Talaq (Divorce) literally means “undoing the knot”, but in Islamic law, it signifies the dissolution of marriage, or the annulment of its legality by certain words or even gestures. The section on divorce in the Hidayah is twice the length of the one on marriage, and its reading pains and amuses at the same time. According to a tradition, divorce is hateful to Allah but it is perfectly legal and it appears to have been made pretty easy for those who are so minded.

The Prophet had said that “every divorce is lawful, ex­cepting that of a boy or a lunatic.” A divorce can be pro­nounced personally or delivered from a distance through a letter; it can be explicit (sarih), or implied (kinayat). It could be expressed metaphorically, like “take veil’, or “join your people”, and this amounts to a divorce. For the benefit of the dumb, it can be expressed in the language of gestures, for example, by dropping three pebbles. A perfectly, normal person too can take advantage of this language. For example, if a man says to his wife, “you are under divorce thus”, hold­ing up his thumb and fore and middle finger, three divorces become effective. The divorce can be pronounced monosyl­labically or in a full sentence; it can be pronounced sepa­rately, “you are divorced, divorced, divorced”, or collectively by saying “you are divorced thrice”. In fact, the Hidayah takes many pages in discussing the grammar and arithmetic of these pronouncements. For example, if a man tells his wife, “I divorce you with divorcement”, it counts two di­vorces depending on the intention of the husband. He could also say to his wife, “you are under three moieties of two divorces”, and it means three divorces; for “the half of two is one, and consequently three moieties of divorce amount to three.” True, things in normal practice could not be this bad, but all this shows the contempt of the Muslim divines for women and the levity with which they discuss the subject.

A divorce is automatic as soon as the word ‘talaq’ is re­peated three times. If the wife is a bond-maid, two times will do. It has nothing to do with a man’s intention, nor the ex­pression of regret could stop its operation. Sometimes it has led to ludicrous results. The Hindu (January 1, 1987) re­ported the case of a “drama in real life.” In Islamabad, in a divorce scene in a TV Urdu play, a prominent actor, Usman Pirzada, was shown divorcing his wife by saying ‘talaq’ three times. But to his misfortune, the role of the wife in the play was enacted by his real wife, Samina. The religious scholars lost no time in proclaiming that the actor and the actress stood separated after the triple talaq. This was irrespective of the fact whether they intended to divorce each other in real life or not. The divines issued the fatwa that according to the Prophet, in such cases words uttered unintentionally or even for the sake of fun are binding.

Such talaqs, however, are not laudable (talaqi–hasan). A good talaq is one where a husband repudiates a wife by three divorces in three tuhrs, meaning spaces intervening between three menstrual fluxes. On the other hand, a triple talaq delivered in one sitting is bad (talaqi-bid’at). But though bad, it is perfectly legal and has been the most com­mon. Now attempts are being made in certain Islamic coun­tries to curb its excesses. In Pakistan, for example, according to the Muslim Family Law Ordinance (1961), a husband has to notify an Arbitration Council immediately after pronounc­ing the triple talaq. This freezes the actual talaq for 90 days during which the Council tries to bring about conciliation.^[1] Similar laws are in operation in Egypt, Indonesia, Turkey, Tunisia, Lebanon, Syria, Afghanistan, etc. But with the rise of fundamentalism in these countries, one cannot be sure how lasting or effective these reforms would prove. Recently, a High Court in Pakistan had given a ruling that a divorce would become effective only when registered with a local Council after due process of law. But many Islamic scholars and religious leaders rejected this ruling and stated that un­der the Islamic law, the spoken or written word of divorce was enough to end a marriage contract. Perhaps as a result of this pressure, in 1992, the Supreme Court invalidated the requirement that a husband give written notice of a divorce to a local union council, leaving the husband free to confirm or deny at will and making the new couple legally vulner­able. A woman could be charged with adultery if her former husband denied having divorced her. In fact, this happened in February 1993 when a district and sessions court sen­tenced Nasreen Bibi to be stoned to death and sentenced her second husband to 100 lashes when her first husband denied having divorced her. Mercifully they were acquitted on an appeal when the higher court decided that there was suffi­cient evidence to prove that they had entered into marriage in the belief that Bibi was divorced.

According to the Shariat, a divorce could almost be auto­matically procured under certain conditions: when the hus­band is impotent; when he or she refuses to embrace Islam; when either of them apostatises from Islam; when the hus­band takes a vow of not having sexual intercourse with the woman for four months and keeps the vow; when the pair belongs to two countries, darul-harb and darul-Islam, and either of them refuses to do hijrat or migrate; or when the husband belongs to an inferior stock or status, and so on.

Returning to the wife (Rijaat)

If a man gives to his wife one or two reversible divorces, he can take her back any time before the expiry of the iddat, even against her will, for Allah has said in the Quran, “You may retain them with humanity” (2.231).

Rijaat is of two kinds: express and implied. In the first, the husband says, “I have returned to my wife”, in the sec­ond, as the Hidayah puts it, “he has carnal connection, or takes conjugal liberties with her, such as viewing those parts of her which are usually concealed.”

But if a woman is divorced by three divorces, he cannot marry her again unless she is married to a third party and they have carnal union. This is in accordance with the Quranic injunction: “If he divorces her, she is not after that lawful to him, until she marries another husband” (2.230). This requirement is more than formal. The second marriage should be consummated before a woman is again lawful to her first husband. This is made clear in the following tradi­tion: a divorced woman having married another man wanted to go back to her old husband; for, as she explained to the Prophet, all that the new husband had for masculinity was “like a fringe of garment.” The Prophet smiled but refused her permission to go back to her old husband. “You cannot do that until you have tasted his sweetness and he has tasted yours,” he said (Sahih Muslim).

The Hidayah explains that the tradition only makes explicit what is already contained in the Quranic verse. It explains that the word used in the verse is nikah which, as we have already seen, has two meanings: carnal conjunction and legal union. We are told that the word in the text of the Quranic verse is used in the former sense. But we are also told further that the condition of consummation in such a case “requires only the entrance of the penis into the vagina, and not the emission of the seed.”

This circuitous permissibility or rerouting gave birth to the institution of a mustahil or mohullil, a second husband procured for rendering the woman lawful for her first hus­band. The Prophet curses the two parties: “Let the curse of Allah fall upon the Mohulil (legalizer) and the Mohallal-le- hoo (the thing legalized)”, but nothing can be done. The whole proceeding is abominable but perfectly legal. Sir Wil­liam Muir tells us that the institution passed into such prov­erbs as, “A thousand lovers, rather than one mostahil”, mean­ing that many lovers and gallants cause less shame to a woman than one Mostahil.

Forms of Divorce

There are other forms of divorce too. One is Khul’, which we have already mentioned and in which a woman buys her divorce from the husband by forgoing her dower and even paying him some compensation. This form has seldom been put to any use and it certainly has never amounted to a woman’s right to divorce her husband. In fact, there were no channels and she could not initiate any action for divorce; therefore Muslim women hardly ever exercised that right except at the initiative of their husbands. For example, dur­ing the British rule, till 1939 Muslim women, did not have the right to approach the court for dissolution of marriage and would sometimes resort to conversion to end an unhappy marriage. Faced with the problem of conversion, the ulema petitioned the Government for a change, resulting in the passing of the Dissolution of Muslim Marriages Act of 1939, proving that the Shariat is not that final even for the ulema. But now that fundamentalism is on the rise in Muslim coun­tries, the threat of conversion is no threat — the Muslim law of apostasy would take care of it.

Another form of divorce is called Ila (vow); this too we have mentioned. In this form, a husband swears to abstain from carnal knowledge of his wife for four months if she be a free woman, or two months if she be a slave. If he keeps the vow, Ila is established and the marriage is automatically cancelled. But if he fails to keep the vow he retains the wife after making some expiation.

There is also another form of divorce called Zihar (back) which is now only of historical importance. In this form, one said something like this to his wife, “you are like the back or belly or thigh of my mother or sister.” In the pre- Islamic Arabia, it was a popular form of divorce, but the Prophet allowed that a contrite husband could retain the wife and Zihar could be expiated by emancipating a slave, or distributing alms, or even by undergoing a fast. The Hidayah adds other refinements. It says that Zihar could be pronounced singly upon one wife or collectively upon all the wives; but it has no effect if it is pronounced upon a female slave: firstly, because “the legality of a female slave is of a secondary or dependent nature” and secondly, be­cause “Zihar is an imitation of divorce, and divorce does not take place upon a slave.” Similarly, Zihar pronounced by a Mussulaman alone is valid, that pronounced by a Zimmi or infant is nugatory.

There is also another form of divorce called Laan or im­precation. It operates when the husband brings a charge of adultery against his wife, and there are no witnesses avail­able. They both testify, confirming their testimony by an oath. It involves, on the part of the husband, if his accusation be false, the curse of Allah; and, on the part of the wife, the wrath of Allah, if it be true. Then the divorce becomes effec­tive.^[2] They cannot marry each other again according to Imam Abu Yusuf; they can according to Ammu Abu Hanifa and Imam Muhammad, if the husband acknowledges that he falsely laid adultery to her charge. The rule of Laan does not apply or applies in a modified form when one or both the parties are slaves, infidels or Kitabees.

In some cases, Laan provides a happy escape door. The Shariat punishes adultery (zina) with lapidation, or stoning to death (rajm); it also prescribes eighty lashes for a man who brings this accusation against a married woman without being able to prove it with the help of four witnesses (gazf). And yet sometimes a husband may have precisely this charge, true or false, against his wife who, again, may be innocent or guilty. If the charge is true, the woman is stoned to death; if it is false, the man gets eighty lashes. But Laanprovides a lucky escape and makes it possible for them to separate without punishment.^[3]

Laan for obtaining a divorce seems close to the method that was sometime ago practised in Western Christian coun­tries too where adultery provided the sole ground for divorce till recently.^[4] For example, in England, not long ago, couples who had other reasons for separation confessed to adultery in order to procure a divorce. Now England has changed its laws on divorce but Indian Christians still follow the old British laws incorporated in the Indian Divorce Act of 1869.^[5]

Custody of Children

Divorce often involves children, the problems of their custody (hizanah) and care. In Muslim law, in cases of sepa­ration, the custody of infants belongs to the mother while their maintenance (nafaqah) is the obligation of the father. Tradition makes the Prophet give a divorced woman the care of the infant with the words, “thou hast a right in the child prior to that of thy husband.”

The period of custody differs from school to school. It is two years according to the Shia practice. It lasts till puberty according to some jurists, but, more generally, it ceases at seven years after which the father takes over. But if it is a female child, custody lasts until the first appearance of the menstrual discharge, or sometimes even before that when she begins to feel carnal appetite which according the Mus­lim divines commences sometime before the menstrual dis­charge, at between eleven and twelve years of age.

There are also other restrictions. The mother loses the right to the custody of the infants if she apostatises, or mar­ries a stranger, or changes her domicile. She has an exclusive right to an illegitimate child.

A Zimmi mother is also entitled to the custody of her child, but this lasts only as long “as the child is incapable of forming any judgement with regard to religion, and whilst there is no apprehension of his imbibing an attachment to infidelity.”

Though a mother has her child’s custody, she cannot handle its property. For even though she has love for the child, she is regarded as deficient in discretion, thus disquali­fying her for looking after the property interests of the child.

Foundlings

Here we may also mention the problem of a foundling (laqeet). In the language of Islamic law, the term signifies “a child abandoned by those to whom it properly belongs, from a fear of poverty, or in order to avoid detection in whore­dom.” The law says that “taking up of a foundling is laud­able.” Its maintenance is to be defrayed from the public trea­sury. But even in cases where the child is maintained by him who brought him up, he owes his benefactor nothing “since in maintaining him he acts gratuitously”. If a child is found in a Muslim territory, he is a Muslim, but Zimmi if he is found in a Zimmi land.^[6]

The Muslim Fiqh on foundlings is humane but it seems that some other law, customary or otherwise, is also at work. In October, 1982, a new-born child was found in a mosque in Karachi. A mullah on seeing a crying baby on the stairs of the mosque gave a fatwa that the child was illegitimate and should be stoned to death. The first stone was thrown by the mullah himself. Thereafter a mad crowd showered the child with stones.

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This excerpt is taken from WOMAN IN ISLAM by Ram Swarup and reproduced with the kind permission of the publisher. We urge you to buy the book to read an exceedingly meticulous analysis of the subject.
References / Footnotes

[1] Probably, the attempt is made on the Quranic injunction: “And if you fear a breach between them twain (the man and his wife), appoint an arbiter from his folk and an arbiter from her folk. If they desire amendment Allah will make them of one mind” (4.35).

[2] The case throws no light if the roles were reversed, i.e, if the wife complained of adultery in a husband and even offered to produce four witnesses and did it. Probably no such case happened. The fact is that in most Semitic societies, while adultery in a woman was punished, it was overlooked in man, particularly if his victim belonged to a lower order. In Europe even long after it became Christian, if a feudal master “covered” his serf-maid “without her thanks” (that is against her will), he paid the court three shillings, as WiU Durant tells us in his The Age of Faith.

[3]    The Quranic verses that allow this course are: “As for those who accuse their wives but have no witnesses except themselves; let the testi­mony of one of them be four testimonies, swearing by Allah that he is of those who speak the truth. And yet a fifth, invoking the curse of Allah on him if he is of those who lie. And it shall avert the punishment from her if she bear witness before Allah four times that the thing he said is indeed false. And a fifth that the wrath of Allah be upon her if he speaketh truth” (24. 6,7,8,9).

[4]    Under strict Christian law adultery was no ground for divorce. It could procure separation but no right to remarry. Annulment of a mar­riage could only be had from the Church if it involved impotency, lu­nacy, or lack of “form” (witnesses), or by proving that the marriage was uncanonical in some way and in the very first place should not have taken place at all. But the process involved greasing many palms and was a costly affair.

[5]    According to the provisions of this Act, while a Christian husband could seek divorce by merely establishing adultery on the part of the wife, a Christian wife had to prove bigamy, cruelty, desertion or incest, in addi­tion to the husband’s adultery for procuring a divorce. Currently, a new Act, the Christian Marriage Act, is in the offing which would make divorce possible by mutual consent and will lay down equal grounds for divorce for both men and women.

[6]    By contrast, Christian practice has been less humane and equitable. During Medieval Ages, a child left at the door of the church — which was allowed — was brought up as a serf on the ecclesiastical property. Things have changed since then for the better in some respects. But orphans thus left or acquired or even bought as Missionaries once did in China and other colonial countries (it led to such brisk trade in “orphans” that chil­dren began to be kidnapped on a large scale) are brought up in Christian faith. In fact, this is their avowed motive in running orphanages. Mother Teresa brings them up as Catholics.