Divorce in Qur'aan
Moderator's
note is followed by Dr. Asghar Ali Engineers' article below.
http://worldmuslimcongress.blogspot.com/2008/04/divorce-in-quraan.html
.
Dear God, help
us stand up for the rights of the women on whom injustice is heaped through
irresponsible statements by the anamolic Aalims. In the following article Dr.
Asghar Ali Engineer takes us through the malady that exists in Muslim
societies. Could some one translate this into regional languages and get it
published for the benefit of the common people.
Not all, but a few political, civic, business and religious leaders make gross
mistakes. Maulana Rahmani quoted below falls into that category. He may have
self interests in trying to interpret it that way.
The core value of Islam is Justice; even the wahdaniyat (oneness) is a catalyst
to get the humanity to edge towards Justice. In a just society, the fear of
taking advantage of the week and the meek dissipates, when that is gone, there
is lesser wrong doing to happen – no more lying, cheating, robbing and
infidelity.
Qur'aan talks about a refined language that occurs in a civil dialogue. The
pitiful language used by the interlocutors "Divorce is given only when
husband gets angry with his wife due to some act of hers lack civility."
This is a bad language where the woman is treated less than the man. Alhamdu
Lillah, Qur'aan has expressly added the language that Women can initiate a
divorce for the very same purpose – to believe in the equal rights of men and
women. The language of the Ulema should be "Divorce is an outcome of
misunderstanding between the spouses" which is a language of the equals,
which is an expression of Justice.
These are the dumb acts of individuals that we can find in every group be it
religious or otherwise. Unless we stand up and speak out, we are part of it.
There was a statement by a wise man " evil triumphs because good people
don't do anything about it". The least one can do is spread the word. I
admire Dr. Asghar Ali Engineers stand on this issue and I hope that should be
the stand of every Muslim – Justice to all humans.
Mike Ghouse
DIVORCE IN QUR'AN AND SHARI'AH
Asghar Ali Engineer
(Secular Perspective April 1-15, 2008)
The other day I read an article on divorce in Inquilab, an Urdu Daily from
Mumbai written by a well known 'alim and member of Muslim Personal Law Board
Khalid Saifullah Rahmani. The title of the article was "Ghusse ki haalat
ka f'al m'utabar hota hai to talaq kyun m'utabar nahin hogi" i.e. if
generally anything done in anger is valid why not a divorce given in anger? If
any lay person had written this article even then it would have been considered
outrageous and when written by one who is considered an 'alim, it is much more
so.
The Maulana argues that generally divorce is given in state of anger only and
he argues if a husband is happy with his wife, will he gift her divorce?
Divorce is given only when husband gets angry with his wife due to some act of
hers. And then he says not only divorce but also several things are done in the
state of anger. One would not like to comment on such arguments had it not
involved fate of hundreds of Muslim women. One can only ring ones hands at such
status of our prominent 'ulama. They take divorce so lightly and break up of
family for them is only a matter of husband's anger with his wife.
Maulana Rahmani also maintains in this article that all fuqaha' have consensus
that divorce takes place if given in state of anger because in this state as in
this state man remains conscious of his act. Then the Maulana goes on to quote
noted jurist Allama Abidayn Shami who has quoted Hafiz ibn Qayyim (very well
known jurist and 'alim and disciple of Ibn Taymiyyah) and argues that anger has
three stages: one that no change has occurred in his reasoning power due to
anger and what he says, he should be understanding that and he should remain
aware of its consequences and divorce pronounced in this state of anger will be
valid. Second state is of extreme anger when man is unable to understand
consequences of what he is doing and lacks in his will power. In this status
divorce will not be valid since such a status of anger borders on madness and
divorce given in a state of madness is not valid. Third state of anger is
between the two states i.e. when man is partially aware of what he is saying
and doing and partially not and divorce given in this state will also not be
valid.
These are hardly acceptable arguments and at best these are rationalization or
justification of divorce given in a state of anger. One would like to ask
Maulana and the jurists he quotes who will determine what state of anger one is
when pronouncing divorce? Is there any objective criteria available to measure
husband's anger at the time of pronouncing divorce? Has any instrument like
thermometer available for measuring the degree of anger? And for these jurists
even two witnesses for divorce are not necessary as prescribed by the Qur'an?
A divorce simply takes place if a husband pronounces divorce thrice in one
breathe and no witnesses are required. If witnesses are not required who will
bear witness as to which state of anger divorce was pronounced? Will husband's
own statement will be relied on? And if husband is determined to divorce his
wife, how can his statement as to what state of anger he was in at the time of
divorce can be acceptable. Who will decide what state of anger he was at the
time of pronouncing divorce? Very strange rationalization indeed for justifying
divorce in a state of anger.
Also, these arguments are completely at variance with what Qur'an says about
divorce. Firstly, Qur'an requires, as pointed out earlier, two witnesses for
divorce. Also, there is not even indirect evidence in Qur'an for giving divorce
in a state of anger. See these two verses of Qur'an from Chapter 65 (Surah
Al-Talaq) "O Prophet, when you divorce women, divorce them for their
prescribed period, and calculate the period; and keep your duty to Allah, your
Lord. Turn them not out of their houses – nor should they themselves go away –
unless they commit an open indecency. And these are limits of Allah. And
whoever goes beyond limits of Allah, he indeed wrongs his own soul…"
(65:1)
And we find in second verse of this chapter (65), "So when they have
reached their prescribed time, retain them with kindness or dismiss them with
kindness, and call to witness two just ones from among you, and give upright;
testimony for Allah. With that is admonished he who believes in Allah and the
latter Day. And whoever keeps his duty to Allah, He ordains a way out for him.
Let Maulana Rahmani note that Qur'an not only does not talk of divorcing in a
state of anger but requires husband to divorce her (fariquhunna) with kindness.
Also, she should not be thrown out of her marital home by the husband nor
should she herself leave her marital home unless she comes with an indecent act
(bi fahishatin). Also, Qur'an wherever talks of divorce, requires husbands to
divorce them or separate them, with kindness. The verse 229 of Chapter 2 also
talks of kindness while letting them go or separating them.
The verse is as under:" Divorce may be (pronounced) twice; then keep them
in good fellowship (bi m'arufin) or let (them) go with kindness (tasrihun bi
ihsan). Also so ensure full justice for women Qur'an requires arbitration
before divorce (4:35). Thus there cannot be fairer method for divorce than the
one prescribed by the Qur'an.
It is so unfortunate that Muslim jurists, under the influence of patriarchal ethos
of their societies, they ignored all Qur'an injunctions and gave more credence
to prevalent social practices and that too in the name of Islam. All this
corpus of laws are referred to as Islamic laws of divine origin. In total
contradiction to what Qur'an prescribes, the jurists, not only justified
divorce given in a state of anger but also described states of anger.
What is more central to Islam - justice ('adl, qist) or state of proper
consciousness in anger? Forget about anger, Qur'an does not approve of divorce
in normal state of consciousness if proper method is not followed for giving
divorce which ensures justice for wife. Any unjust act is zulm (oppression,
wrong doing). According to the Qur'an women must be treated with fairness and
justice and no act, committed in a state of anger (whatever the state of anger)
can be a just act.
Maulana Rahmani's argument is very strange indeed that husband if not in a
state of anger, will he divorce when he is happy with wife? Divorce, in fact
should never be given in a state of anger at all. Whatever state of anger,
intense, extreme or moderate, one does loose control of oneself and even if he
is conscious of consequences of his act, is unable to think coolly and
rationally. And Qur'an requires husband to remain kind even when divorcing her.
Can anyone be kind while pronouncing divorce in a state of anger? Kindness and
anger are two opposite states of mind.
Also, there are several instances in which husband pronounce divorce on getting
angry on petty quarrels with wife. Can then such divorces be justified? Often
husband repents after pronouncing divorce thrice in a state of anger but our
jurists maintain his wife has been irrevocably divorced and he cannot take her
back unless she marries some other man and he divorces her.
Husband and wife often quarrel and husband gets angry temporarily and is
provoked to pronounce divorce. So such petty quarrels would become basis for
divorce. This is not only legally wrong but also morally totally wrong. But
such are our jurists and 'responsible' members of personal law board. Can
Muslim women then ever expect justice from them?
On one hand these jurists will argue that Islam greatly raised status of women
and in pre-Islamic society women were treated as chattels and, on the other
hand, to maintain manly authority, bring back those pre-Islamic practices in
divine garb. Qur'an put the entire responsibility of treating women fairly and
with kindness on men and our jurists gave total authority to men to throw their
wives away whenever they liked.
There is not a single verse in Qur'an which exhorts women to treat their
husbands with kindness while in their nikah (marital bond) whereas there are
several verses requiring men to treat their wives with kindness. This was
because women were in weaker position in that society and Islam has all the
sympathy for weaker sections of society. In fact Islam lad greatest stress on
giving justice to weaker sections of society including slaves, servants,
orphan, widows and the poor.
As we have repeatedly pointed out Qur'an's sympathy is with mustad'ifin (those
who have been weakened) (5:28) and our Ulama show all the sympathy with men who
had all the power over women in that society (and still this continues even in
most modern society) and juristically gives all the power over them. Let us
remember justice is more central than opinion of any jurist howsoever eminent
that jurist may be. Justice is Qur'an's central principle which cannot be
sacrificed on the altar of any jurist's opinion.
If we have to project Islam as religion of justice and compassion for weaker
sections of society we will have to revise our jurisprudence completely and
prioritize justice over opinions of all past jurists of eminence. Eminence is
not a principle it is only a social status whereas justice is a moral value
central to Islam. Divorce is a very serious act and should be treated with
utmost caution and responsibility. It breaks families and causes trauma to wife
and children. According to a well-known hadith Allah has permitted act of
divorce with utmost reluctance. Thus neither Qur'an nor authentic hadith are
problem for women, it is male authority which is.
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Centre for Study of Society and Secularism
Mumbai: - 400 055.
E-mail: csss@mtnl.net.in
