DELEGATION OF THE RIGHT OF DIVORCE TO WIFE
We have so far dealt with the natural right of divorce which belongs exclusively to the husband. But he can confer the power of divorce on the wife. This delegation of power can either be general or limited to certain specified circumstances. To make it irrevocable it is included in the marriage contract as a binding clause, according to which the wife is empowered to dissolve the marriage in the specified circumstances already agreed upon.
It has been customary since the olden days that the women, who feel, in any way, apprehensive of the conduct of their husbands, insist on the inclusion of such a clause in the marriage contract and exercise the power delegated to them, if necessary.
Thus, according to the Islamic law, though woman does not have the natural right of divorce, she can have the contractual right of the dissolution of marriage.
Hence, it is not correct to say that the right of divorce is unilateral and Islam has given it only to man.
JUDICIAL DIVORCE
Judicial divorce means the dissolution of marriage by a judge and not by the husband. In a large number of countries only a court is competent to effect divorce and to dissolve marriage. According to this system, every divorce is a judicial divorce. We have already made it clear that, in view of the spirit of marriage, the aim of the formation of a family and the position held by woman in the family, a divorce, which runs its normal course, cannot depend upon the decision of a judge.
Now we would like to see whether, from the Islamic point of view, a judge has no power to effect a divorce or there are any circumstances, howsoever exceptional, in which he can do so.
Divorce is the natural right of the husband, provided his relation with his wife run their normal course. Normally, if he wants to live with her, he should look after her, discharge all the rights belonging to her and treat her kindly. If he finds it impossible to live with her smoothly, he should pay up all her dues and part with her. Besides her dues, he is also required to pay her an additional sum as a token of goodwill and gratitude. The Holy Qur'an says: "Provide for them, the rich according to his means, and the strained according to his means, a fair provision', (Surah al-Baqarah, 2 : 236)
But there may be cases when the conjugal life does not run its normal course. There may be a man who neither wants to live happily with his wife nor would he agree to divorce her.
Natural divorce may be compared to a natural child-birth, which automatically takes its normal course. But the divorce by a man, who is not willing to discharge his duty and does not agree to divorce, of his own accord, is comparable to an abnormal delivery which requires a caesarean operation by a surgeon.
ARE CERTAIN CASES OF MARRIAGE INCURABLE LIKE CANCER?
In such cases divorce does not depend on the will and pleasure of the husband. If such a man is not willing to divorce, the woman cannot be allowed to endure the agony without having a remedy. Islam does not play the role of a silent spectator in such cases.
Many people are under the false impression that from the Islamic point of view, such a situation is incurable. They think that it is a sort of cancer which afflicts some unfortunate people, but cannot be cured and so the woman has no alternative but to continue to suffer patiently till she dies.
In our view this mode of thinking is repugnant to the principles of Islam. Islam is a religion which always upholds justice. The establishment of a just society has been the basic aim of all the Prophets. The Holy Qur'an says: Certainly we sent Our Messengers with clear proofs and sent down with them the Book and the Balance, so that humankind may conduct itself with equity. (Surah al-Hadid, 57:25) Islam cannot tolerate such a flagrant injustice, nor can it be imagined that it would formulate a law which may cause a malady comparable to cancer.
It is regrettable that some people, who admit that Islam is a religion of justice, still hold such a view. If one 'black law' can be attributed to Islam and accepted as a cancer, there can be no valid objection to regarding some other 'cruel' laws as tetanus, tuberculosis, paralysis etc.
Such an allegation is against the principle of justice, which is a cardinal principle of Islamic law.
Further, if it is possible to remove the cancer by a simple operation, will it not be wise to take prompt action and relieve the patient of his disease?
Take the case of a woman who joins a man in all earnestness as his partner in life, but subsequently the man ceases to take interest in her. If the man misuses his powers, does not divorce her and keeps her, in the words of the Qur'an, 'hanging', not because he wants her to live with him as his wife, but just to prevent her from seeking another suitable husband, such a woman is really afflicted with a cancer. But this cancer is easily operable, and after one operation the patient is expected to recover fully. This operation can be performed by a qualified judge only.
As stated earlier, it is a big problem of our society that some callous husbands refuse to divorce, and thus perpetrate a grave injustice. They use religion as a pretext to justify their highly objectionable conduct. When they say that woman should bear patiently their high-handedness as an incurable cancer, they certainly bring a bad name to Islam.
Though the subject is rather technical, yet we propose to discuss it briefly, to remove the doubts of the evil-minded persons and to elucidate the teachings of Islam in this respect.
DEADLOCKS
Some deadlocks are not peculiar to the questions of marriage and divorce. They appear in other spheres also, such as those related to the financial problems. Let us first see how Islam has dealt with the deadlocks in these areas. Has it removed them or accepted them as an irremediable phenomenon?
Suppose two people, through inheritance or some other way, come to own an indivisible article such as a diamond, a ring, a vehicle or a painting and they are not willing to use it jointly or by turns. Neither of them is also ready to sell his share to the other partner. They also do not agree on any other formula for its use. The article is being wasted, because obviously neither of them can use it without the consent of the other. What is to be done in such a case? Should the problem be left unsolved and the article be allowed to remain un-utilised? Has Islam found a way out of such an impasse?
The fact is that Islamic law does not regard such questions as insoluble. It does not admit that the right of ownership can lead to the non-utilisation of any property. It allows the courts of law to intervene in such cases and put things right. Even if the parties concerned do not want to submit the matter for adjudication, the court can still order the article in question to be let out or sold. The hire charges or the sale price will, of course, be divided between the owners, but the court can take action with or without their consent.
In such cases the right of ownership is not taken into consideration because of the involvement of another principle, namely, the. prevention of wastage. The right of ownership is to be waived in such cases, because it is to be respected only so far as it does not lead to the total loss and sheer wastage of the property.
Suppose two persons own a diamond, a sword, or something else of that sort. Neither of them is willing to sell his share to the other, but both of them agree to divide it into two pieces so that each of them may take one-half of it. Obviously a diamond, a sword or a car, when divided into pieces, becomes useless and loses its value. Islam does not allow such wastage.
A great jurist, Allamah Hilli, says that the legal authorities should not allow anyone to resort to such an action. The fact that an agreement exists between the owners of the article concerned will not do in such cases.
DILEMMA OF DIVORCE
Now let us see what is to be done about the question of divorce. If a husband is uncompromising and does not discharge all or some of his financial (maintenance), moral (good-fellowship) and sexual (right of co-habitation and intercourse) duties and obligations, enjoined upon him by Islam, and at the same time, is not willing to divorce his wife, what action is to be taken? Does there exist sufficient cause to allow the judicial authority to intervene?
VIEW OF AYATULLAH HILLI
A great jurist of recent times, Ayatullah (Shaykh Husayn) Hilli of Najaf (Iraq) has dealt with this point in his treatise, 'Conjugal Rights'. Here is the summary of his views:
Marriage is a sacred contract and at the same time a sort of partnership between two persons who make certain commitments to each other, the execution of which ensures their happiness. That is not all. In fact, the felicity of the whole society depends upon the success of their relations.
The main rights of the wife consist of maintenance, cohabitation and good fellowship.
If the husband avoids carrying out his commitments and also abstains from divorcing his wife what should a woman do and how should she behave towards her husband? There are two possible alternatives. Either a Muslim judicial authority should intervene and pronounce the divorce ex parte, or the wife should also refuse to carry out her commitments.
The first alternative is supported by the following verses of the Holy Qur'an: Divorce may be pronounced twice: then either a woman must be retained in good fellowship or released in kindness. (Surah al-Baqarah, 2 : 229). In other words, the right of divorce and its revocation can be exercised twice only. Thereafter, there are only two alternatives, either magnanimous retention or release in kindness.
Again in the Surah al-Baqarah, (2 : 232) the Qur'an says:
When you have divorced your wives, and they have reached their prescribed term, either retain them with honour or release them in kindness; Do not retain them by force to harm them. Whoever does that wrongs himself
From these verses, a general rule can be deduced. A husband has either to retain his wife and carry out all his duties and obligations magnanimously, or to release her and sever the conjugal bond. From the Islamic point of view there is no third alternative. The words, "do not retain them by force to harm them" deny the third alternative of neither divorcing the woman nor retaining her justly or magnanimously. These words, in a more general sense, include the cases of both doing harm to the woman intentionally and simply ignoring her rights and interests by not divorcing her.
These verses expressly refer to the question of the revocation of divorce and lay down that the revocation should be on a solid basis, with a view to keeping the woman as a partner in life and not with a view to doing harm to her. But, in their scope, the verses are not limited to this question only. They lay down a general rule applicable to the rights of wife at all times and in all circumstances. As a general rule, the husband has to choose one of the above two alternatives throughout his married life. There exists no third alternative for him.
Some jurists have wrongly limited the scope of these verses. They are of the view that they are applicable only to those husbands who want to revoke their divorce during the period of probation (iddah). In fact, this view is not correct. Apart from the context of these verses, the Holy Imams, as authority, have quoted them in other cases also. For instance, Imam Baqir (P) has said that a husband who swears that he has nothing to do with his wife and in pursuance of such an oath (ila') abstains from her society, has only two alternatives at the expiry of a period of four months. Either he should break his oath and make atonement (kaffarah) for his improper behaviour, or he must immediately divorce his wife, for Allah says: Either retain her (the woman) in good fellowship or release her in kindness. (Surah al-Baqarah 2 : 229)
On another occasion, when a man had appointed an agent to contract a marriage and fix the dower on his behalf, and later the principle denied the delegation of such powers, Imam Sadiq (P) said that the woman could choose another husband for herself. When the man knew in his heart that he had appointed an agent and delegated him the power to contract a marriage, but later denied it, then he must pronounce divorce, so that his conscience might be cleared, for Allah has said: "Either retain a woman in good fellowship or release her in kindness". These instances show that the Imams believed the verse to constitute a general principle.
In case a husband neither carries out his conjugal obligations nor does he divorce his wife the religious court should summon him and call upon him to pronounce divorce. If he declines, the court itself can declare the marriage to be dissolved. According to a tradition, Abu Basir has reported that Imam Sadiq (P) said: "If a husband does not maintain his wife, it is the duty of the court to dissolve their marriage, by enforcing a divorce." This in a nutshell is the view of a jurist of the first rank of the present age. He who wants to know its details should consult the book Huquq-uz-Zawjiyyah" which consists of the lessons of the grand author.
As you must have observed, the verse, 'Either retain in good fellowship or release in kindness' constitutes a principle, within the framework of which Islam has prescribed the rights of the wife. According to this principle and the strict order contained in the sentence: 'Retain them not for injury, 'Islam does not allow any wicked man to misuse his powers and to keep any woman in straits to prevent her from marrying any other person.
Besides the above arguments quoted from the treatise, 'Conjugal Rights', there exist other arguments also, which support the view that the verse, 'Either retain in good fellowship or release in kindness' is from the Islamic point of view, a general rule which covers all the rights of the wife. The more one looks at the various aspects of this rule, the more he realises the soundness of the teachings of Islam.
In al-Kafi, Vol. V, Imam Sadiq (P), is reported to have said that when a man wants to marry a woman, he should say:
"I acknowledge the pledge taken by Allah 'Either retain in good fellowship or release in kindness'."
The Holy Qur'an says: How can you take it (the dower) back, when you have intimated with each other, and they (wives) have taken from you a strong pledge (of making a full payment of dower to them). (Surah an-Nisa, 4:21) The commentators of the Holy Qur'an, both the Shiah and the Sunni, admit that here a 'strong pledge' denotes the verse, 'Either retain in good fellowship or release in kindness.' This is the pledge to which Imam Sadiq (P) referred, when he called on the people to acknowledge the pledge of Allah at the time of marriage.
Both the Shiah and the Sunni sources report that on the occasion of the Farewell Pilgrimage (his last pilgrimage) the Holy Prophet said: "Fear Allah in respect of women, for you hold them in trust for Allah, and you have been allowed to enjoy them by His word."
The well- known historian - theologian, Ibn al-Athir, writes that the 'word of Allah' in this saying of the Prophet refers to the Qur'anic verse - "Either retain them in good fellowship or release them in kindness."
VIEW OF SHAYKH TUSI
Shaykh Tusi, expressing his views regarding the cases of impotence, says that after it is proved that the husband is sexually impotent, the wife has the option of dissolving the marriage. He says that all the jurists are unanimous on this point and in support of their view they cite the verse: Retain in good fellowship or release in kindness. An impotent man, being unable to perform his conjugal duties, cannot keep his wife in good fellowship and should, therefore, release her.
The views quoted above, on the whole, prove that Islam does not allow any man to misuse his right of divorce and keep his wife as a prisoner. Anyhow, it should be noted that every judge is not competent to intervene in such matters. Islam has laid down very hard and fast qualifications for a judge (Qazi).
It is worth noting that the cases of judicial divorce should be exceptionally rare, because Islam is anxious to preserve the family life as far as practicable. Islam cannot allow the divorce to take the form that it has taken in Europe and America, the instances of which we daily read in the newspapers. For example, a woman demanded a divorce because her husband did not like the film she liked. Another woman wanted a divorce on the plea that her husband did not kiss her beloved dog. Many other similarly ridiculous and flimsy pleas are advanced daily. They only reflect the decline of humanity.
In a preceding chapter we mentioned, in the following order, five theories regarding divorce:
(1) There should be no moral or social restrictions on divorce;
(2) Marriage constitutes an eternal bond. Divorce should be totally banned; (View of the Catholic Church)
(3) Marriage is dissolvable by man and not by woman;
(4) Marriage is dissolvable both by man and woman but with certain conditions. The procedure of its dissolution is the same for both of them; (View of the supporters of equality of rights).
(5) The way to divorce is open for both man and woman, but their way out is separate.
As we said in the above mentioned chapter, Islam supports the last theory. From what we have said about the possibility of the delegation of the power of divorce to the wife, as an integral condition of the marriage contract and the possibility of judicial divorce, it is evident that though Islam does not recognise that woman has any natural right of divorce, yet it has not completely slammed the door of exit to her.
The question of judicial divorce can be discussed further, especially with reference to the views of the jurists of various schools of law, but we think that for our present purpose we need not go into further details.
Fixed-Time Marriage
FIXED-TIME MARRIAGE I
One of the glorious laws of Islam, from the point of view of the Ja'fari (Shi'ite) law, is that there are two kinds of marriage, a permanent and a fixed-time marriage.
Some of the effects, which flow from these two kinds of marriage, are the same and some others are different. There are two distinctive features between them. One is that in a fixed -time marriage, a man and a woman enter into a contract to marry each other for a fixed period, on the expiry of which, if they wish, they can extend it, otherwise they separate.
The other distinguishing feature is that there is a greater freedom of choice in fixed-time marriage. The contracting parties may stipulate any conditions they like. For example, in a permanent marriage the husband is bound to maintain his wife and meet her daily expenses. Besides, he has to provide for her clothing, housing and other necessities of life like medicines and medical treatment etc. But in a fixed-time marriage everything depends on the terms of the contract. It is possible that the husband may not be able or may not be willing to bear the expenses of his wife, or the wife may not like to utilise her husband's money.
In the permanent marriage the wife has to accept her husband as the head of the family and obey him within the limits of family interest, but in a fixed-time marriage this also depends on the terms of the contract. In the case of a permanent marriage wife and husband inherit from each other, but this is not so in a fixed-time marriage.
However, in the fixed-time marriage after the formula has been pronounced the couple is recognised as lawful wife and husband and they can then have intimacy but before that they are strangers and it is prohibited for them to have any kind of sexual relation.
The main difference between a fixed-time and a permanent marriage is that a fixed-time marriage places less restrictions upon the spouses. Its terms depend upon their will and choice and the agreement concluded between them. Its very nature gives a sort of freedom to both the parties, for it puts the fixation of its duration into their own hands.
In a permanent marriage neither the husband nor the wife can use any contraceptive methods without the consent of the other, but in the fixed-time marriage such a consent is not necessary. This is, in fact, another kind of freedom given to both the husband and the wife.
The child born from a fixed-time wedlock is in no way legally different from the child born as a result of a permanent marriage.
Dower (mahr): The marriage portion given by the husband to his wife. The dower must be specified and fixed at the time of marriage, but its actual payment may be deferred with the mutual consent of the parties concerned.
'Dower' is necessary, both in the case of a permanent and a fixed-time marriage, with the only difference that the non-specification of dower at the time of marriage makes the fixed-time marriage void (batil), but does not affect the validity of permanent marriage. If no dower is specified at the time of permanent marriage, then the wife is entitled to the dower, customarily fixed for the females.
In a permanent marriage, the husband is debarred from ever marrying the mother or daughter of the wife and the wife is permanently debarred from marrying the father or son of the husband. Similar is the case with regard to fixed time marriage As it is forbidden to propose to a permanently married woman, similarly, it is not allowed to give an offer of marriage to a woman who is married under fixed-time marriage rules. As adultery with the permanent wife of someone else permanently debars a person from marrying her, the same restriction is imposed in the case of adultery with the fixed-time wife of someone else.
After getting a divorce, just as the permanent wife has to pass through a period of probation (iddah), during which she cannot marry again, the fixed-time wife also, after the expiry of the marriage term or the termination of marriage earlier with mutual agreement, has to pass a period of probation. The only difference is that in the case of a permanent wife the iddah is three monthly periods, whereas in the case of a fixed-time wife it is two periods or 45 days. To have two sisters as wives at the same time is prohibited both in the case of a permanent as well a fixed-time marriage. This is what is meant by a fixed-time marriage, according to the Shi'ite law.
Obviously we support this law with the prescribed conditions and specifications. If some people misused it in the past or are still misusing it, that has nothing to do with the legal system as such. The abolition of this law, as suggested by some modernists, can serve no useful purpose, as, with its abolition, malpractices will not stop, but will only take a different shape. Moreover, the abolition of this law will give rise to many other evils. What is required is that, instead of finding fault with the law, people should be reformed and correctly educated.
Now let us see why it is necessary to have the institution of a fixed-time marriage side by side with that of a permanent marriage. If a fixed-time marriage is necessary, is it compatible with the present day conditions and modern-ideas of human values? We propose to discuss this question under two headings:
(a) Present day life and a fixed-time marriage
(b) Faults and evils of a fixed-time marriage
