Divorce in Islam
Before Islam the power to pronounce divorce was only vested in husband and wife was under no circumstances entitled to claim a divorce, later on she got a qualified right to ask divorce.
The Prophet (PBUH) reformed the system and restrained the powers of husband but also granted the women a right to ask for dissolution on certain reasonable grounds.
He (PBUH) also provided a complete process for such separation. Dissolution of a valid marriage takes place on any of the following grounds:
Option of puberty
It is renunciation of religious faith, when a Muslim renounces his faith it is called apostasy. The person is called apostate. As far as marriage is concerned, such conversion to another religion automatically dissolves it.
If the wife converts to Islam in a country where Islam is the rule of the land her marriage will stand automatically dissolved and she will not have to undergo a period of iddat.
Marriage is dissolved on death of either person under Islam unlike Hindus. However, widow has to observe a compulsory period of iddat [4 m 10 d] after death of her husband, divorced wife is required to observe period of iddat for 3 months, as per Holy Quran, “
And divorced women shall wait for three menstrual periods” before entering into another marriage tie. This main reason for this waiting period is to get sure about the pregnancy and parentage of child (if any).
Option of puberty:
This option is used by a person whose marriage was performed during his/her minority by the guardian and on attaining puberty he/she wants to repudiate that marriage.
Person has provided some grounds on which minor on attaining majority can repudiate the marriage such as, if guardian has acted; fraudulently, carelessly,
negligently or for disadvantage of minor, such as he/she is married to a lunatic, insane, impotent etc. This option is further classified into ‘option of repudiation’ and ‘option of puberty’.
Concept of Divorce:
Divorce is the exercise of right of pronouncing unilateral breakage of marriage tie by husband, at any time during the subsistence of a valid marriage. The term divorce and talaq are often treated as synonymous. Both sunni and shia recognize this authority of husband to pronounce talaq.
The technical meaning of talaq is ‘freedom from bondage of marriage’. As per person, it is a release from the marriage tie, either immediately or eventually, by the use of special words. When we talk about separation it can be in any of these ways:
By the husband at his will
By the mutual understanding of husband and wife
By a judicial decision at the case of husband or wife
“But if they decide to divorce them, they may do so, surely Allah hears and knows everything” [Al-Baqara] This power given to be husband should never be used arbitrarily the Quran specifically fixes period in which this right can be exercised, this period is known as “tuhr”.
Its benefit is that the doors of reconciliation remain open between the both. When the divorce proceeds from husband it is called “talaq”; when it is affected by mutual consent it is called “Khula”. However,
Talaq is permitted only when the wife by her conduct or her words does injury to the husband or happens to be impious and it is obligatory when the husband cannot fulfill his duties, as when he is impotent.
Procedure of Divorce:
Islam has prescribed the correct manner for the pronouncement of divorce. This may be understood as under:
If the husband pronounces divorce expressly i.e. It must be pronounced in tuhr and wife be allowed to complete three periods, during which no sexual intercourse be taken place.
In such a case husband can retake the wife before expiry of that period and upon expiry of that period wife is free to marry again to anybody she likes.
But she cannot remarry the same husband without going through an intervening marriage with a third person known as “halala” as per few.
Some jurists prefer that two witnesses must be present at the time of pronouncing divorce just to avoid any future dispute as to announcement, it should be noted that under shia law presence of witnesses is necessary.
According to mode of pronouncing divorce it can be classified into following:
If husband wants to dissolve his marriage for good, sharia asks him to follow following steps:
He has to pronounce divorce expressly in tuhr,
then wait for two subsequent tuhrs or he can pronounce three separate divorces in three successive tuhrs, this is known as “Talaq-e-Sunnat”.
The husband has to provide maintenance to wife during the period of iddat and not afterwards.
Dissolution by Khula:
It is a dissolution of marriage by mutual agreement between husband and wife. Such mutual agreement must be made at the same meeting in express words. Dissolution by agreement may take place either by khula.
A divorce by khula is the divorce with the consent and at the instance of wife, in which she agrees to give consideration for her release. It is redemption of the contract of marriage, in khula offer and aversion comes from wife. A divorce by khula is consideration passes from wife to husband.
Nevertheless, Islam provides a detailed procedure for the pronouncement of divorce along with its different types. The modes of dissolution of different types of marriages are different.
It should be kept in mind that after the dissolution of marriage no mutual rights remain and the status of husband and wife terminates now both are free for enter into a new marriage tie but wife will have to wait for prescribed period of iddat as mentioned earlier.
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