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MARRIAGE |
by Sayyid Mujtaba Musavi Lari The first point this chapter must make
is that divorce is contrary to the laws of nature. The annulling of the
marriage-bond and the separation of those who should be life-partners
is a denial of the true nature of man as created and as at his best. Any
society in which divorces become numerous, with the consequent break-up
of families, evidences its deviation from nature and her requirements. Psychologists, jurists and sociologists,
concerned by the effects of divorce on the moral and juridical personality
of those involved, have gone deep into the subject, and given it as their
considered verdict that the ejection of a man and wife, let alone the
children, from the warmth of home-life into the cold unwelcome of any
substitute establishment they may find, deals a mortal blow to their spirits
and exposes their children to the onset of moral ailments and psychic
traumas against which family life had immunised and protected them. These
scientists further hold, almost to a man, that for these reasons divorce
should be rendered practically impossible by severe sanctions, except
in a few cases where some cause, generally from outside, like the onslaught
of insanity or criminality, makes an exception to the rule. But what should be done in cases of irreparable
breakdown of relationships? Must the partners stay in the hell they have
made? Or may a way-out be found for them? Christianity says blankly. "No
divorce!" But Islam more realistically faces the consequences of
irreparable breakdown as a fact, and provides a way-out. Every possible
safeguard is laid down in the statute book to prevent such a way-out by
divorce being abused. But it is clear that the bankruptcy of the relationship
is only worsened by forcing the partners to stick together; and their
misery is only increased. Hence divorce, though stigmatised as "
the most loathsome of states in the eyes of the Lord" is made possible
when it is the better of two bad roads. It may even be that the very separation
removes the cause of the irritation between man and wife, while the lapse
of time in absence softens the hearts and recalls the good points which
had been lost under the pains of discord; so that the couple seek reunion,
and in some cases actually start the same partnership up again in pardon
and joy. Since Islam's aim is the firm establishment
of marriages, in the interests of this objective certain liberties are
denied. The right of divorce is given to the man only, except in very
exceptional cases. This is to safeguard the best interests of women and
save them from falling victim to passions. Manifestly, if two people both
have the right to institute divorce proceedings, the basis of confidence
is made very shaky on both sides. What better safeguard can there be,
therefore, than to give the right of divorce proceedings primarily to
the one who has by nature more subjection to the powers of reason, and
patience in the face of lack of tenderness; and who stands to lose the
sum he has given as a marriage portion, as well as having to undertake
the financial burdens of the children's upbringing? The differences in the constitution of
a man and woman are manifest. The head takes first place in the man's
decisions and the heart in the woman's. Reason and emotion are the gifts
given to each respectively in their creation. As Dr. Alexis Carrel puts
it: "The differences between men and women are, obviously, the physical
ones : and then, less obviously, the internal ones like the dispositions
of the nerves, the different mental and emotional talents, both of which
are of supreme importance for the future of civilisation. Partisans of
Women's Liberation aim at a false conception of equality,. as if that
desirable condition meant precise similarity and identity in upbringing,
employment, responsibilities and duties." ("Man, the Unknown"
pp. 84-87). It is for these reasons that Islam's Feqh
lays down: "Divorce is in the hand of the man." And it is in
consideration of the woman's delicacy of spirit that the power of ending
a shared life is not granted to her. Islam, in addition to the manifold
measures it has taken to make it easier for people to enter the married
state and start families, also makes it more difficult to break up the
home. Everything possible is done to ensure happy sound home-life, for
the sake of the family's members and of the society to which they belong.
It is therefore that it is written in Sura IV: Nisa'a -"The
Women", verse 19. "O men, live with your wives in kindness and
equity. If you dislike anything in them, that may be the very point which
God will use to bring about much blessing." In order to take away such feelings of
dislike and prevent their turning to hatred, and to remove their discomfort,
Islam awakens the man's conscience to live in kindness and equity with
patience, and not to cast off a wife who is temporarily in disfavour,
since it may be that goodness and blessing may come through those very
wives; so that it would be stupid to end the relationship hastily. As
is written in the same Sura IV Nisa'a -"The Women", verse
128: "If a wife fears cruelty or desertion on her husband's part,
there is no obstacle to their arranging an amicable settlement between
them for which the wife must renounce some of her rights. But if they
return through reconciliation and peace through such unselfishness, such
a settlement is better than separation and divorce." The same dislike of divorce, as the most
detestable of extreme measures to be adopted only in the direst emergency,
is advanced by all Islam's greatest jurist-consults and leaders, an attitude
summed up in the sentence in the book "Mustadrak" (Vol.
3, p.2): "Any woman who seeks to be divorced from her husband, save
in cases of extreme necessity, falls out of the grace and mercy of the
Lord." Or again in Vol. 3 of the "Vassa'el" (p.144):
"Enter upon matrimony. but do not divorce your wives, since divorce
shakes the very throne Of God." Islam fences in the man's power of divorce
with many limiting safeguards. A man may not put away his wife by violence,
harassment, injury or in a way which may drive her to a life of immorality
and corruption. Thus Islam has for centuries surpassed anything yet achieved
in Western countries, in its initiative to remove differences and restore
understanding in family life. This is particularly true of the family
courts, where well-meaning relatives have a large say and everything is
done to bring about reconciliation. Causes of differences are deeply studied;
and, as relatives, they are able to go deep into confidential matters
without either of the couple feeling that their private secrets are being
exposed or their feelings excoriated in too public an ambience. When the
causes of the difference have been brought into the light of day the members
of the family court exert all their powers of sincerity and' heart and
affection to bring about reconciliation and to quench the fires of temper,
exhorting both sides to unselfishness, tolerance, and an effort to understand
each other's point of view. Since both man and wife respect these elders
and have full confidence in their compassionate affection, they frequently
accept the family court' s recommendations for adjustments they should
make in their relationships and behaviour towards each other. As it is
written in Sura IV. Nisa'a-"The Women" (verse 35): "Should
you fear that division will arise amongst them, appoint an arbitrator
on the husband's side and an arbitrator on the wife's side from amongst
their relatives and send them to them. As soon as they desire peace and
reconciliation the Lord will vouchsafe it to them for He is all-knowing
and all-wise." Should the causes and roots of the initiation
of divorce proceedings prove to be too deep, so that there is an irreparable
breakdown in marital relationships, and all the efforts of the relatives
fail to bring about any sort of hope of reconciliation, Islam in its realism
recognises that each party must take their own road. It must be plain
that such a family court is far more likely to succeed than all the public
courts of law or marriage guidance clinics. In fact these only too often,
being strangers to the family and not privy to their inmost secrets, merely
increase the rift, because of the clumsiness of their well-meaning efforts.
A public court has the duty to hear the evidences produced by both sides;
and then, in the cold dry heartless atmosphere in which only exact truth
and not mercy or clemency reigns, decide which side has most right and
give verdict accordingly. It has neither the heart nor the spiritual influence
of relatives to press for reconciliation, and cure the causes of the quarrel.
In the Qur'an, Sura LXV "Talaq" -"Divorce"
ordains in verse 2: "Two just persons from amongst yourselves shall
bear witness to the evidence before God when a divorce is settled."
Without these two witnesses, there is no legal divorce. An advantage of
their appointment is that they can exert every pressure of affection and
wisdom to avert the final catastrophe for quite a period before reluctantly,
if they have to do so, agreeing that there is no other way out. They frequently
succeed in the better course. It is further laid down that no divorce
may be made absolute save after the woman' s period of purification after
menstruation or childbirth is completed. This need to wait awhile often
proves a breathing-space in which the man's feelings of tenderness once
more assert themselves over his irritations, and make him decide against
divorce. Further when a man finds sharing his life
with a particular woman wearisome and irksome and decides on divorce,
this decision of his does not suffice in itself to end their living together
not does it become effective until the expiry of the "Iddat",
i.e. the period fixed by the Feqh during which a divorced or widowed
woman may not be married to another man: and this period also gives a
breathing-space which frequently results in the man's change of heart
and decision to continue the married bond with the wife he planned to
divorce. Finally, after the execution of the formalities
for a "revocable divorce" (Talaq-i-raj') a man may not
expel his wife from the home until the termination of the period of the
"iddat" which may last anything up to three months, nor
may the wife quit their joint home except in a desperately exceptional
case during that period. As the Sura LXV "Talaq" "Divorce"
enacts (verse 1): "You may not expel women from their houses, nor
may they themselves quit, except if they have been proven guilty of some
open lewdness (during the "iddat" period). These are
limits set by God. Should any man transgress these limits he does so at
the peril of his own soul, and to his own harm : for you know not whether
God may bring about some new situation later (than the decision to divorce)."
No formalities are necessary to abrogate
a revocable divorce during these months. A mere indication of desire for
renewal of the marriage relationship by the man suffices. Should the wife feel such hatred for her
husband that she repays him the statutory portion of marriage settlement
he had given her, or a portion of her own property, that counts as her
divorcing him; but this type of divorce is revocable within the stated
period, so that if she changes her mind, and her husband agrees, he can
still take her back into their home. By these many means Islam safeguards the
holy estate of matrimony from shipwreck on the rock of hasty decisions
onto which emotional storms may drive some couples. Islam had also done much to protect the
wife's rights and to save her from having to continue to live in an unhappy
environment. Among beneficent measures are the following: 1. the wife can insert a clause in the
marriage contract ensuring that (a) incompatibility of temperament are so provided against that if any of
the above five conditions is broken she can approach a lawyer to obtain
a divorce for her through the courts. 2. the wife can make it impossible for
her husband not to divorce her by being intolerably refractory, vexatiously
shrewish or deliberately incompatible in relationships, familial, sexual
or social; 3. the wife can resort to the courts if
the husband has been incapable or negligent in supplying her with maintenance
or has put obstacles in the way of her obtaining it ; or if either partner
deprives the other of conjugal rights or fails in marital duties; the
Muslim Qadhi, if the woman' s plea is proved, can compel the husband
to treat her right, to be reconciled, to disburse the proper sums, to
confer her rights upon her in every form : and if the husband proves recalcitrant,
or refuses to obey the judge's orders, the judge can then compel him to
divorce his wife; 4. the wife can enter a plea in the Islamic
court and obtain an injunction if the husband accuses her of lewdness,
unchastity or unfaithfulness, or denies his own paternity of her child
: if the husband cannot prove his case the judge will order the husband
to separate himself from his wife in accordance with the relevant legislation; 5. the wife may, in the case of intolerable
revulsion or aversion, in a simple fashion bring about a discontinuance
of their union by renouncing a large part of her marriage portion, while
freeing her husband from his obligation to pay her alimony during the
"Iddat" breathing-space period; 6 the wife, if the husband absents himself
so that no news of him reaches her and she falls into financial or other
difficulties, can resort to the courts and request a divorce. the judge
will then perform the necessary formalities to annul her marriage contract. It is written in Sura II: "Baqara"
-"The Heifer" (verse 229): "A divorce is only permissible
twice : after that the parties should either hold together in equity or
separate in kindness. It is not lawful for you men to take back from your
wives any of that portion which you have given them except when both parties
fear that they would be unable to keep the God-ordained limits. If you
judges have reason to fear that the parties will be unable to keep the
God-ordained limits, so decree, for there will be no blame on either of
them if she hands over a sum in exchange for her freedom. These limits
are God-ordained so do not transgress them since that is to wrong yourself
as well as others." In the "Exegetical Collection"
it is related in Volume I on page 167 that Ibn Abbas reported that Jameelé,
wife of Thabit bin Qais, sought audience of the Prophet and complained
to him: "O Apostle of God! I cannot stand one moment more of life
with Thabit bin Qais, nor shall my head ever rest again on the same pillow
as his." After a pause she added : "I am not accusing him of
a lack of faith or of moral and marital virtues: but I am afraid that
I myself will fall into infidelity and blasphemy if I have to spend another
minute with him. I turned up the tent-skirting and my eye fell on my husband
in the middle of a crowd of other men. He looked so ugly, a black-avised,
dwarfish runt, and I hated him, and I can't go on. ...!" She ran
on thus, and the Prophet, after absorbing her outpouring, tried to advise
and admonish her, but she paid him no heed. So he sent for Thabit bin
Qais and laid the situation before him. Thabit was deeply attached to
Jameelé, but self-sacrificingly and for her sake agreed to take back the
marriage portion he had settled upon her - a beautiful garden - and give
her a khul' divorce. There are cases in which resort to the
court by the wife is statutory. There are also cases in which she can
divorce her husband without legal aid, as in cases of certain grave chronic
diseases like leprosy or elephantiasis; or because of the onset of lunacy,
or of physical defects which prevent marital intercourse, like impotence
or castration of the husband. For these Feqh gives the wife haqq-i-faskh
- the right to the rescinding or annulment of the marriage, which "faskh"
is not the same as the khul' divorce, and does not involve the
same financial renunciations by the wife as khul' does. Germany and Switzerland, in Europe, also
recognise lunacy as grounds for the annulment of a marriage or for separation.
France does not admit either grave chronic disease or lunacy as an adequate
ground, and insists that the healthy spouse must care for the leprous
or lunatic partner. Undoubtedly such longsuffering and lovingkindness
is highly praise worthy. while extolling it as a counsel of perfection,
Islamic realism prefers to leave the partners free to choose separation
or continued care, according to their own conscience. The West is suffering terribly from the
laxity it has allowed in the break-up of marriages and the violently increasing
incidence of divorce. These disasters are really reactions to over-pressure
by the churches, which prohibited and condemned divorce one hundred percent
for many centuries, while the secular governments gave recognition to
it. For instance, divorce was totally prohibited in France until the French
Revolution of October 1789. In 1804, in response to popular demand, divorce
was legalised; but in the following 12 years it increased so appallingly
that the religious bodies brought renewed pressure to bear, until in 1816
the law legalising divorce was rescinded though physical separation of
the parties was permitted. However, public pressure built up again so
much that in 1884 divorce within certain limits was legalised once more. Here follow the conditions on which in
Western lands divorce for wife and husband was legal until recent times: 1. a criminal act committed by either
party which involves the penalty of life-imprisonment, exile, loss of
civil rights or temporary imprisonment with hard labour. 2. physical violence, mercenary prostitution,
and a few other similar criminal acts of the one partner against the other. 3. adultery by either partner - though
in such cases the wife has the right of divorce only if the man commits
adultery with another woman in the house which belongs to his wife and
himself. The following is the road by which a wife's
infidelity was proved : note it well! "The infidelity of a wife must
be proved completely in the eyes of the police. The wife or the husband
plan to be in different places for however a short time. They must agree
about some third person to be cited as co-respondent and this person must
be prepared to undertake this service. And then at the stated hour the
wife must be caught in flagrante delictu with the third
party', and the husband must have the police on the spot to catch her
out and so prove her infidelity. Thus the police accompany the husband
to the trysting-place; and when they catch the wife in flagrante delictu
this is accounted adequate grounds for her husband divorcing her."
(The Law of Divorce and Renewal of Marriage p.99). See what a mass of further impurities
the impurity which wrought the need for divorce in the first place has
carried in its train. And this is the "civilised" world of the
West, which allows women entry into public and political life, and with
the other hand takes away her honour, her femininity and the high standards
which it should be her privilege to set, and turns her chastity into a
mercenary bargaining-point. It must be admitted that since I first put
pen to paper on this matter, efforts have been made in many Western lands
to eradicate the worst of these abominations. America makes divorce easier for both
parties. It is not surprising, therefore, that American divorce figures
are the highest of all. The wise tremble at the results : the
wisdom of Islamic dispositions shines by contrast like the sun in darkness.
At a conference in Strasburg, statistics of one year's divorces which
could be attributed to the overwhelming desire of wives to be "in
the fashion" "a la mode", "comme il faut" and
to "keep up with the Joneses" in modernity of garb and guise
were quoted as being: 1. in France, 27% of all divorces; Not every Parisienne is an excessive slave
of fashion. Nonetheless it is reckoned that the costs of unnecessary purchases
made by women simply to keep up with "mode" come to no less
than 5,000 tomans per head (£300-£400 per head per annum). Yet all this
expenditure adds nothing to the woman's natural beauty, moral stature,
ease of spirit or calm mind! European statesmen, and responsible thinkers
everywhere, are well aware of the danger, and fear it acutely. All who
possess the slightest sense of philanthropy must seek the means of stemming
the sweeping tide of this flood of evil through the world.
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