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Faculty of Business and Law
Module Title: Islamic Law
Critical Essay:
Critically discuss the various forms of divorce in Islamic law. Does a woman have the right
to dissolve her marriage?
Name of Professor
Name of Student
Name of the University
Date
Word Count: 2000
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Table of Contents
Introduction: ........................................................................................................................................... 3
Types of Divorce: .................................................................................................................................... 3
Divorce In The Present Day: .................................................................................................................. 5
Rights Of Women To Dissolve Their Marriage: .................................................................................. 5
Conclusion: .............................................................................................................................................. 7
References ................................................................................................................................................ 8
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Introduction:
Marriage is a sacred aspect of the life of every man and woman. As a result, Islam stresses
the importance of maintaining a marriage and advises against terminating a marriage contract on
the grounds of separation or divorce. In the event of discord and dissent between the spouses, the
Shariah has prescribed a suitable method for their separation to decide new paths based on the
circumstances. While the unity of the family is of great significance in Islam, both partners are
entitled to dissolution of their union (Islam, 2015). In order to resolve marriage clearly, the Qur'an
and Sunna guide anyone involved in the process. Before that, we must first understand the relation
of the Shariah with the Quran and Sunnah and how we arrive at these rulings through them.
Shariah is Islamic law from the Qur'an and Mohammed teachings. There are no laws but a
series of guidelines concerning facets of life, including marriage, divorce, finances and practices,
including fasting and praying (Hassan, 2002). The Quran and Sunnah are the primary sources of
Islamic law, whereas Ijma and Qiyas are the secondary sources of Islamic law. The Shariah Law
is hence derived using all these four sources. In light of this, there are numerous rulings on
marriage and divorce that have been studied and relied upon for centuries and lay the foundation
on the details of divorces.
Types of Divorce:
Divorce means the termination of the marital partnership between the married couple,
individually or by an agent. Divorce is one of the few lawful acts most disliked by the Almighty,
as mentioned by the Holy Prophet (PBUH) (Ibn Majah 2018). However, no couple should be
forced to stay together, which is haram, hence if there is no circumstance for which the married
couple can stay together, the best alternative is a divorce (Islam, 2015).
Different methods of divorce further have more divisions in them which will be discussed
in detail below.
1) Talaq-ul-Sunnah:
This form of Divorce was based on the tradition of the Prophet's Sunnah and, as such, was
regarded as the most accepted form of Divorce. Talaq is considered evil, and when it was not
possible to escape that evil, the only way will be through Talaq-ul-Sunnah, where the
consequences of this evil can be revoked. It is also known as revocable Talaq since Talaq is not
finished at once, and reconciliation between husband and wife is still possible. Only such a Talaq
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during the lifetime of the Prophet has been in practice. Both the Sunni's and the Shia's accept this
form of Talaq (Islam, 2015). It has further two modes which are mentioned below.
a) Talaq-I-Ahsan:
"Talaq-e-Ahsan" is the correct way of Divorce in which the husband expresses a single
sentence of divorce by expressing his desire to divorce his wife. This can be the only one said in
tuhr (when the woman is not menstrual) and has to wait until iddat is over. The iddat duration
usually is three menstrual cycles for a woman divorced from her husband. She is not eligible to
marry another man during this period. If the husband resumes his co-existence with his wife before
the end of iddat or revokes his expression of divorce, then the divorce will be reversed.
b) Talaq-I-Hasan:
This consists of three declarations made by the husband in three tuhrs, without any physical
reference to the wife, in any three tuhrs. The talaq form may be repealed after the first and second
declaration, but it becomes irrevocable after the last. In a non-menstrual woman, her
pronouncement can be rendered between successive pronouncements within one month or 30 days.
This kind of Talaq may be reversed before the third declaration at any time.
2) Talaq-Ul-Biddat:
This consists of three remarks made in a tuhr or a single statement made in a tuhr that
indicate an irrevocable desire to break the marital bond. It is a highly disapproved mode of divorce
as it only requires a single expression of divorce, after which it is irrevocable. This type of divorce
is not practised by Shia Muslims, whereas it is common in Sunni Muslims (Maudoodi, 2003). It
has further two divisions which are discussed below.
a)
Single Declaration:
If the husband makes a declaration using only a single declaration of divorce by saying
the words only once, then the divorce becomes irreversible, and the woman has to go into the iddat
period.
b)
Triple Declaration:
The husband can also divorce his wife by expressing his desire to divorce by saying it
three times in one sentence. The divorce becomes irreversible after this as well.
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This divorce method has been a source of controversy for centuries as many schools of
thought have differing opinions on its legitimacy due to the immediate termination of one's
marriage (Ahmad, 2009). It has been banned in a few countries such as India, which has a
punishment for the man who divorces his wife using this method. Stories of some Muslims
instantly divorcing their wives via mail, phone, and even text messages have heightened the debate.
Divorce in The Present Day:
The parents of the divorced wife do generally not allow her in the house of her husband
during the Iddah of a revocable divorce, not taking into account the Quranic teaching that the
couples should live under the same roof so that the marriage is more likely to resume (Maudoodi,
2003). The retention of duty and other property of the divorcee is an everyday occurrence in
society. The custody and support between separated spouses are the two most controversial issues.
These issues are usually brought to the courts. Popular activities contravene the Islamic teachings
completely (Omar, 2010). The Quranic orders distinctly and vigorously prohibit the abuse of
women concerning divorce. They do not permit men to hold women in a stable position or force
against evident incompatibility, but our society has not been able to uphold these teachings,
resulting in unfair treatment of females in such situations. For example, in the Islamic Republic of
Pakistan, the wife may dispute the deferred portion of the Mahr (if applicable), financial assistance
during the waiting period (Iddat), custody of the children and shares of any marital property for
financial claims after a divorce following the circumstances.
Nevertheless, many women are unaware of their rights due to the patriarchal background.
Families end up being ashamed of their daughters getting divorced due to the societal stereotype
that they are now unfit for remarriage, leading to even more stress and pressure on the woman. In
Saudi Arabia, a woman may seek a divorce only with or without her husband's consent (Smith,
1979). For Saudi women, obtaining a legal divorce is quite tricky and hectic due to its
discouragement. Many studies revealed several problems that divorced Saudi women face at
present about social, financial, mental and legal battles.
Rights Of Women To Dissolve Their Marriage:
There is a common misconception in Islam that only men have the authority to end their
marriages. However, In reality, Islam grants three ways to dissolve her marriage, two of which can
be through a mutual agreement such as Talaq-e-Mubarat or Khula (Iqbal, 1989). In Talaq-eMubarat, the desire for divorce is by both parties. The suggestion may also come from either side.
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Islam has given the woman her right to divorce through Talaq-e-Tafweed, where the Muslim
husband is free to assign to his wife or any other man his powers to declare divorce. He may
entirely or conditionally, temporarily or permanently delegate authority. This kind of delegated
divorce is maybe the most powerful tool a Muslim wife will use to get independence without court
interference. If the husband has unconsciously accused or accused his wife of adultery, this is the
assassination of a character, and the wife is entitled to apply for divorce on this issue (Iqbal, 1989).
Such a divorce mode is known as Lian. However, the only thing which will authorize women to
obtain the decree based on Lian is a voluntary and violent accusation of adultery by the husband
(Ouzgane, 1993).
A wife may unilaterally dissolve her marriage only if the husband or the marriage contract
has unconditionally given her the right to divorce. In these circumstances, a wife may sever her
marriage from the Family Courtesy through an application for Khula, often called dissolution of
marriage through judicial divorce, where this right is not delegated (Shaikh, 2020). The Holy
Quran mentions the Khula that every partner should understand that Allah's limit is difficult to
maintain and consequently separate during wedlock. In such a disquiet, the judge might order the
dissolution of marriage on paying compensation to the husband by the wife. Compared with men,
the right of women to pursue divorce is very restricted. There are two reasons why a wife is
permitted to accept a divorce under Sharia law:
If the husband has no relationship with her or longer than three months, or if the husband
fails to offer what she wants, such as food and shelter. Women are faced with legal and financial
challenges, whereas men will conveniently divorce their partners. In certain instances, for
example, women have to reimburse their dowry and marriage costs. In addition, if the girl is over
seven years of age, she will not get custody. If, in any case, child custody is given, she must give
it to the father when the child reaches seven. Islam has, although made divorce favorable to women
in specific ways (Arnez, 2009). Islam says that if the marriage ends in divorce under any
circumstances, then whatever the woman has earned during her marriage and before will remain
hers. At the same time, the husband's property will be divided according to the details in the
contract.
Moreover, the husband is also responsible for taking care of the woman's need after the
divorce. Mahr is a payable amount set in the marriage contract which the husband is entitled to
give to the wife after a divorce. In and after marriage, the Mahr is intended to give the bride
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financial stability. It is the Almighty Allah's divine order. The Mahr amount is not legally defined,
but moderation is highly advised in conjunction with the current social model (Ahammad, 2016).
The Almighty has given full right to the woman for Mahr in the Quran (Al-Qur'an, 60:10).
Conclusion:
Divorce was common before Islam was introduced to humanity, but after the laws set by
Islam, it gave a sense of understanding to both the spouses on how they should handle their
marriage and try to avoid such a separation. The power of divorce held by the husband was
unrestricted among pre-Islamic Arabs. They had the right to divorce their wives at any moment,
for whatever reason. They could also cancel their divorce and remarry whenever it was convenient
for them. They may accuse the wife of adultery at will and divorce her, and be spared from any
maintenance obligations or civil penalties. Islam gave women more rights and a sense of security
in their marriage by which they had every right to separate from their husband in numerous
circumstances. Hence, a woman has every right to dissolve her marriage through court and other
means that have been clearly and thoroughly defined in the Shariah Law. She has multiple methods
granted to her in Islam that will help her achieve her desired separation. Furthermore, even after
the divorce, she still has rights and is entitled to have all her needs fulfilled from her husband. In
the present day, our society has made women inferior to men, which has led to most women not
being aware of their fundamental rights which Islam has given them. Islamic marriage and divorce
laws are set for all times and ages. They are constant and do not require changes. It is evident,
though, that Islam separates the rights, duties and responsibilities, both of sex and states their status
on family affairs, taking into account the mentality of the two genders, but it is evident that their
position is equal aspect.
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References
Ahammad, S., 2016. A Critical Analysis of Dower (Mahr) in Islam. IOSR Journal of
Humanities and Social Science, 21(07), pp.86-91.
Ahmad, N., 2009. A Critical Appraisal of 'Triple Divorce' in Islamic Law. International
Journal of Law, Policy and the Family, 23(1), pp.53-61.
Al-Qur'an, 60:10, Surah 60, verse 10. Al-Mumtahana
Arnez, M., 2009. Empowering Women Through Islam: Fatayat NU Between Tradition
Change. Journal of Islamic Studies, 21(1), pp.59-88.
Hassan, H., 2002. Review: Islamic Law: Theory and Practice: Islamic Law: Theory and
Practice. Journal of Islamic Studies, 13(1), pp.50-51.
Ibn Majah 2018, Abu Dawud 2178, Bayhaqi, al-Sunan al-Kubra, Vol. 7. P. 322, Ibn Addi,
al-Kamil, Vol.6, p. 2453)
Iqbal, S., 1989. Woman and Islamic law. Lahore: Islamic Publications.
Islam, M., 2015. Divorce and Family Law. SSRN Electronic Journal,
Maudoodi, S., 2003. The laws of marriage and divorce in Islam. Safat, Kuwait: Islamic
Book Publishers.
Omar, S., 2010. Dissolution of Marriage: Practices, Laws and Islamic Teachings. SSRN
Electronic Journal, 4(1).
Ouzgane, L., 1993. Women and Islam. Postmodern Culture, 3(3).
Shaikh, A., 2020. Muslim Women's Rights Regarding Marriage and Divorce In the Context
of the Islam Religion. SSRN Electronic Journal, 4.
Smith, J., 1979. Women in Islam: Equity, Equality, and the Search for the Natural
Order. Journal of the American Academy of Religion, XLVII(4), pp.517-537.
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