriage or be divorced. Allah Most High said to the Messenger of Allah (Allah bless him & give him peace):
“O Prophet! Say to your wives: “If it be that you desire the life of this world, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.”
(Surah al-Ahzab, 28)
The Messenger of Allah (Allah bless him & give him peace) deserted his wives for a period of around one month, after which the above verse was revealed.
Sayyida A’isha (Allah be pleased with her) narrates: “When the Messenger of Allah (Allah bless him & give him peace) was commanded to give an option (of divorce) to his wives, he started with me saying: “I am going to mention to you a matter in which you should not (decide) hastily until you have consulted your parents.” She (A’isha) said that he already knew that my parents would never instruct me to seek separation from him. She said: “Then he said: Allah, the Exalted and Glorious, said: “O Prophet, say to your wives: If it be that you desire the life of this World, and its glitter, then come! I will provide for your enjoyment and set you free in a handsome manner. But if you seek Allah and His Messenger, and the Home of the Hereafter, verily Allah has prepared for the well-doers amongst you a great reward.” Sayyida A’isha (Allah be pleased with her) says that I said to the Messenger of Allah (Allah bless him & give him peace): “About this should I consult my parents, for I desire Allah and His Messenger and the abode of the Hereafter?” She (A’isha) said: “Then all the wives of the Messenger of Allah (Allah bless him & give him peace) did as I had done.”
(Sahih Muslim, no. 1475)
Sayyida A’isha (Allah be pleased with her) also narrates that the Messenger of Allah (Allah bless him & give him peace) gave us the option (m: to remain with him or to be divorced), so we chose (and preferred) Allah and His Messenger. Giving us that option was not regarded as a divorce.”
(Sahih al-Bukhari, no. 4962)
Imam al-Sarakhsi (Allah have mercy on him) states:
“If a man delegates the right to divorce to his wife, then this is similar to giving an option (khiyar) in trade, except that this is completely valid and logical, for the husband is the owner of issuing the divorce, thus he is in a position of delegating something that he owns. Hence, it will be binding, in that the husband will not have the right to revoke this delegation.”
(al-Mabsut, 7/221)
The Companions (Sahaba, Allah be pleased with them all) also unanimously agreed upon the validity of delegating the right to divorce to the wife.
(See: al-Mawsili, al-Ikhtiyar li ta’lil al-Mukhtar, 2/166 & Zaylai’i, Nab al-Raya, 3/229)
Rules concerning the delegation of the right to divorce (tafwid)
There are certain rules and regulations with regards to this delegation that need to be understood properly:
1) When the husband delegates the right to divorce to the wife, she will only have this right in the session (majlis) that she is in. If she did not exercise her right, then this right will go in vain. However, if the husband delegates this right for a specific period (e.g. 5 years) or permanently, then she will have this right accordingly.
(Radd al-Muhtar & al-Ikhtiyar)
2) The wife will only have a right to divorce herself according to what was delegated to her. If the husband delegated to her the right to divorce herself once (and not two or three times), or he delegated the right to divorce herself irrevocably, then she will have this right accordingly. She will only be allowed to utilize this right in a manner it was delegated to her.
(Radd al-Muhtar)
3) If the husband gave his wife the right to divorce herself a specific number of divorces, then she will not have a right to divorce herself more than the number of divorces that were delegated to her.
4) Once the husband delegates this right to his wife, he can not overturn or revoke it.
(Durr al-Mukhtar)
5) If the right to divorce was delegated for a specific period of time and the wife did not utilize this right in that period, then upon the termination of this period, the right will also no longer remain.
(al-Ikhtiyar)
6) By delegating the right to divorce, the husband still has a right to divorce his wife. Delegation of this right does not imply that the husband no longer has a right to issue a divorce.
(al-Ikhtiyar)
7) If the wife rejects accepting this right of divorcing herself, then if the delegation was permanent, her rejection will be of no consequence, in that she will still have this right permanently despite rejecting the offer. However, if this delegation was not permanent, then by rejection, the right to divorce will terminate.
(al-Ikhtiyar)
Different stages of delegation
There are different stages and times when the man delegates the right to divorce to the woman. In summary, there are three situations here:
a) If the delegation (tafwid) took place after the spouses had entered into wedlock, then this, without doubt, can be done. However, the husband here will be free to accept this, as he is already in the marriage.
b) The second situation is when this delegation (tafwid) takes place at the time of contracting the marriage.
This is also permissible and valid, provided one condition is met, which is that the offer of marriage is initiated by the woman coupled with the demand for Tafwid, and the man accepts this. If the opposite takes place, it will be void.
Imam al-Haskafi (Allah have mercy on him) states:
“If the man married her on condition that she will have the right to divorce herself, then this will be valid.”
Allama Ibn Abidin (Allah have mercy no him) commentates on this by saying:
“(Imam al-Haskafi’s statement
“this will be valid”), this is subject to the condition that the woman initiates the contract of marriage with her offer by saying:
“I marry myself to you on the condition that I will have the right to divorce myself whenever I wish” and the husband says:
“I accept this”. However, if the husband initiated the contract of marriage, she will not have a right to divorce herself, as mentioned in al-Bahr.” (Radd al-Muhtar ala al-Durr, 3/329)
Thus, if the woman (or her representative) initiated the marriage contract by the offer (ijab) and asked for the right to divorce, then she will be entitled to this right, and whenever she divorces herself, it will be valid.
c) The third stage of Tafwid is when it takes place before the actual contract of marriage. In other words, the woman demands the right to divorce herself if they are to get married.
This is also permissible and valid, but also subject to one condition, that the husband attributes the Tafwid to the marriage. Meaning he says: “If I marry you, then you have the right to issue one irrevocable divorce upon yourself.” However, if the man did not attribute this to the marriage, it will be void.
It is stated in Durr al-Mukhtar:
“The condition of its validity is having ownership (m: by actual marriage) or referring it to the marriage…
such as he says: “If I marry you, then you are divorced (m: or you have the right to divorce yourself).”
(See: Radd al-Muhtar ala al-Durr al-Mukhtar, 3/344 & al-Ikhtiyar, 2/ 170)
And Allah knows best
Sheikh Muhammad ibn Adam
Darul Iftaa
Leicester , UK