Divorce in Qur’an and Shari’ah
by Asghar Ali Engineer
The other day I read an article on divorce in Inquilab, an Urdu Daily from Mumbai written by a well known ‘alim and member of Muslim Personal Law Board Khalid Saifullah Rahmani. The title of the article was “Ghusse ki haalat ka f’al m’utabar hota hai to talaq kyun m’utabar nahin hogi” i.e. if generally anything done in anger is valid why not a divorce given in anger? If any lay person had written this article even then it would have been considered outrageous and when written by one who is considered an ‘alim, it is much more so.
The Maulana argues that generally divorce is given in state of anger only and he argues if a husband is happy with his wife, will he gift her divorce? Divorce is given only when husband gets angry with his wife due to some act of hers. And then he says not only divorce but also several things are done in the state of anger. One would not like to comment on such arguments had it not involved fate of hundreds of Muslim women. One can only ring ones hands at such status of our prominent ‘ulama. They take divorce so lightly and break up of family for them is only a matter of husband’s anger with his wife.
Maulana Rahmani also maintains in this article that all fuqaha’ have consensus that divorce takes place if given in state of anger because in this state as in this state man remains conscious of his act. Then the Maulana goes on to quote noted jurist Allama Abidayn Shami who has quoted Hafiz ibn Qayyim (very well known jurist and ‘alim and disciple of Ibn Taymiyyah) and argues that anger has three stages: one that no change has occurred in his reasoning power due to anger and what he says, he should be understanding that and he should remain aware of its consequences and divorce pronounced in this state of anger will be valid. Second state is of extreme anger when man is unable to understand consequences of what he is doing and lacks in his will power. In this status divorce will not be valid since such a status of anger borders on madness and divorce given in a state of madness is not valid. Third state of anger is between the two states i.e. when man is partially aware of what he is saying and doing and partially not and divorce given in this state will also not be valid.
These are hardly acceptable arguments and at best these are rationalization or justification of divorce given in a state of anger. One would like to ask Maulana and the jurists he quotes who will determine what state of anger one is when pronouncing divorce? Is there any objective criteria available to measure husband’s anger at the time of pronouncing divorce? Has any instrument like thermometer available for measuring the degree of anger? And for these jurists even two witnesses for divorce are not necessary as prescribed by the Qur’an?
A divorce simply takes place if a husband pronounces divorce thrice in one breathe and no witnesses are required. If witnesses are not required who will bear witness as to which state of anger divorce was pronounced? Will husband’s own statement will be relied on? And if husband is determined to divorce his wife, how can his statement as to what state of anger he was in at the time of divorce can be acceptable. Who will decide what state of anger he was at the time of pronouncing divorce? Very strange rationalization indeed for justifying divorce in a state of anger.
Also, these arguments are completely at variance with what Qur’an says about divorce. Firstly, Qur’an requires, as pointed out earlier, two witnesses for divorce. Also, there is not even indirect evidence in Qur’an for giving divorce in a state of anger. See these two verses of Qur’an from Chapter 65 (Surah Al-Talaq) “O Prophet, when you divorce women, divorce them for their prescribed period, and calculate the period; and keep your duty to Allah, your Lord. Turn them not out of their houses – nor should they themselves go away – unless they commit an open indecency. And these are limits of Allah. And whoever goes beyond limits of Allah, he indeed wrongs his own soul…” (65:1)
And we find in second verse of this chapter (65), “So when they have reached their prescribed time, retain them with kindness or dismiss them with kindness, and call to witness two just ones from among you, and give upright; testimony for Allah. With that is admonished he who believes in Allah and the latter Day. And whoever keeps his duty to Allah, He ordains a way out for him.
Let Maulana Rahmani note that Qur’an not only does not talk of divorcing in a state of anger but requires husband to divorce her (fariquhunna) with kindness. Also, she should not be thrown out of her marital home by the husband nor should she herself leave her marital home unless she comes with an indecent act (bi fahishatin). Also, Qur’an wherever talks of divorce, requires husbands to divorce them or separate them, with kindness. The verse 229 of Chapter 2 also talks of kindness while letting them go or separating them.
The verse is as under:” Divorce may be (pronounced) twice; then keep them in good fellowship (bi m’arufin) or let (them) go with kindness (tasrihun bi ihsan). Also so ensure full justice for women Qur’an requires arbitration before divorce (4:35). Thus there cannot be fairer method for divorce than the one prescribed by the Qur’an.
It is so unfortunate that Muslim jurists, under the influence of patriarchal ethos of their societies, they ignored all Qur’an injunctions and gave more credence to prevalent social practices and that too in the name of Islam. All this corpus of laws are referred to as Islamic laws of divine origin. In total contradiction to what Qur’an prescribes, the jurists, not only justified divorce given in a state of anger but also described states of anger.
What is more central to Islam - justice (‘adl, qist) or state of proper consciousness in anger? Forget about anger, Qur’an does not approve of divorce in normal state of consciousness if proper method is not followed for giving divorce which ensures justice for wife. Any unjust act is zulm (oppression, wrong doing). According to the Qur’an women must be treated with fairness and justice and no act, committed in a state of anger (whatever the state of anger) can be a just act.
Maulana Rahmani’s argument is very strange indeed that husband if not in a state of anger, will he divorce when he is happy with wife? Divorce, in fact should never be given in a state of anger at all. Whatever state of anger, intense, extreme or moderate, one does loose control of oneself and even if he is conscious of consequences of his act, is unable to think coolly and rationally. And Qur’an requires husband to remain kind even when divorcing her. Can anyone be kind while pronouncing divorce in a state of anger? Kindness and anger are two opposite states of mind.
Also, there are several instances in which husband pronounce divorce on getting angry on petty quarrels with wife. Can then such divorces be justified? Often husband repents after pronouncing divorce thrice in a state of anger but our jurists maintain his wife has been irrevocably divorced and he cannot take her back unless she marries some other man and he divorces her.
Husband and wife often quarrel and husband gets angry temporarily and is provoked to pronounce divorce. So such petty quarrels would become basis for divorce. This is not only legally wrong but also morally totally wrong. But such are our jurists and ‘responsible’ members of personal law board. Can Muslim women then ever expect justice from them?
On one hand these jurists will argue that Islam greatly raised status of women and in pre-Islamic society women were treated as chattels and, on the other hand, to maintain manly authority, bring back those pre-Islamic practices in divine garb. Qur’an put the entire responsibility of treating women fairly and with kindness on men and our jurists gave total authority to men to throw their wives away whenever they liked.
There is not a single verse in Qur’an which exhorts women to treat their husbands with kindness while in their nikah (marital bond) whereas there are several verses requiring men to treat their wives with kindness. This was because women were in weaker position in that society and Islam has all the sympathy for weaker sections of society. In fact Islam lad greatest stress on giving justice to weaker sections of society including slaves, servants, orphan, widows and the poor.
As we have repeatedly pointed out Qur’an’s sympathy is with mustad’ifin (those who have been weakened) (5:28) and our Ulama show all the sympathy with men who had all the power over women in that society (and still this continues even in most modern society) and juristically gives all the power over them. Let us remember justice is more central than opinion of any jurist howsoever eminent that jurist may be. Justice is Qur’an’s central principle which cannot be sacrificed on the altar of any jurist’s opinion.
If we have to project Islam as religion of justice and compassion for weaker sections of society we will have to revise our jurisprudence completely and prioritize justice over opinions of all past jurists of eminence. Eminence is not a principle it is only a social status whereas justice is a moral value central to Islam. Divorce is a very serious act and should be treated with utmost caution and responsibility. It breaks families and causes trauma to wife and children. According to a well-known hadith Allah has permitted act of divorce with utmost reluctance. Thus neither Qur’an nor authentic hadith are problem for women, it is male authority which is.
Centre for Study of Society and Secularism, Mumbai
(Secular Perspective April 1-15, 2008)