THE NATURE OF DOMESTIC PEACE IS DIFFERENT FROM THAT OF OTHER KINDS OF PEACE
There is no doubt that there should be peace and harmony between the husband and wife, but the peace and harmony which should prevail in conjugal life is very different from the peace which should exist between two colleagues, two partners, two neighbours and two neighbouring countries. Peace and harmony in conjugal life is similar to the peace and harmony which should exist between the parents and the children. It is equivalent to tolerance, sacrifice, interest in the destiny of one another, breaking the barrier of duality and sharing the happiness and grief of each other. In contrast, peace and harmony between two colleagues, two partners, two neighbours or two neighbouring countries simply mean non-encroachment on the rights of each other. Between the two disputing countries even armed peace is enough. Should a third power intervene and set up a buffer zone between two countries to prevent a direct clash between their armed forces, peace is secured, for political peace means only non-aggression and no clash.
But domestic peace is different from political peace. In this case non-encroachment on the rights of each other is not enough. Armed peace is of no use. What is required is the union of souls, which is something higher and more basic. The same is the case with the peace and harmony between the parents and the children. In that case also something higher than non -aggression is necessary. Unfortunately, for historical and sometimes even regional reasons, the West does not realise the importance of the sentiments. For it, there is no difference between domestic peace and political or social peace. The people of the West think that as peace between two countries can be ensured by the concentration of the forces of a third power on their common border, similarly peace between a husband and a wife can be established by concentrating judicial force on the border of their life. They forget that the success of the domestic life depends on the complete disappearance of all borders.
The Westernised people of the East, instead of taking pride in their own system and pointing out to the people of the West the defects and shortcomings of their (the Westerners') family system, are so absorbed in imitation that they are unable to distinguish between right and wrong. But it will not be too long before the East gets rid of the yoke of the West completely, rediscovers its own personality and learns self-reliance. Here it is necessary to mention two points.
ISLAM WELCOMES EVERY FACTOR WHICH HELPS CHECKING DIVORCE
From what we have written some people may wrongly conclude that we are in favour of allowing men to divorce their wives at their will and pleasure. Of course, that is not the idea. What we mean is that Islam does not want to use legal force against the husband. Otherwise, Islam welcomes every action which may dissuade him from divorce. Islam has intentionally prescribed such a procedure and has laid down such conditions for the validity of divorce that they automatically delay the dissolution of marriage and, in many cases, persuade the husband to give up the whole idea of separation.
Islam has advised those who pronounce the divorce formula, and the witnesses and others, to do their best to dissuade the husband from the idea of divorce. Furthermore, a divorce is not valid unless it is pronounced in the presence of two qualified 'Adil" (Just) witnesses, who are expected to make their utmost efforts to reconcile the couple.
The present day custom that the divorce formula is often pronounced in the presence of two just persons, who may not even know the couple concerned except their names, is totally un-Islamic.
Anyhow, the necessity of the presence of two qualified witnesses is one of those factors which may dissuade the husband from divorce, provided this condition is observed strictly in its true sense. Islam does not regard the presence of two qualified witnesses as an essential condition for the validity of marriage, which is the beginning of the marital contract, because it does not want to delay a good deed. But it regards the presence of two qualified just witnesses necessary for divorce, which is the end of the contract.
Similarly, according to Islam, divorce is not effective during the woman's menstrual period, though there is no objection to the solemnisation of marriage during that period. Apparently menstruation, being a hindrance in sexual intercourse, should affect marriage and not divorce. But as Islam encourages union and discourages separation, it has allowed marriage during the monthly period and has disallowed divorce during that period. In certain circumstances, it is necessary to wait for three months before a divorce is allowed.
All these hindrances and obstacles are meant to allow enough time for the tension, which had led to the decision of divorce, to subside, and to enable the husband and the wife to resume their normal life.
Furthermore, in the case of revocable divorce, the husband is permitted to resume conjugal relations during the period of probation iddah (waiting period).
Islam has placed another obstacle in the way of the husband, by imposing on him the expenses of marriage as well as those of the period of post-divorce probation for wife and of the care of children. If a man wants to divorce his wife and marry another woman, he has first to pay the maintenance of the first wife, to undertake the responsibility to bear the expenses of the children, and to fix the dower of the new wife. Furthermore, he has to shoulder the responsibility of supporting the second wife and the children which may subsequently be born.
Apart from the responsibility of looking after the children, their woeful plight offers the husband a fearful prospect and prevents him from taking a decision to resort to divorce.
In addition to all this, Islam regards it necessary that in the case of the apprehension of breach and dissolution of family life, a family court consisting of two arbiters, one representing the husband and the other representing the wife, is constituted to arbitrate between them.
The arbiters should do their utmost to settle the dispute between the husband and the wife and, if necessary, they should consult them for this purpose. They can dissolve the marriage only if they find that reconciliation is impossible. As far as practicable, the arbiters should be selected from among the relatives of the couple, provided suitable people are available among them.
The Holy Qur'an says: "If you fear a breach between the two, appoint an arbiter from his relatives and another from hers. If they both desire compromise, Allah will afford harmony between them. Surely Allah is Ever-Knowing, Aware', (Surah an-Nisa, 4 : 35).
The author of the Kashshaf, explaining the word, 'arbiter' says that the person selected to arbitrate should be trustworthy, eloquent and capable of bringing about a reconciliation and doing justice to both the parties. He further says that it is preferable to select the arbiters from among the relatives of the couple because they are expected to know the causes of the dispute better and both the parties can talk to them freely and repose confidence in them.
The jurists differ on the question whether arbitration is obligatory or only desirable. The most eminent among them are of the view that it is the job of the government to appoint the arbiters. Shaheed Thani in his book, 'Masalik' has formally expressed the legal opinion that arbitration is obligatory and it is to be arranged by the government.
Sayyid Muhammad Rashid Riza, the author of the Qur'anic Commentary, 'Al-Manar', after giving the opinion that arbitration is obligatory, refers to the difference of opinion among the jurists on this question and says that, practically, the Muslims do not follow this wise rule and thus are deprived of its unlimited benefits. The scholars unnecessarily waste their energy on arguing whether arbitration is obligatory or only desirable, while nobody takes steps to implement it. If a rule is not to be implemented, then what difference does it make whether it is obligatory or desirable?
Regarding the conditions which the arbiters can impose on the husband to secure a reconciliation, Shaheed Thani says that they can for example bind him to keep his wife in a particular town or a particular house; not to accommodate his mother or his other wife in the same house not even in a separate room; to make prompt cash payment of the dower fixed at the time of marriage; or to make immediate payment of any loan he might have taken from his wife.
In short, any suitable action to dissuade the husband from repudiating the marriage bond is valid and desirable.
This is the answer to the question we raised earlier i.e. whether or not, the judiciary which represents society has the right to intervene and prevent the dissolution of marriage.
The judiciary can intervene because the husband's decision to divorce his wife is not, in all cases, a sign of the final collapse of the conjugal bond. Such a decision may be taken in a fit of rage or may be the result of some misunderstanding. Any action taken by the society to prevent the implementation of such a decision is welcomed by Islam.
A court of arbitration, being the representative of the society, can direct the divorce offices not to finalise the action on a divorce case, till the court intimates them of its failure in bringing about peace and harmony between the husband and the wife.
THE WIFE'S PREVIOUS SERVICE TO THE HOUSEHOLD
The unchivalrous divorce, besides dissolving the sacred family life, creates such other positive problems for the wife that they cannot be ignored. Suppose a woman lives in the house of her husband for years, takes his house to be her own and most sincerely works hard to build it up and give it a shape. She, as is the case with most of the women with the exception of those belonging to the modern urban society, cuts down the expenses on food and clothing, sometimes even to the annoyance of her husband, and hesitates to engage a servant to help her in the household work. She sacrifices her youth, energy and health for the sake of her husband and her household. Now, if the husband of such a woman, after years of a joint life, wants to divorce her to marry another woman, he not only wants to bring to nought all the efforts and aspirations of his wife, but also wants to indulge in sexual pleasure at her expense.
This is not simply a case of the dissolution of mental life, and hence, it cannot be said that it is below the natural position and dignity of woman to thrust herself on a man who does not want her.
Here other questions are also involved the question of becoming homeless for the wife, the question of handing over one's house to a rival and the question of the wastage of all her efforts and services in the past.
Every human being wants a home of his or her own and feels attached to the home built by his or her own hands. If you try to turn a bird out of the nest it has built, it will certainly resist and defend itself.
In our opinion, the problem is fully worth considering. In such cases, divorce not only means the dissolution of marriage, but also brings women to complete ruin.
Anyhow, the question of home is distinct from that of divorce, and the two questions should be considered separately. From the Islamic point of view, normally this problem should not arise. It arises owing to the ignorance of Islamic rules and regulations and the exploitation of women's goodwill and faithfulness, by men.
Most of the people suppose that all the fruits of woman's labour belong to her husband. They even think that the husband can force his wife to work for him and she has to obey all his orders like a slave. This wrong notion is the root-cause of all the trouble. As we have repeatedly pointed out, woman has full freedom as regards her work and activity. Whatever she earns belongs exclusively to her. Islam has given her economic independence. In addition, it has made the husband responsible to bear the expenses of his wife and children. Thus, Islam has provided woman enough opportunities, from the financial point of view, to lead a respectable life independent of man. Divorce and separation should not cause her any anxiety in this respect. All the things which she might have collected to build up her home belong to her and her husband has no right to seize them. Such apprehensions are justified only in the systems, which force woman to work in the house of her husband and regard the fruits of her labour as belonging to him. The misgivings which exist among our people are probably due to their own ignorance of the law.
Another cause of the trouble is the exploitation of the faithfulness of woman by man. Some women make sacrifices, not because they are unaware of the law of Islam, but because they are over confident of the sincerity of their husbands. They want that there should be no question of 'my money and your money'. They do not care to take advantage of the opportunity given to them by. Islam. They are suddenly disillusioned and find that they have wasted their lives in making sacrifices for an unfaithful man and have lost the opportunity given to them by their religion.
If a wife is expected to give up her legal right of keeping a separate account of her money and her earnings, the husband is also expected that, in consideration of her sacrifice and the service rendered by her, he should make presents to her and offer her gifts. The Qur'an says: "When you are greeted with a greeting, greet with one better than it or at least as kind"
(Surah an Nisa, 4:86). It has always been customary among the good people to present the wife with valuable articles, like a house or other property, as a gift.
Anyhow, what we mean is that the problem of becoming homeless is not related to divorce and that it cannot be rectified by changing the concerned law. This problem is related to the question of economic independence of woman and that question has already been solved by Islam. This problem has arisen because of the ignorance of some women, and the simplicity of others, and will automatically be solved if women know the teachings of Islam on this point and do not show too much simplicity while dealing with their husbands.
DIVORCE (V)
We have said earlier that there are two aspects of divorce which cause all the hardships. One of them is that there are cases of divorce, which are due to the unfaithfulness, and unchivalrous attitude of some husbands. The other aspect is that, even when there is no chance of harmony between a husband and a wife, some husbands withhold divorce, not with a view to living with the wife but with a view to harassing her.
We have mentioned before that Islam welcomes every means of preventing unchivalrous divorce and has taken its own measures to eliminate it as far as possible. Anyhow, Islam is opposed to the application of force for the purpose of maintaining conjugal relations.
Islam regards the family as a living unit, and endeavours to keep it alive. But if it dies, Islam's verdict is that it should be buried. Islam does not like it to be mummified and kept active artificially.
We have learnt that the reason why man has the right of divorce is that the conjugal bond is based on a natural relationship which has its own natural rules. Nature has put the key of its consolidation or destruction into the hands of man. The husband and the wife, each has, by nature, a specific position, which cannot be changed, nor can their positions be unified. This specific position gives rise to certain rights and obligations, the right of divorce being one of them. In other words this right is due to the special and specific role which man and woman, each plays in seeking a partner in life.
RIGHT OF DIVORCE IS DUE TO MAN'S SPECIAL ROLE AND NOT TO ANY PROPRIETARY RIGHTS
Now you can easily assess the value of the propaganda which is carried out by anti-Islamic elements. They allege that Islam has given the right of divorce to man, because it does not recognise woman to have free will, or to possess any desires or aspirations. They say that Islam includes woman in the category of non-living objects, and not in that of living people. That is why it has given man proprietorial rights over woman. Naturally such rights include the right of emancipation.
We have shown that the Islamic family law is not based on the masterhood of man and the serfdom of woman. Islam's philosophy is more subtle and far higher than the intellectual level of these writers. Through divine inspiration Islam has grasped the very essence of the basis and structure of the family system. Science is now unravelling some of the mysteries solved by Islam 14 centuries ago.
DIVORCE IS RELEASE IN A SENSE
The anti-Islamic elements say that divorce should definitely have a judicial form and not that of a release or relief. The fact is that divorce has an aspect of release, because marriage has an aspect of appropriation. It is not possible to change the law of mate-seeking, according to which male and female have separate roles, and the natural state of marriage apparently resembles appropriation. As far as sexual relations are concerned, nature has prescribed distinct roles to a male and a female, both in the case of human beings and animals. Divorce could have been deprived of its aspect of release only if it had been possible to change the law of nature.
A critic says that generally the Shiah jurists describe the marriage contract as a binding contract, but it appears that according to Islamic law it is binding only in the case of the wife, for the husband can annul it at his will and pleasure. He adds that it is disgraceful to give the husband the right of divorce during this age of the atom, artificial moons and democracy.
It appears that this gentleman and others, who think on similar lines, do not differentiate between annulment of a marriage and divorce. When it is said that the contract of marriage is a binding contract, it means that neither the husband nor the wife has the right to annul it. If a marriage is annulled (as it happens in certain exceptional cases) it is treated as if it was never contracted and no legal effects flow from it. The woman cannot claim her dower. The man has no responsibility to support her during the period of probation. On the other hand, in the case of divorce, the marriage bond is dissolved, but its legal effects are not totally nullified. For instance, if a man divorces his wife after even one day's conjugal life, he has to pay the full dower and has to maintain her during the period of probation. In case he divorces after contracting the marriage, but before its consummation, he will have to pay half the dower. As in this case woman has no period of probation and the question of maintenance does not, therefore, arise. Thus, it is clear that divorce does not nullify all the legal effects of a marriage contract. It is also clear that divorce is different from the annulment of a marriage and that the right of divorce is not contradictory to the fact that a marriage contract is binding. There are two aspects specified in Islam annulment of marriage and divorce. A marriage may be annulled owing to a serious physical defect being discovered in either husband or wife. In this regard, both of them have equal rights. Only the right of divorce belongs exclusively to man.
The fact that there are separate rules for divorce and the annulment of marriage shows that Islam has not accorded the right of divorce to man because it wanted to give him any preferential treatment.
PENALTY FOR DIVORCE
With a view to preventing divorce, certain legal systems prescribed a penalty. We do not know whether any such law still exists anywhere in the world. Anyhow, the historians say that the Christian Emperors of Rome imposed a fine on those who divorced their wives without any valid reason.
Obviously it is another form of the use of force for the maintenance of family life, and hence cannot be of much avail.
