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Chapter 3; Section 5: Dirvorce

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Chapter 3; Section 5

The Halal And The Haram In Marriage And Family Life

 

Divorce

Marriage, as stated previously, is a strong bond by means of which Allah joins a man and a woman. While they are "single" as individual human beings, after marriage they are termed a "couple." Marriage makes of them a pair, and thus the sorrow and joy of the one are equally the sorrow and joy of the other. The Qur'an describes this bond in beautiful and vivid language: ...They (wives) are your garments and you are their garments.... (2:187) meaning that each is the protection, the covering, the support, and the adornment of the other. (AI-Tirmidhi transmitted that Abu Hurairah reported Allah's Messenger (peace be on him) as saying, "The Believers who show the most perfect faith are those who have the best disposition, and the best of you are those who are best to their wives." In a hadith narrated by 'Aishah, the last words are "and are kindest to their families," as transmitted by al-Tirmidhi. (Trans.))

Each of the two spouses has rights in regard to the other which must be recognized and which are not to be diminished. These mutual rights are equivalent except in relation to what is particular to men by virtue of their natural position, as Allah says: ...And they (women) have (rights) similar to those (of men) over them in an honorable fashion, but men have a degree over them. (2:228)
This "degree" (darajah) is related to men's role as the maintainers and leaders of the family.

A man asked the Prophet (peace be on him), "O Messenger of Allah, what rights may a wife demand of her husband?" He replied, That you should feed her (with the same standard) as you feed yourself, clothe her as you clothe yourself, that you should never hit her face or put her down, or cut yourself off from her unless it occurs in the house. (Reported by Abu Daoud and by Ibn Hibban in his Sahih.)
Accordingly, it is not permissible for the Muslim husband to neglect to provide his wife with food and clothing. A hadith states, "Wasting the sustenance of his dependents is sufficient sin for a man."
(Reported by Abu Daoud, al-Nisai, and al-Hakim.)
Striking her on the face is also prohibited, since it is an insult to her human dignity as well as being a danger to the most beautiful part of her body. And if the Muslim is pushed to discipline his wife in the event of open rebellion, when all other methods have failed, he is not allowed to beat her in a manner which causes pain or injury, and he

is most certainly not permitted to touch her face or other easily injured parts of her body. Similarly, the Muslim is not permitted to revile, curse, or say insulting words to his wife.

Concerning the rights of the husband, the Prophet (peace be on him) said, It is not lawful for a woman who believes in Allah to allow anyone in her husband's house while he dislikes it. She should not go out of the house if he dislikes it and should not obey anyone who contradicts his orders. She should not refuse to share his bed. (Meaning that she should not deny him sexual access when he desires it. (Trans )) She should not beat him (in case she is stronger than he). If he is more in the wrong than she, she should plead with him until he is reconciled. If he accepts her pleading, well and good, and her plea will be accepted by Allah; while if he is not reconciled with her, her plea will have reached Allah in any case. (Reported by al-Hakim.)

 

Mutual Tolerance Between Husband and Wife

A husband must be patient with his wife if he sees something in her which he disapproves and dislikes. He should recognize that he 1S dealing with a human being with natural imperfections, and he should balance her good qualities with her failings. The Prophet (peace be on him) said, Let a believing man not dislike a believing woman. If something in her is displeasing to him, another trait may be pleasing.
And Allah Ta'ala says, ...And consort with them in kindness, for if you dislike them, it may be that you dislike something in which Allah has placed much good. (4:19)

While on the one hand Islam requires the men to be tolerant and patient with what he dislikes in his wife, on the other it command the wife to try to please her husband as far as her ability and charm l allow, and warns her not to let a night pass during which her husband remains angry with her. A hadith states: There are three (persons) whose salat does not rise even a single span above their heads: a man leading a congregational salat while the people hate him, a woman passing the night while her husband is angry with her, and two quarreling brothers. (Reported by Ibn Majah and by Ibn Hibban in his Sahih.)

 

Rebelliousness and Strife

Because of his natural ability and his responsibility for providing for his family, the man is the head of the house and of the family. He is entitled to the obedience and cooperation of his wife, and accordingly it is not permissible for her to rebel against his authority, causing disruption. Without a captain the ship of the household will flounder and sink. If the husband senses that feelings of disobedience and rebelliousness are rising against him in his wife, he should try his best to rectify her attitude by kind words, gentle persuasion, and reasoning with her. If this is not helpful, he should sleep apart from her, trying to awaken her agreeable feminine nature so that serenity may be restored and she may respond to him in a harmonious fashion. If this approach fails, it is permissible for him to beat her lightly with his hands, avoiding her face and other sensitive areas. In no case should he resort to using a stick or any other instrument which might cause pain and injury. Rather this "beating" should be of the kind which the Prophet (peace be on him) once, when angry with his servant, mentioned to him, saying, If it were not for the fear of retaliation on the Day of Resurrection, I would have beaten you with this miswak (tooth-cleaning stick). (Reported by Ibn Sa'd in his Tabaqat.)

The Prophet (peace be on him) admonished men concerning beating their wives, saying, "None of you must beat his wife as a slave is beaten, and then have intercourse with her at the end of the day." (Reported by Ahmad; al-Bukhari has something similar to it.)

It was reported to the Prophet (peace be on him) that some of his Companions beat their wives, whereupon he said, "Certainly those are not the best among you." (Reported by Ahmad, Abu Daoud and al-Nisai. Ibn Hibban and al-Hakim classify it as sound, as narrated by Iyas ibn 'Abdullah ibn Abu Dhiab.)

Says Imam al-Hafiz ibn Hajar, The saying of the Prophet (peace be on him), 'The best among you do not beat,' could imply that beating wives is in general permissible. To be specific, one may beat only to safeguard Islamic behavior and if he (the husband) sees deviation only in what she must do or obey in relation to him. It is preferable to warn (her), or something of the sort, and as long as it is possible to achieve things through warning, any use of force is disallowed because force generates hatred, which is inimical to the harmony expected in marriage. Force is applied only when sin against Allah Ta'ala (masiyah) is feared. Al-Nisai has reported 'Aishah as saying, 'The Prophet (peace be on him) never beat any of his wives or servants; in fact, he did not strike anything with his hand except in the cause of Allah or when the prohibitions of Allah were violated, and he retaliated on behalf of Allah.'(Fath al-Bari, vol. 9, p. 249.)

If all of these approaches fail, and the rift between the husband and wife deepens, the matter then devolves on the Islamic society for solution. Two individuals of good will and sound judgement, one from the wife's and one from the husband's side, should meet with the couple in order to try to resolve their differences. Perhaps the sincerity of their efforts may bear fruit and Allah may bring about reconciliation between the spouses.

These various approaches are stated by Allah Ta'ala in the following ayah. ...And as for those women on whose part you fear stubbornness, (first) admonish them; then refuse to share their beds; and (finally) beat them (lightly). Then if they return to obedience, do not seek for a waagainst them; indeed, Allah isMost High, Great. And if you fear breach between the two of them, appoint an arbiter from his family and an arbiter from her family. If they desire to set things aright, Allah will bring about reconciliation between them; indeed, Allah is Knowing, Aware. (4:34-35)

 

When Divorce Becomes Permissible

If all these efforts fail and every course tried proves to be of no avail, the husband may resort to the final solution permitted by the Shari'ah of Islam. In response to the bitter realities of life, when difficulties cannot be resolved except through the separation of the two parties in an honorable fashion, Islam has made the provision of divorce. Islam has permitted divorce reluctantly, neither liking nor commending it. Said the Prophet (peace be on him), "Among lawful things' divorce is most hated by Allah."(Reported by Abu Daoud.)

That a thing is lawful yet detested by Allah means that it is permissible under unavoidable circumstances, when living together becomes a torture, mutual hatred is deep-seated, and it becomes difficult for the two parties to observe the limits of Allah and to fulfill their marital responsibilities. In such a situation separation is better, and Allah Ta'ala says, But if they separate, Allah will provide for each of them out of His abundance.... (4:130)

 

Divorce in the Pre-Islamic Period

Islam is not alone among religions in permitting divorce. Prior to its advent, apart from a very few societies, divorce was allowed everywhere in the world. It was a common occurrence that when a man became angry with his wife, he would turn her out of the house, with or without a just cause, and the wife had no legal recourse against him nor any claim on his property, nor even a right to support money or compensation.

Unconditional and unrestrained divorce was allowed among the ancient Greeks when their civilization was ascendant. Under Roman law a judge was empowered to annul a marriage even if the two parties had included a provision against divorce in their marriage contract, since the possibility of divorce was regarded as a part of the marriage contract. During the earlier period of Roman civilization the religious marriage made no provision for divorce, but at the same time the husband was given absolute power over his wife; for example, under certain circumstances it was lawful for him to kill her. As time passed, the religious law was brought into conformity with the civil law, which permitted divorce.

 

Divorce in Judaism

Judaism improved the status of the wife but it also broadened the scope of divorce. The religious law requires that the husband divorce the wife if moral delinquency is proved against her, even though he may prefer to forgive her; likewise, he is required to divorce her if she does not bear him children throughout a period of ten years of married life.

 

Divorce in Christianity

Christianity stands alone among the religions we have mentioned, in distinction even to Judaism, in prohibiting both divorce and marriage to divorced men and women. Jesus (peace be on him) is reported to have said, "It was also said, 'Whoever divorces his wife must give her a certificate of divorcement. But I tell you, whoever divorces his wife, except on the grounds of adultery, causes her to commit adultery; and whoever marries a woman who has been divorced commits adultery. (AI-Islam Din 'Am Khalid by Farid Wajdi, p. 172.) " (Matt. 5:31-32) "And he said to them, 'Whoever divorces his wife and marries another, commits adultery against her; and if a woman divorces her husband and marries another, she commits adultery.' " (Mark 10:11-12)

The reason for this is given in the Gospels in the words, "What therefore God has joined together, let no man put asunder.'' (Matt. 19:6, Mark 10:9.) This statement is correct in the sense that, since the husband and wife are married by God's permission and legislation, one may say that God has joined them together, although it is the man who enters into the marriage contract. In similar fashion, since God has permitted and legislated divorce in relation to certain reasons and circumstances, one may say that God has separated them, even though the man implements the divorce. It thus becomes clear that no man puts asunder what God has joined together, for joining together and putting asunder is in the hands of Almighty God, and is it not God Himself Who puts them asunder due to the reason of sexual immorality?

 

Differences Among Christian Denominations Regarding Divorce

The New Testament Gospels do make an exception with regard to the prohibition of divorce in the case of sexual immorality. Some Catholics, however, try to explain away even this exception by saying, "The meaning here is not that adultery is an exception in the case of which divorce is permitted, because in Christian law there is no divorce. The phrase, 'Except for unchastity,' means that the marriage itself is annulled, since its legality and correctness have been violated; thus, while it is seemingly a marriage, in actuality it is adultery. Consequently, in such a case it is permissible for the husband, or rather incumbent upon him, to leave the woman." (In a commentary on the Gospel According to Matthew, Institute of Coptic Catholic Research.)

The Protestant denominations permit divorce on the grounds of adultery, betrayal of the husband, and some other specified reasons, in addition to those mentioned in the text of the Gospels. However, some of these denominations prohibit the remarriage of a divorced man or woman.

The councils of the Orthodox Church in Egypt permit its followers the right of divorce on the grounds of adultery, as provided by the Gospels, and for some other reasons such as sterility extending over a period of three years, chronic illness, and prolonged dissension which appears to be irresolvable.

 

Consequences of the Christian Stand on Divorce

As a result of this uncompromising stand of Christianity with regard to divorce, people in Western countries were obliged to resort to civil legislation in order to legalize it. Unfortunately, many of them, the Americans, for example, went to an extreme of permissiveness in the matter of divorce so that it is granted for quite trivial reasons. Some Western philosophers warn that this ease in divorce will dilute the sanctity of the marital bond and erode the very foundations of family life. A well-known judge declared that the time is not too far off when, in Western countries, marriage will be replaced by a loose and tenuous relationship between men and women, similar to a commercial transaction, which can be broken for the most trivial reasons. Since there will be no bond of religion or love between such a pair, they will be united only by their lusts and the desire to experience a variety of pleasures, a type of relationship which is against the teachings of every religion:

This phenomenon of regulating personal affairs through civil law is against the teachings of every religion and is not to be found anywhere in the world except among the peoples of the Christian West; even Hindus, Buddhists, and Zoroastrians observe religious injunctions in the ordering of their personal affairs. Although we may find among them those who have made innovations in the teachings of their religions in matters of public concern, such innovations are not undertaken in personal affairs, that is to say, in marriage, divorce, and what pertains to family life. (As quoted in Huquq al-insan fil-lslam (Human Rights in Islam), by 'Abd al-Wahid Wafi, p. 88.)

 

The Christian Stand on Divorce: A Temporary Injunction, Not a Permanent Law

A serious student of the Gospels cannot escape the conclusion that what Jesus (peace be on him) taught was intended to correct excesses introduced into the divine law by the Jews. His teachings, including his statements concerning divorce, were never intended to be taken as permanent law for the whole of mankind.

In the Gospel according to Matthew we find the following dialogue between Jesus and the Pharisees: And the Pharisees came to him and put him to the test by asking, 'Is it lato dismiss one's wife for any cause?' He replied, 'Have you never read that "He Who made them fthe beginning made them male and female, and said, 'For this reason a man shall leave his father and mother and shall be joined inseparably to his wife, and the two shall become one flesh? ' " (Gen. 1:27, 2:24) So they are no longer two but one flesh. What therefore God has joined together, let not man put asunder.' They said to him, 'Why then did Moses command (us) to give a certificate of divorce, and thus to dismiss a wife?' (Deut. 24:1-4). He said to them, 'Because of the hardness of your hearts Moses permitted you to dismiss your wives; but from the beginning it has not been so (ordained). I say to you: whoever dismisses his wife, except for unchastity, and marries another, commits adultery, and he who marries a divorced woman commits adultery.' The disciples said to him, 'If the case of a man with his wife is like that, it is neither profitable nor advisable to merry.' (Matt. 19:3-10)

From this dialogue it is clear that by restricting the permissibility of divorce to the case of unchastity alone, Jesus intended to correct the excesses of the Jews in the indiscriminate application of divorce, which was permitted under Mosaic Law. This was obviously a temporary remedy, abrogated by the permanent and universal law of Islam brought by Prophet Muhammad (peace be on him).

To suppose that Jesus (peace be on him) intended to make this an eternal law for all mankind does not appeal to reason. We see that his disciples, the most sincere of his followers, were aghast at such a harsh decree, saying, "If the case of a man with his wife is like that, it is neither profitable nor advisable to marry," that is, the moment a man marries a woman he puts a yoke around his neck which it is impossible to remove, regardless of how miserable their life together may become because of mutual hatred and incompatibility of temperaments. As a wise man has aptly said, "The greatest torment in life is a companion who neither agrees with you nor leaves you alone."

 

The Islamic Limits for the Regulation of Divorce

The Islamic Shari'ah has placed a number of obstacles in the way of divorce in order to confine it within the narrowest possible compass. Divorce without lawful necessity and without first exhausting all the other means mentioned earlier of resolving the conflict is unlawful and is prohibited in Islam. Some jurists maintain, it is injurious to both husband and wife, unnecessarily damaging the interests of the two, which, like the wasting of property, is haram. "Do not harm yourself or others,"(Al-Mughni by Ibn Qadamah, vol. 7, p. 77. This hadith is transmitted by Ibn Majah and al-Darqutni.) the Prophet (peace be on him) has instructed us.

People who divorce their spouses and marry others in order to enjoy a variety of sexual partners are liked neither by Allah nor by His Messenger (peace be on him). The Prophet (peace be on him) called them "the tasters," saying, "I do not like the tasters, men and women," (Reported by al-Tabarani and al-Darqutni ) and, "Allah does not like the tasters, men and women." (AI-Tabarani in al-Kabir, on the authority of good transmitters.)

Said 'Abdullah bin 'Abbas, "Divorce is (only) in the case of necessity."

 

The Prohibition of Divorcing During Menstruation

When divorce becomes necessary, it is not permissible for the Muslim to implement it any time he pleases; he must wait for a suitable time. According to the Shari'ah, this suitable time is when the woman is clean following her menstrual period or the period of puerperal discharge following childbirth and before her husband has resumed sexual relations with her, or when she is pregnant and her husband is aware of her pregnancy.

The reason for prohibiting divorce during menstruation or the period of puerperal discharge is that, since during such periods sexual intercourse is haram, the idea of divorce may come to a man's mind because of sexual frustration and nervous tension. He is therefore advised to wait until his wife is clean and to divorce her then, if he is intent on divorce, before the resumption of marital relations.

Just as divorce during menstruation is haram, it is likewise haram between menstruation periods (i.e., "the period of purity") if the husband has had intercourse with his wife following the termination of her previous period. Because it is possible that she may have become pregnant from this union, the husband may change his mind concerning divorce when he knows that his wife is carrying a child, desiring to stay married to her for the sake of the embryo in her womb. However, when the wife is in the period of purity but he has not had intercourse with her following the termination of her menses, or when she is pregnant and he is aware of it, he will be able to ascertain that his intention to divorce her is the result of deep-seated antipathy, and accordingly is permitted to carry through with the divorce. In the Sahih of al-Bukhari, it is transmitted that 'Abdullah bin 'Umar divorced his wife during her menstrual period. When 'Umar mentioned the matter to the Messenger of Allah (peace be on him) he became angry, saying, He must take her back. If he still wishes to divorce her he may do so when she is clean of the menstrual discharge before having intercourse with her, for that is the period of waiting which Allah has prescribed for divorce, referring to the ayah, 'O Prophet, when you (men) divorce women, divorce them during the prescribed periods.' (65:1)

Another version of this hadith reads, Command him to take her back and then divorce her when she is clean from the menstrual discharge or (otherwise) is pregnant.

A question now remains: If a person does divorce his wife during these prohibited periods, does the divorce become effective or not? The prevailing opinion is that it does become effective, although the husband will be considered sinful. However, some jurists hold that, as Allah did not legislate it, it does not become effective, and whatever is not legal cannot be correct nor enforced. Abu Daoud, on sound authority, has transmitted that when 'Abdullah bin 'Umar was asked, "What would you say if a man were to divorce his wife during menstruation?" he related his own story of divorcing his wife during her period and the Prophet's commanding him to take her back, disregarding his pronouncement of divorce.

 

Taking an Oath of Divorce

It is not permissible for the Muslim to take an oath of divorce, vowing that if a particular event does not occur his wife will be divorced, or to threaten her by saying that if she does this or that particular thing she will be divorced. In Islam an oath may be expressed only in one specific manner, that is, in the name of Allah alone; apart from this, no other form of oath-taking is permitted. The Prophet (peace be on him) said, "Anyone who swears by (anything) other than Allah has committed shirk,'' (Reported by Abu Daoud, al-Tirmidhi, and al-Hakim.)
and, "Whoever wants to take an oath should take it in the name of Allah or keep silent." (Reported by Muslim.)

 

Where the Divorcee Resides During the Waiting Period

The Islamic Shari'ah requires that the divorced woman remain in her home, that is to say, her husband's house, for the duration of her 'iddah (waiting period). It is no/permissible for her to move from the house, as it is likewise not permissible for her husband to evict her without a just cause. This requirement leaves the way open, during the 'iddah following a first or second pronouncement of divorce (In the Islamic Shari'ah the pronouncement of divorce by the husband constitutes a complete act of divorce in itself, to be followed by the required 'iddah or waiting period. In order to simplify the discussion, the word divorce is here used to denote the divorce pronouncement, i.e., the act of divorce itself (Trans.)), for the husband to revert to his wife without the requirement of remarriage. Her presence in the same house with him makes it quite probable that the mutual sympathy and love between them may be rekindled, while if she is pregnant the passing of mwill make her pregnancy obvious, which may be a further inducement to him to change his mind. In any case, ample time is at their disposal to rthe whole situation. With the healing effect of time, feelings of antipathy may give place to affection and reconciliation, and the revitalization of their love may occur. ...And fear Allah, your Lord. Do not turn them out of their houses, nor shall they leave (of their own accord) unless they commit some clear immorality; and these are the limits set by Allah. And whoever transgresses Allah's limits indeed wrongs his own soul. Thou knowest not; it may be that Allah will afterwards bring some new thing to pass. (65:1)

If then they must separate, it should be done with dignity and kindness, without mutual abuse, injury, recrimination, or infringement of rights. Says Allah Ta'ala: ...Either retain them in kindness or part with them in kindness....(65:2) ...Then (either) retain her in honor or release her with kindness....(2:229) For divorced women a provision (shall be made) in kindness, a duty for those who are conscious of Allah. (2:241)

 

Repeated Divorce

The Muslim is allowed three chances, that is to say, three pronouncements or acts of divorce on three different occasions provided that each divorce is pronounced during the time when the wife is in the period of purity and he has had no intercourse with her

A husband may divorce his wife once and let the 'iddah pass During the period of 'iddah the two have the option of being reconciled without the necessity of remarriage. If, however, this waiting period expires without reconciliation, they are now fully divorced. Each of them is free to marry someone else or to remarry each other; should they want to remarry each other, a new marriage contract is required.

If after the first divorce the husband is reconciled with his wife but later the hostility and conflict begin all over again, all efforts at reconciliation and arbitration resulting in failure, he may divorce her a second time in the same manner as described above. In this case, too, he can return to her during the 'iddah without remarriage, or after the 'iddah has expired through a new marriage contract.

But it may happen that although he is reconciled with his wife again after the second divorce' he may later divorce her for the third time. This will then be a clear proof that the hostility between the two of them runs very deep and that they are incapable of living together. If this third divorce takes place, it is not permissible for the husband to return to his wife during her 'id d ah, nor may he remarry her after the 'iddah unless she has been married to another man, to live with him as a permanent and true wife, and he then subsequently divorces her. It is, however, totally prohibited for the other man to marry and divorce her simply in order to make her halal for her first husband.

Those Muslims who utter three divorce pronouncements at one time or in one statement are rebels against Allah's law and are deviating from the straight path of Islam. Once the Prophet (peace be on him) was informed about a man who had pronounced three divorces at one time. He got up in anger, saying, Is sport being made of the Book of Allah while I am (yet) among you? As a result, a man stood up and said, O Messenger of Allah, shall I not kill him? (Reported by al-Nisai.)

 

Reconciling Honorably or Separating with Kindness

When the husband has divorced his wife and the period of 'iddah i6 passing, he has two alternatives: either to reconcile with her honorably—that is, to return to her with the intention of living in peace and harmony, and not in order to torment or harm her—or to free her and part with her in kindness by allowing the iddah to expire without arguments and harsh words, and without setting aside any of their mutual rights.

It is not lawful for him to return to her just before the 'iddah is due to expire in order to torment her by prolonging the waiting period, thus depriving her of the opportunity to marry someone else. This was what was done in the period of jahiliyyah. Allah Ta'ala then prohibited this injury to women in a very decisive manner, using a style of expression which makes the heart quake: And when you have divorced women and they have fulfilled the term (of their 'iddah), either retain them honorably or release them honorably; but do not retain them in order to injure them, for this is transgression, and whoever does this has wronged his own soul. And do not take the revelations of Allah in mockery, but remember Allah's favor upon you and what He has sent down to you of the Book and the Wisdom, to instruct you by means of it. And be conscious of Allah, and know that Allah is aware of everything. (2:231)

A little reflection upon this noble ayah of seven phrases, containing warning after warning, reminder after reminder, ought to be sufficient for anyone who has any feeling in his heart or any hearing when it is recited.

 

The Divorced Woman's Freedom to Remarry

After the expiration of the divorced woman's 'iddah, neither her ex-husband, guardian, nor anyone else can prevent her from marrying anyone she chooses. As long as she and the man who proposes to her follow the procedure required by the Shari'ah, no one has the right to interfere. What some men of today do in attempting to prevent their ex-wives from remarrying, intimidating them and their families, is in fact something pertaining to jahiliyyah; likewise, what some families or guardians of divorced women do to prevent them from returning to their husbands when they want to be reconciled, as indeed "Peace is better," (4:128) is also of jahiliyyah. Allah Ta'ala says: And when you divorce women and they complete their term ('iddah), do not prevent them from marrying their (former) husbands if they agree among themselves in an honorable manner. This is to instruct those among you who believe in Allah and the Last Day. That is more virtuous and pure for you; and Allah knows and you do not know. (2:232)

 

The Woman's Right to Demand Divorce

The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Ta'ala says: ...And if you (the judges) fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself (from the marriage tie by returning all or part of the mahr)....(2:229)

The wife of Thabit bin Qais came to the Prophet (peace be on him) and said, "O Messenger of Allah, I do not approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger to him.''(Her meaning was that although Thabit was a good man, she was unable to get along with him and thus might not be able to show him the respect due to a husband. (Trans.)) The Prophet (peace be on him) asked her about what she had received from him. She replied, "A garden." He asked, "Will you give him back his garden?" "Yes," she said. The Prophet (peace be on him) then told Thabit, "Accept the garden and make one declaration of divorce." (Reported by al-Bukhari and al-Nisai.)

It is not permissible for woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet (peace be on him), If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her. (Reported by Abu Daoud.)

 

The Prohibition of ill-treatment

It is haram for the husband to torment and mistreat his wife in order to compel her to seek a divorce so that she will return to him all or part of the property he has given her. Only if the wife is guilty of clear immorality may her husband demand the return of part of the mahr. In this regard Allah Ta'ala says: ...Nor should you treat them with harshness inorder that you may take away part of what you have given them, (for you may not take it back) unless they are guilty of open lewdness. (4:19)

It is also haram for a husband to take back anything from his because he hates her and wants to divorce her so he can marry another woman. As Almighty Allah says, But if you decide to take one wife in the place of another, even if you have given one of them a heap of gold, do not take (back) anything of it; would you take it back by slander and a manifest wrong? And could you take it back, when each of you has been privately with the other, and they (the wives) have taken a solemn covenant from you? (4:20-21)

 

The Prohibition of the Oath of Desertion

One of the aspects of Islam's concern for the rights of women is that it prohibits a man to be so angry with his wife as to discontinue sexual relations with her for a period which she cannot bear. If this abandonment of sexual relations is accompanied by an oath on his part, he is given a limit of four months in which to calm down and revert to her. If he comes to his senses and resumes sexual relations before the expiration of the four months, it is possible that Allah may forgive him for his excess and open the door of repentance to him; however, he must still do the penance prescribed for a broken oath. If, on the other hand, this period expires and he has not returned to her, his wife is divorced from him as a just punishment for his neglect of her rights.

Some jurists hold that the divorce is automatic at the expiration of four months and that no judgement from a court is needed. Others, however, require that at the end of the period the matter should be referred to the judicial authority, who will then give them the option of reconciliation or divorce.

Such an oath of abstention from the wife is technically known in the Shari'ah as eela. Concerning it Allah Ta'ala says: For those who take an oath of abstention from their wives, a waiting period of four months (is ordained); if they return, indeed, Allah is Forgiving, Merciful. But if their intention is firm for divorce, then, indeed, Allah is Hearing, Knowing. (2:226-227)

This period of four months has been specified to give the husband ample time to calm himself and to restore the relationship of his own volition. Moreover, four months is normally regarded as the maximum period a woman can endure separation from her husband. Commentators on the Qur'an narrate the following incident in support of this opinion: One night during his caliphate, while 'Umar was making a round of Madinah, he heard a woman singing, The night is long, the darkness all around me; I am sleepless, for I have no friend to play with. I swear by Allah that had there been no fear of Him, This cot would be shaking from side to side.

Upon investigation, 'Umar found that the woman's husband had been gone on a military expedition for a long time. He then asked his daughter Hafsah, the widow of the Prophet (peace be on him), "How long can a woman endure separation from her husband?" She replied, "Four months." Subsequently, the caliph of the Believers decided that he would not send a married man away from his wife for a period exceeding four months.