DIVORCE IN ISLAM

From my commentary Muslim Personal Law Series – 1, I was asked two questions by an avid follower of my portal and the queries are;

• Why Iddat period is compulsory for Women? Why not for Men?
• Why Men are allowed to marry up to 4 Wives? What is the rationale behind such number?

To first question, the answer relates to Science – human anatomy and the objective is creation of an unadulterated human race in the World. While the second question pertains to Demography.  

Answer to First Question:

In Chapter 2, Al Bakara, Verse 228 of the Holy Quran: – The purpose is, Allah does not want any Child to be unknown of his Father.

• To ensure legitimacy of the Child.
• Therefore, no Woman shall marry another Man without She being put herself under Iddat [waiting period to get re-marriage].
• Completion of three [3] menstrual period or 3 lunar months is mandated on the Women so to naturally ascertain the Child she rears belongs to whom.

Why Iddat not for Men?

Men do not procreate, they are just an influencer. Whereas Women procreates.

Iddat restrictions kept for Woman because the Child must know his/her Father and the Woman must know who mothered her and that’s the prime purpose for imposing Iddat on a Woman. 

Answer to Second Question:

Islam affirms Men and Women were created for the purpose of procreation. Marriage is institutionalized in Islam as contract, but not sacred. Whereas, in other religions marriage is sacred but not contract.

According to Scholars, World is a composition of men and women and their sexual orientations. Islam prohibits all kinds of sexual intimacies except a Man towards a Woman and vice versa. Going by such rationale an eligible Man to marry of an eligible Woman ratio stands at 1:4 universally. Therefore the number of Wives a Muslim man can marry limited to four. In Chapter 4, An-Nisa, Verse 3 of the Holy Quran imposes a condition for a Man to marry 4 wives only upon he would render justice in maintaining equality with all four of them and by all means.

Coming back to main subject:

KHULA

Can a Muslim Wife exercise liberty of terminating her marriage on her own will & pleasure?

Partly yes. The Muslim Wife has a choice to terminate her marriage on her own Will and Pleasure if she does not like to live in the marital bonding. However, the Will of the Husband to relieve her from the matrimony is required.

In a situation when a Husband declines Wife’s desire of denouncing him then under Islamic laws the Wife can take hers prayer before mediation for termination of her marriage with such Husband. The only ingredient for Husband granting Khula or Wife praying Khula she has to give back her Mehar / Dower money to the Husband.

What is Mehar / Dower Money?

In Muslim marriage, it is compulsory for a Husband to fix and pay certain money or wealth to his Wife and this is called Mehar or Dower money. On the day of marriage [Nikah] or thereafter during their living together as Husband and Wife but before the death of Husband or termination of their marriage, the Wife is entitled to receive her Mehar / Dower money from the Husband.

Mehar / Dower money makes a Muslim marriage valid – otherwise, it can be paid on the day of marriage or thereafter anytime till the Husband dies or he divorces her. If Wife leaves her Husband under Khula, then she no need to pay any Mehar / Dower money to the Husband had she not received it while during her matrimony.    

Equality of gender:

So in Islam both Husband and Wife have equal rights with regard to termination of theirs marriage.

Similarly, in Islam both Husband and Wife if decided together to terminate their marriage they can do so by opting a scheme “Mubarat” – a Divorce by mutual consent.

Similarly there is no restriction to Wife, she can marry any number of persons, however, for every marriage she has to get Khula from her previous Husband and must undergo Iddat Period for three menstruation to marry a Second Husband.

Courts Intervention:

As far Muslim Woman in India is concerned she has laws [Special Acts] at her disposal to seek Divorce, Restitution of Conjugal Rights, Maintenance and Custody of a Child. But for the Husband he can exercise such options under Shariat Act and Civil Procedure Code alone.

Provided if Husband was unwilling to release his Wife from the matrimony after she declares Khula on him, she still can take the help of the Court in divorcing him. Dissolution of Muslim Marriages Act, 1939, comes in handy to those Muslim Wives who despite exercising Khula but failed to obtain Divorce from the Husband.

In India, some Courts are admitting Suits on Divorce, Mutual Consent and / or any other Prayer under Mahomedan Law authored by Sir Dinshaw Fardunji Mulla – a renowned publisher of Mulla Principles of Law –Mahomedan Law – which is wrong. The reader must know that this is just a book of academic interest but not a Statute or Codified Law.

Any admission of case under those numbers [no provision of law] given for topic [mentioned in this book] is erroneous. Legally untenable as the wordings in this book was not a codified law.

What are those essential ingredients of Islamic Marriage?

Islamic marriages centered on Islamic Shariah i.e. the Quranic edicts, the Hadith [teachings and preaching of Prophet Mohammed] and the Sunnath [way of life] practiced by Prophet Mohammed and following ingredients are must for a valid Muslim Marriage in our Country.

Islam does not consider marriage as sacrament. According to Islam, marriage is just a contract, otherwise, progeny [birth of children] is legalized.  

• The Husband on or before marriage or thereafter [deferred] must give some consideration to the Wife and that is called Mehar or Dower.
• The Wife through her Wali [Legal Representative] convey her desire for the marriage with the Husband.
• Two eligible Witnesses must sign Nikhanama [Marriage Deed] executed by the Imam of the Mosque or Jamaath [congregation of Muslim elders].

In India, Muslim Marriages are solemnised and registered by the Offices of the Chief Khazi and this is very much in practice in Tamil Nadu. Chief Khazi is appointed by the State Government and they assist the State in apprising all aspects of religious ceremonies of his Faith, Islam.