Our Words
Allama Sayyid Abul A‘la Maududi (may Allah have mercy on him) presented the Islamic way of life to the modern world once again in its true form and character, a way that had been suppressed for several centuries. He provided clear guidance from Islamic Shariah for constructing the family, society, and state structures.
In the present book, he has presented Islam’s marital law. This is an important legal work. It is essential for every Muslim to become familiar with these injunctions.
The Sayyid Abul A‘la Maududi Research Academy, Dhaka, has undertaken the responsibility of presenting all of the Allama’s books to readers in the Bengali language. We thank Allah Most High for enabling us to present Maulana’s book Huquq al-Zawjayn to Bengali readers under the title The Rights of Husband and Wife.
May Allah Most High grant the Muslim Ummah, through this book, the ability to understand Islam’s marital law. Ameen.
Abdus Shahid Nasim
Director
Sayyid Abul A‘la Maududi
Research Academy, Dhaka.
Introduction
It was 1933–34. In Hyderabad, Bhopal, and British India, the question was raised with great urgency that effective efforts needed to be undertaken to remove the disruption arising in married life because of the defects in the prevailing law and to implement the injunctions of Islamic Shariah in the proper manner. Accordingly, with this matter in view, drafts of laws began to be prepared in various parts of India, and their echoes were heard for several years. At that time, I realized that the matter had many important aspects to which proper attention was not being paid. Therefore, in 1354 AH (1935 CE), I wrote a lengthy series of articles in the journal Tarjuman al-Qur’an under the title ********* (The Rights of Husband and Wife). In this series, while describing in detail the spirit and principles of Islam’s marital law, I also analyzed the guidance found in the Qur’an and Hadith for correcting and refining the mutual relationship between husband and wife. I also offered several suggestions for resolving the current legal problems of Muslims in the correct manner. This series was primarily written to draw the attention of the scholarly community. However, the discussion also came to include several matters that would benefit the general reader. In particular, those who have studied my book Purdah will feel the need to learn about the injunctions and prohibitions intended to strengthen the relationship between husband and wife, and will be able to understand the Islamic social system in its entirety. In view of this need, some additional essential matters have now been added to the series, and it is being published in book form.
28 Safar, 1362
5 March, 1943
Abul A‘la
Introduction to the Fourth Edition of the Urdu Book
Seventeen years ago, this book was published in the form of a series of articles. For the past ten years, it has been published in book form. Although it was clearly stated from the very first day that the suggestions offered in these articles for reforming the marital law within Hanafi fiqh were not issued as fatwas; rather, they were presented to the scholarly community as suggestions so that, if they considered them correct on the basis of Shariah and intellectual evidence, they might accordingly introduce changes into their fatwas as well. Despite this, from the first day until today, these suggestions have not even been seriously considered, and no one has taken the trouble to conduct an informed review of them. Of course, this has previously been used as a means of creating confusion about me, and it is still being used for that purpose.
While reviewing it again, I have made partial revisions in many places and added relatively stronger evidence to two of its discussions. Previously, they had not been presented with evidence of such strength. The two subjects are ila and the wali’s power of authority (the exercise of a guardian’s authority). In certain remaining matters, despite the allegations of opponents, I have felt no need for any change.
17 Ramadan, 1371
11 June, 1952
Abul A‘la
Table of Contents
Introduction
Marital Law’s Aims and Objectives
Safeguarding Moral Character and Chastity
Love and Sincerity
The Harmful Consequences of Establishing Marital Relations with Non-Muslims
Praise of Kufu
Law’s Principles: First Principle
Men’s Responsibilities and Duties
Causing Harm and Transgression
Failing to Administer Justice Among Wives
Men’s Rights
1. Safeguarding Confidential Matters
2. Obedience to the Husband
Men’s Powers
1. Advice, Good Conduct, and Discipline
2. Talaq
Second Principle
Talaq and Its Conditions
Khula
Hijri First Century’s Khula Examples
The Ruling on Khula
A Fundamental Error in the Issue of Khula
Khula Concerning the Qadi’s Authority
Shariah-based Judicial System
Some Fundamental Points Concerning the Shariah Judicial System
The First Condition for Adjudication
The Need for Ijtihad in the Judicial System
The Harmful Consequences of the Absence of a Shariah-based Judicial System in the Indian Subcontinent
First Step Toward Reform
The Need for a New Code of Law
Fundamental Guidance
Relevant Legal Issues
1. Apostasy of Either the Husband or Wife
2. Exercise of Authority over Adults
3. Coercion by Guardians
4. A Mature Woman’s Authority Subject to Necessary Conditions
5. Bridal Dower
6. The Wife’s Maintenance
7. Unlawful Abuse
8. Appointment of Arbitrators
9. The Harm of Annulment of Marriage (Faskh) upon Establishing Fault
10. Eunuchs, Castrated Men, and the Like
11. The Insane or Mad
12. The Case of a Missing Husband
13. The Maliki Madhhab’s Law Concerning a Missing Person
14. The Ruling When a Missing Person Returns
15. Li‘an
Pronouncing Three Talaqs at One Time
Final Words
Appendix–1
Appendix–2
The Law of Talaq and Separation in Western Society
Introduction
Two things are necessary for the social and cultural cohesion of any community. First: a comprehensive legal system created with regard for the character of its particular culture. Second: an institution capable of implementing it precisely in accordance with the outlook underlying the formulation of these provisions. Unfortunately, the Muslims of the Indian subcontinent are currently deprived of both these things. Undoubtedly, they possess in book form a body of laws and regulations that is fully compatible with Islamic culture and its nature, and that encompasses all aspects and divisions of social and cultural life. But this legal code is currently, in practice, suspended. In its place, a body of laws and regulations governs its cultural activities that is wholly opposed to Islam in many matters of society, civilization, and culture. Even if some part of it happens to conform to Islam in some respect, it remains incomplete.
The system of government under which Muslims currently live has, in practice, divided their social life into two parts. One branch of this system has imposed upon Muslims, along with the other peoples of the subcontinent, laws and regulations that are in no way compatible with Islamic society and culture. Under the second branch, this system of government has fundamentally acknowledged the Muslims’ right to have Islamic law applied to them. In practice, however, Islamic Shariah is not being correctly implemented even under this branch. The law implemented under this branch under the name “Muhammadan Law” differs considerably from the original Islamic Shariah, both in its form and in its spirit. Therefore, its application cannot properly be called the implementation of Islamic Shariah.
Among the various harms this deplorable situation has inflicted on the social and cultural life of Muslims, the most serious is that this system of government has turned seventy-five percent of our families into symbols of Hell and embittered, indeed ruined, the lives of a vast portion of our population.
The marital relationship between men and women is essentially the “foundation stone” of human society and culture. No person, whether male or female, can transgress the bounds of the laws formulated to strengthen the marital relationship. For from childhood through old age, this provision necessarily influences human life in one way or another at every stage. If one is a child, the relationship between one’s parents will influence one’s upbringing and education. If one is young, one will establish a relationship with a life partner. And if one is elderly, one’s children will keep one bound within the confines of this marital relationship. The peace of one’s heart and mind, and the comfort of one’s life, will depend to a considerable extent on good relations with one’s sons and daughters-in-law.
In short, the marital law is a body of law that is the most important and influential of all social laws. In Islam, recognizing the fundamental importance of this law, it was formulated on an exceptionally sound foundation, and Muslims received within their dīn an excellent and comprehensive code governing marital relations—one that may be regarded as superior in every respect to the marital laws of the world’s other religions. Unfortunately, this law too fell into the grasp of the ghost of “Muhammadan law” and was so distorted that scarcely the remotest resemblance remained between it and Islam’s original marital law.
The law currently in force in the marital affairs of Muslims in the name of Islamic Sharīʿah is neither sound, meaningful, nor complete. The defects and shortcomings of this law have had such a harmful effect on the social life of Muslims that it would be difficult to find in this subcontinent even one fortunate family that has not suffered as much harm from some other law. The destruction of life and property is only a minor matter. An even greater danger is that the evil effects of this black law have extinguished the sense of honor of countless Muslims and ruined their faith, character, and morality. It has brought a flood of obscenity and apostasy even into those homes that had been fortified strongholds of their dīn and culture. The evils resulting from defects in the laws and in the machinery enforcing them have been further aggravated for two reasons.
First: The lack of religious education and training
As a result, Muslims have become so unfamiliar with Islam’s marital law that even many highly educated people today know nothing of its ordinary legal questions. [For example, it is a result of ignorance that Muslims are generally acquainted with only one method of divorce: pronouncing three divorces at once. Even those who write divorce deeds write three divorces on such occasions. Yet this is an innovation in Islam and a grave sin, and it also creates serious legal complications. If people knew that the objective for which three divorces are pronounced could be achieved by pronouncing one divorce, and that in such a case the divorce could be revoked during the period of ʿiddah and a new marriage contracted after the ʿiddah ended, countless families could have been saved from destruction. Likewise, many servants of Allah would have been spared the sin of false evasions and violation of the law.—The author.] Far from being widely known, very few Muslims can even be found who know and understand its basic principles. Even those who sit in judicial seats and decide cases concerning marriage and divorce are deprived of even a basic knowledge of Islam’s marital law. This widespread ignorance has crippled Muslims to such an extent that, even personally, they cannot properly follow Islamic law in their marital relations.
Second: The influence of an un-Islamic social system
As a result, not only have countless customs, ideas, and superstitions opposed to the principles and spirit of Islam’s marital law entered Muslim marital relations, but the Islamic perspective on married life has also completely vanished from the minds of a large portion of them. In some places, Hindu ideas and attitudes have entered. Their effect is that the wife is regarded as a slave and the husband as a master or even a deity. Even if not as a matter of belief, in practice the marriage bond may never be severed. Divorce and khulʿ have become such matters of shame and disgrace that, when either is needed, it is rejected solely because it harms honor and reputation, although behind the veil many things worse than divorce and khulʿ continue to occur. To prevent divorce, the dower is set so high that the husband cannot even dare to divorce and is forced to keep his wife suspended during times of discord. Husband-worship has become part of wives’ pride and moral duty. Even in the most difficult circumstances, she cannot mention divorce or khulʿ for fear of social condemnation and reproach. Even if her husband dies, it has become her moral duty, as among Hindu women, to sit repeating her husband’s name. For a widow’s remarriage has become a cause of disgrace not only for her but for her entire lineage.
On the other hand, the condition of the new generation influenced by Western civilization is this: ********************—they recite this verse of the Qur’an in a very loud voice. [“Women have rights similar to the rights against them, according to what is equitable.”—Sūrah al-Baqarah 2:228] But when they reach the verse ********************, their voices suddenly fall [“Yet men have a degree over them.”—Sūrah al-Baqarah 2:228]; and when the verse ******************** comes before them, they do their utmost to find a way to expel it from the Noble Qur’an. [“Men are the maintainers of women.”—Sūrah al-Nisāʾ 4:34] They offer bizarre interpretations of this verse. Behind these absurd interpretations, they also say that they feel deeply embarrassed mentally that such verses exist in the sacred Book of their religion. The sole reason is that they have become alarmed by the design European civilization has drawn for establishing equality between women and men, and have lost all ability to comprehend the complete, firm, and rational principles of Islam upon which it has established its social system.
A variety of such causes have accumulated and led the family life of Muslims so far astray from how excellent it once was. The law and the machinery for enforcing it have now become completely incapable of untangling the complications created in various areas of their married life by the influence of foreign customs and culture. This incapacity is making those complications even more complicated. Through ignorance, some Muslims have fallen prey to the mistaken idea that these disasters have arisen because of defects in Islamic law. For this reason, emphasis is being placed on formulating a new legal code. Yet in reality Islam possesses a complete marital law in which the rights of husbands and wives have been clearly defined on the basis of justice and equity. It also provides a mechanism for lodging complaints and seeking redress when those rights are violated—whether by the wife or by the husband. No problem has been left unresolved there without a solution based on justice and equity.
Therefore, Muslims have no need whatsoever for any new code. What is truly needed is to present Islam’s marital law in its true form and strive to implement it properly. This is certainly not an easy task. The first responsibility and duty belongs to the community of scholars. They must abandon the path of rigid taqlīd and, keeping in view the needs and demands of the present age, reformulate Islam’s marital law in such a way that the current complexities of the problems in Muslim married life can be fully resolved. After that, the Muslim public must be trained in this matter. As a result, they will be able to purify their social system of all jāhilī customs and attitudes that they adopted from an anti-Islamic social order, understand the principles and spirit of Islamic law, and conduct all their affairs accordingly. In addition, there is a need for a disciplined and well-organized “judiciary” that itself believes in this law and whose judges have been trained in it intellectually and morally. They will enforce this law not under the inspiration of the world’s other legal systems, but in accordance with Islam’s own inspiration and spirit.
This book has been written with that need in view. In the following pages I wish to present a complete outline of Islam’s marital law. The purposes, principles, and provisions of this law will be described in their proper places. Where necessary, for explanation and analysis, I shall also quote examples of decisions by the Prophet ﷺ and his noble Companions, as well as the ijtihād-based opinions of the Imams of later ages. This will make it easier to derive the detailed legal questions. Finally, a number of proposals will be presented by which the complications in all matters of Muslim married life may be largely removed in accordance with the principles of Islamic Sharīʿah. Although establishing an Islamic state and introducing a Sharīʿah-based judicial system is the real and correct remedy for these complications, I nevertheless wish to indicate here certain matters through which, even under present conditions, the defects and shortcomings in matters relating to Muslim married life may comparatively be removed according to the proper rules of Sharīʿah. Thus those striving to solve these problems will adopt, instead of proceeding along a mistaken path, a path that will at least conform to Sharīʿah in some measure.
The Aim and Purpose of Marital Law
Before acquiring a broad knowledge of a law, it is essential to understand its purpose and aim. For the purpose and aim of a law are the most important matters. Rules are laid down to fulfill its purpose, and the commands and provisions of the law are stated under those rules. If someone enforces a command without understanding its purpose, there is a strong possibility that, in minor matters, they will issue rulings that cause the law’s very purpose to disappear. Similarly, whoever is unaware of the purpose of a law cannot follow it in accordance with its true spirit. Therefore, we shall first discuss in detail the purposes for which the marital law was formulated in Islam.
Safeguarding Moral Character and Chastity
The first purpose of Islam’s marital law is to safeguard character and morality. It has declared zinā unlawful and compelled the natural relationship between the two sexes of humanity to be brought under a legal framework that will protect their character from obscenity and shamelessness and society from disorder. That is why, in the Noble Qur’an, the word “nikāḥ” is expressed through the word iḥṣān (**********). The word ḥiṣn (********) means “fortress,” while iḥṣān means “being enclosed in a fortress.” Thus, the man who marries is a muḥṣin, meaning that he is constructing a fortress. And the woman who is married is a muḥṣinah, meaning that she takes refuge in the fortress constructed through marriage to protect herself and her character. This metaphor clearly shows that safeguarding character and chastity is the foremost purpose of Islam’s marriage system. The first task of marital law is to strengthen this fortress, built in the form of marriage to protect the precious jewel of character and chastity.
It is stated in the Noble Qur’an:
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“All women other than these forbidden women have been made lawful for you, provided that you seek them with your wealth, desiring marriage and not illicit sexual relations. So, for whatever enjoyment you have had from them, give them their dower as prescribed.”—Sūrah al-Nisāʾ 4:24
And concerning women it is stated:
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“So marry them with the permission of their guardians and give them their dowers fairly, so that they may remain chaste and not commit zinā openly or secretly.”—Sūrah al-Nisāʾ 4:25
Elsewhere it is stated:
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“Today all pure things have been made lawful for you. ……….. Also lawful for you are chaste believing women and chaste women from among those who were given the Book before you, provided that you marry them by giving them their dowers, seeking chastity, not illicit sexual relations or secret affairs.”—Sūrah al-Māʾidah 5:5
Reflecting on the words and meanings of these verses makes it clear that, in Islam’s view, iḥṣān—that is, “complete protection of character and chastity”—is the most important matter in the marital relationship between men and women. This is such a great purpose that any other purpose may be sacrificed for it, but it may not be sacrificed for any other purpose. The purpose of binding husband and wife in marriage is that they should satisfy their natural sexual desire while remaining within the limits prescribed by Allah. But if a marriage bond—that is, between husband and wife—reaches a state in which there is a fear that the limits prescribed by Allah Most High will be violated, then, rather than violating His other prescribed limits to preserve the outward bond of marriage, it is better to sever the marriage bond in order to protect those limits. That is why those who take an oath of abstinence from their wives are instructed not to remain firm upon their oath for more than four months. If the husband does not return to his wife even after four months have passed, then he is unwilling to have sexual relations with her and has no right to keep her tied to the marriage bond. For its inevitable consequence would be that the woman would be forced to violate the limits prescribed by Allah in order to fulfill her natural need. Allah’s law cannot tolerate this under any circumstances. Similarly, those who marry more than one woman are sternly instructed:
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“Do not turn completely toward one wife, leaving another suspended.”—Sūrah al-Nisāʾ 4:129
The purpose of this instruction too is that no wife should be compelled, in such circumstances, to violate the limits prescribed by Allah. In such a situation, it is better to break the outward bond of married life than to preserve it. The woman will then be free of the bond and able to marry another man of her choice. For this same purpose, the wife has also been given the power of khulʿ. For a woman to remain with a man whom she does not like at all or with whom she finds no mental peace places her in a situation in which there is a fear that the limits prescribed by Allah will be violated. Such a woman has been granted the right to obtain release from the marriage bond by returning to him all or some of the money she received from her husband as her dower.
These provisions of Islamic law will be discussed in detail. But by presenting the examples mentioned here, the purpose is to reveal this profound truth: Islamic law has given greater importance than anything else to safeguarding character and chastity, even though it strives to strengthen the marriage bond by every possible means. But wherever preserving this bond threatens character and chastity, it considers it necessary to undo the knot of marriage in order to protect this precious treasure. It is absolutely necessary to grasp this subtle point well in order to understand the provisions of the law that will be discussed आगे and to implement them according to the spirit of the law.
Love and Sincerity
The second important purpose is that the marital relationship between the two sexes of humanity should be established on the basis of love and sincerity. Through their joint efforts, they will be able to fulfill successfully all the aims connected with society and civilization, and enjoy peace, happiness, and comfort in family life. These things are greatly needed to give them strength to fulfill the great aims of their social life. Reflecting on the manner in which the Qur’an describes this purpose reveals that, in Islam’s view, the philosophy of married life is love and affection. Husband and wife were created so that each might find tranquility in the other.
Thus it is declared:
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“And among His signs is that He created for you spouses from among yourselves so that you may find tranquility in them, and He placed between you love and affection.”—Sūrah al-Rūm 30:21
It is stated elsewhere:
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“He is the One who created you from a single soul and made from it its mate, so that you may find peace and comfort in her.”
—Sūrah al-Aʿrāf 7:189
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“They are clothing for you, and you are clothing for them.”—Sūrah al-Baqarah 2:187
Here, husband and wife are called each other’s clothing. Clothing is what remains close to the human body, covers it, and protects it from harmful external things. By using this metaphor of clothing for husband and wife, the Noble Qur’an conveys that, personally, their marital relationship should resemble the relationship that exists between clothing and the body. Their hearts and souls should remain connected to each other. Each should protect the other’s privacy, and each should shield the other’s character and honor from the effects of disgrace. This is what love and sincerity require, and from the Islamic perspective this is the true life of the marital relationship. If this life is absent from a marriage, it is like a lifeless corpse.
The provisions established in Islam concerning marital relations keep this purpose in view. If husband and wife wish to live together, they should live with mutual understanding, harmony, and affection, wholeheartedly, fulfill each other’s legitimate rights, and treat one another generously. But if they are unable to do so, then separation is better than living together. For after love and sincerity have ended, the marital relationship becomes a corpse. If it is not buried, it will begin to give off an odor, and the entire atmosphere of family life will consequently become poisonous and foul-smelling. For this reason, the Noble Qur’an says:
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“If they reconcile and exercise caution against mutual transgression, then surely Allah is All-Forgiving, Most Merciful. If the couple separates, Allah will enrich both from His limitless unseen treasures.”—Sūrah al-Nisāʾ 4:129–130
Again, while describing the rulings in various places, it is emphasized:
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“Either retain her in a fair manner or release her with kindness.”—Sūrah al-Baqarah 2:229
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“Either retain them honorably or part with them fairly.”
—Sūrah al-Ṭalāq 65:2
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“Treat your wives kindly.”—Sūrah al-Nisāʾ 4:19
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“Either take them back honorably or release them honorably. Do not retain them merely to harm them and commit aggression against them. Whoever does that wrongs only himself.”—Sūrah al-Baqarah 2:231
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“Do not forget to show graciousness in your dealings with one another.”—Sūrah al-Baqarah 2:237
Where revocable divorce is described, the condition of a sincere intention is imposed for taking the wife back; that is, after pronouncing divorce twice and before pronouncing it a third time, the husband has the right to take his wife back. But the condition is that his intention must be to live with mutual understanding, harmony, affection, and sincerity—not to cause her pain or keep her suspended. The Noble Qur’an says:
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“Their husbands have the right to take them back as their wives during this period if they wish to reconcile.”—Sūrah al-Baqarah 2:228
The Harmful Effects of Marital Relations with Non-Muslims
For this reason, Muslim men and women have been forbidden to establish marital relations with all non-Muslim communities except the People of the Book. For, in their religion, outlook, society and culture, and way of life, they differ so greatly from Muslims that a genuine Muslim cannot unite with them in sincere love and wholehearted devotion.
Despite this incompatibility, if they enter into a relationship with one another, their marital relationship will not be recognized as a genuine social relationship; rather, it will be merely a sexual relationship. Love and sincerity will not develop within it, and even if they do, instead of benefiting Islamic society and culture and the Muslim concerned, they will become a source of harm.
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“Do not ever marry polytheistic women until they believe. Indeed, a believing slave girl is far better than a noble polytheistic woman, even though the latter may be more pleasing to you. And do not marry your women to polytheistic men until they believe. Indeed, a believing slave is far better than a noble polytheist, even though this young polytheist may be more pleasing to you.” —Surah al-Baqarah: 221
Although, in the case of the People of the Book, the law permits marrying their women, [Even so, marriage between Muslim women and men of the People of the Book remains prohibited. This is because women generally possess a comparatively greater capacity to be influenced and to adopt the ways of others. Therefore, because she lives with a non-Muslim husband in a non-Muslim family and society, there is a much greater fear that she will adopt her husband’s conduct and ideals. It is only rarely to be expected that she will influence them with her own ideals. Moreover, even if she does not adopt their ideals, it is certain that her relationship with them will remain merely a biological relationship. She will not establish any productive social relationship with the non-Muslim husband or his society. —Author.] at the level of the fundamental ideas of civilization and culture, there is some common ground between us and them. Nevertheless, Islam has not viewed this favorably. Ka’b ibn Malik (may Allah be pleased with him) wished to marry a woman from the People of the Book. The Prophet (peace and blessings of Allah be upon him) forbade him and explained the reason for the prohibition by saying:
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“She will not be able to make you virtuous.”
The significance of this is that, in such circumstances, love and affection—the very life of the marital relationship—cannot develop between them. Hudhayfah (may Allah be pleased with him) wished to marry a Jewish woman. Umar (may Allah be pleased with him) wrote to him, “Abandon this intention.” Ali (may Allah be pleased with him) and Ibn Umar (may Allah be pleased with him) explicitly called marrying women from the People of the Book makruh. Ali (may Allah be pleased with him) cited the following verse as evidence that it is makruh:
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“A believer cannot form a loving relationship with people who oppose Allah and His Messenger.” —Surah al-Mujadilah: 22
Therefore, if there is no love between the married couple, what benefit can such a marriage bring?
The Issue of Kufu
The Islamic Shariah itself requires Muslims to establish relationships between a woman and a man among whom an atmosphere of love and affection may reasonably be expected to develop in all respects. Where such hope does not exist, forming a marital relationship is makruh. For this reason, the Prophet (peace be upon him) instructed—or at least advised—that a prospective bride be seen before marriage.
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“When any one of you proposes marriage to a woman, he should look at her as far as possible, to see whether she possesses any quality that attracts him to marry her.”
For this reason, in matters of marriage, the Shariah considers it preferable to take kufu, or compatibility of rank, into account, and does not regard a marriage between unequal parties as suitable. Between a woman and a man who are equal or nearly equal in morality, religious devotion, family customs and traditions, social standing, and way of life, there is a strong hope that a relationship of love and sincerity will develop. From their marital relationship, it may also be hoped that their two families will gradually become united through such kinship. Conversely, in the case of those who lack this equality, there is great fear that they will be unable to unite in their family life and in their sincere and cordial relations. Even if the husband and wife become united, there is little hope that their two families will become united. This is the basic consideration regarding kufu in the Islamic Shariah.
The examples mentioned above prove that, after moral purity and the preservation of chastity, the second important objective of the Islamic marital system is love and affection between husband and wife. As long as there is hope that these will remain present in their marital relationship, Islamic law expends every effort to safeguard that relationship properly. But when this love and affection no longer remain, and in their place arise emotional emptiness, a stony disposition, hostility, inhumanity, neglect, and dissatisfaction, the law inclines toward dissolving the marital bond. This subtle point must be understood. For those who ignore it and establish its ramifications and branches within the fundamental principles of Islamic law commit such serious errors at every step that the very purpose of the law disappears.
The Fundamental Principles of the Law: The First Fundamental Principle
After understanding the purpose of the law, we must examine the principles on which the Islamic marital system has been founded. For unless these principles are properly understood, it will be difficult to apply the legal directives correctly in minor matters.
The first of the fundamental principles of the law is that, in married life, the man has been granted a position one degree higher than the woman. Many rules and subsidiary provisions of the law are derived from this. The Almighty Allah says:
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“Yet men have a degree of status over them.”
—Surah al-Baqarah: 228
The explanation of this higher status is found in the following verse:
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“Men are the managers of women because Allah has given one of them superiority over the other and because men spend their wealth. Thus righteous women remain devoted to their husbands and, in their absence, preserve all their rights by Allah’s grace.” —Surah al-Nisa: 34
This is not the place to discuss on what basis men have been given superiority over women or why they have been made the heads of the household. [**** Qawwam (Sustainer, Provider): head, guardian (Protector), custodian, manager. —Author.] That is not a subject of legal discussion; rather, it belongs to social philosophy. Therefore, within the bounds of the subject matter, we consider it sufficient here to explain that, in order to maintain order in family life, it is essential for one of the husband and wife to be the manager or head. But if both have equal status and equal authority, disorder is bound to arise. Among the nations that have practically attempted to establish equality between husband and wife, this disorder has in fact spread. Islam is a natural religion, for, taking human nature and disposition into account, it considers it necessary for one of the husband and wife to be made the head and manager and the other subordinate to him, and it has chosen for authority the community that is naturally born with this qualification. [For a detailed discussion of this subject, see my book Purdah. —Author.]
The Responsibilities and Duties of Men
Under the principles laid down for married life by Islamic law, the man has been given the status of head and manager. Because of this status, the following responsibilities have been assigned to him:
1. Mahr: The husband shall give the wife her mahr. For the right he acquires over his wife as a husband is in exchange for the mahr. The verse cited above also contains this explanation: although the man is naturally entitled to authority, in practice he attains this status in exchange for the money he spends in the form of mahr. Another verse explains it as follows:
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“And give women their mahr graciously and willingly.” —Surah al-Nisa: 4
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“All other women have been made lawful for you, apart from these prohibited women, so that you may seek them with your wealth, desiring to marry them and not to practice illicit sex. So, for the pleasure you have received from them, pay them their mahr according to the agreement.”
—Surah al-Nisa: 24
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“So marry female slaves with the permission of their owners and give them their fair mahr.” —Surah al-Nisa: 25
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“And lawful for you, in exchange for paying their mahr, are chaste believing women of noble standing and chaste women from among those who were given the Scripture before you—that is, the People of the Book.” —Surah al-Ma’idah: 5
Therefore, it is an essential duty of the man to pay the mahr agreed upon between the woman and the man at the time of marriage. If he refuses to pay the mahr according to the agreement, the wife has the right to keep herself separate from him. This is a responsibility imposed on the man from which there is no escape. The matter is different, however, if the wife grants him time, forgives it willingly in consideration of his poverty, or compassionately and gladly relinquishes her claim.
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“If they willingly remit any portion of their mahr, then consume it with satisfaction.” —Surah al-Nisa: 4
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“After the agreement regarding the mahr has been concluded, if you mutually agree to increase or decrease its amount, there is no blame in that.” —Surah al-Nisa: 24
2. The wife’s maintenance: The husband’s second duty is to provide for his wife’s maintenance. Islamic law has clearly defined the boundaries of the respective spheres of activity of husband and wife. The wife’s duty is to remain at home and discharge the responsibilities of family life. ************** The man’s duty is to earn a livelihood and procure the necessities of life for the members of the family. It is on the basis of this second matter that the husband has been given superiority over the wife by one degree, and this is included in the true meaning of authority. A person who maintains something and looks after it is called a qawwam. By virtue of this right, he possesses authority over that thing. Just as the obligation to pay mahr is established from the verses of the Qur’an ************ and *************, so too the obligation to provide maintenance is established. If the husband does not fulfill this responsibility, the law will compel him to do so. If he refuses or is unable to fulfill it, the law may dissolve their marriage. However, the amount of maintenance is not determined according to the wife’s wishes; rather, it depends on the husband’s means. The Qur’an has laid down a principle concerning this:
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“The wealthy man must provide maintenance according to his means, and the poor man according to his means.” —Surah al-Baqarah: 236
But it cannot be that the poor man is required to provide more than he can afford and the wealthy man is required to provide less than his means allow.
3. Oppression–and abuse must be refrained from: The man’s third duty is that he may not misuse the preference and authority granted to him over his wife. Wrongful conduct has various forms, such as:
‘Ila’: Without any legitimate reason [A ‘legitimate reason’ is the illness of the husband or wife, the husband’s being on a journey, or the occurrence of a situation in which he wishes to approach his wife but has no opportunity to do so. —Author.], deliberately refraining from satisfying the wife’s sexual desire solely for the purpose of punishing and tormenting her is called ila. Islamic law has set a maximum period of four months for this. It is the husband’s duty to resume marital relations with his wife within this period. Otherwise, once this period has elapsed, he will be compelled to leave his wife.
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“Those who swear not to approach their wives have four months to wait. If they return from this, then Allah is Forgiving and Merciful. But if they resolve to divorce, then Allah is All-Hearing, All-Knowing.” —Surah al-Baqarah: 226–227
Some jurists have made an oath a condition in this matter. That is, ila occurs only if the husband swears not to approach his wife, and only then does this ruling apply. But if, without making any oath, the husband remains separated from his wife for even ten years because he is displeased with her, the ruling of ila would not apply to him. I do not agree with this position. My arguments concerning this are given below:
First: If the Qur’an gives a directive concerning a particular circumstance and uses words or expressions that apply specifically to that circumstance, there is no obligation that the directive be applied only in that circumstance. For example, the wording used by the Qur’an concerning making a stepdaughter unlawful to her stepfather is:
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“Your stepdaughters who are in your care.” —Surah al-Nisa: 23
This wording gives the ruling that only those girls who came to their stepfather’s home with their mothers during childhood are unlawful to him. But no imam has said that this ruling is specifically limited to the circumstance mentioned. Rather, all the imams agree that a girl who was already grown when her mother married her stepfather, and who was not raised in his home even for one day, is also unlawful to him. Likewise, although the Qur’an uses the expression *************** (those who swear not to have intercourse with their wives), there is no obligation that the ruling stated for such persons apply only to those who have taken an oath.
Second: Regarding the derivation of juristic rulings (istinbat), nearly all the imams agree on this principle: if no explicit ruling is found concerning a matter, it may be analogically compared (qiyas) with an event concerning which a ruling is available. The condition is that the causes underlying the rulings in both cases must correspond. Now the question is: why has the Lawgiver (Allah) set a time limit for those who practice ila? And why has He said that if you do not return to your wife within the time limit, then divorce her? Can the reason be anything other than that abstaining from intercourse with one’s wife for more than four months is harmful to her, and that the Lawgiver seeks to prevent this harm? In the passage following this verse, Allah’s directive is:
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“Do not retain them merely to harm them, lest you commit injustice against them.” —Surah al-Baqarah: 231
And in Surah al-Nisa, the Lawgiver says:
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“So do not incline completely toward one wife, leaving another suspended.” —Surah al-Nisa: 129
These indications make it clear that the Lawgiver does not approve of keeping a wife bound in the marriage bond while leaving her separated and suspended in an uncertain state, or retaining her solely for the purpose of tormenting her. No other reason can be given for setting a period of four months. Now, if the same reason is found in the situation where the husband deliberately abandons intercourse with his wife without taking any oath, why should the aforementioned directive not apply to him? In the final analysis, what difference does taking or not taking an oath make regarding the fundamental issue of suffering harm? Can any sensible person imagine that a wife will be harmed when her husband abandons intercourse after taking an oath, but that she will not be harmed if he does not take an oath and does not approach her for his entire life?
Third: From the Islamic point of view, the most important objective of the marital system is the protection of morality and chastity. If a husband, displeased with one wife, takes another wife, he may easily be able to protect himself from wrongdoing and evil glances. But how will the wife whom he has permanently deprived of the pleasure of intercourse be able to protect her chastity and morality until he returns to her? Can it be expected of Allah, the All-Wise Lawgiver, that if the husband of such a wife has sworn to stay away from her, He will make arrangements to protect her morality, or leave her indefinitely exposed to the danger of moral disgrace?
For these reasons, in my view, a fatwa should be issued in accordance with the opinion of the jurists of the Maliki madhhab. They say that if a husband abstains from sexual intercourse with the intention of causing his wife distress, the ruling of ‘ila’ will also apply to him, even if he has not taken an oath. This is because the cause for which the Lawgiver imposed restrictions on ila is also found where intercourse is abandoned with that intention. [Ibn al-‘Arabi’s Ahkam al-Qur’an, vol. 1, p. 75, and Ibn Rushd’s Bidayat al-Mujtahid, vol. 3, p. 88.—The author.]
There is also disagreement among the jurists concerning the interpretation of the verse. The view of Uthman ibn Affan, Zayd ibn Thabit, Abdullah ibn Mas‘ud, and Abdullah ibn Abbas (may Allah be pleased with them) is that the expiry of the four-month period itself proves that the husband has resolved to divorce. Therefore, after this period has elapsed, the right of ‘ruju’, that is, taking her back, no longer remains. A report to this effect is also attributed to Ali and Ibn Umar (may Allah be pleased with them both). However, another report from the latter two, and a report from Aishah (may Allah be pleased with her), state that after the period has elapsed, the husband must be given notice: either take your wife back or divorce her. But when we reflect on the words of the verse, the first opinion appears correct. In the verse, Allah Most High has clearly set only four months as the period for the person who has made an ila oath. His right to take her back is likewise limited to this period. [There is disagreement as to whether the divorce in this case falls under one irrevocable divorce or one revocable divorce.—The author.] After the period ends, there is no option other than divorce (separation). If a person is granted the right to take her back after four months, it is as though he has extended the period of respite. This extension is plainly beyond the limit prescribed in the Book of Allah.
Causing Harm and Transgressing the Limits
If you no longer feel attracted to your wife, do not keep her. But the Qur’an has forbidden, in extremely stern terms, keeping her merely to torment and mistreat her, divorcing her repeatedly, and taking her back after two divorces but before the third. This is zulm.
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“Do not retain them with the intention of causing them harm and committing aggression against them. Whoever does this wrongs himself. Beware! Do not make Allah’s verses a subject of mockery.”—Surah al-Baqarah: 231 [To derive such unlawful and impermissible benefit from the wording of the law as contradicts its purpose and spirit is essentially tantamount to making a mockery of the law. The Qur’an has granted men the right to take their wives back after one or two divorces, solely so that, if reconciliation occurs between husband and wife during this period and some means of living together harmoniously can be found, no obstacle from the Shariah will stand in their way. But if someone abuses this opportunity by divorcing his wife, then taking her back before the end of her iddah, divorcing her again, and then taking her back as before, his purpose is merely to keep his wife in a state of uncertainty without reason. He neither keeps her in his home nor releases her so that the unfortunate woman may marry elsewhere. Such conduct is nothing but a mockery of Allah’s law. No true mu’min can have the courage to act in this way.—The author.]
The two terms ‘dirar’ (causing harm) and ‘ta‘addi’ (transgression) have broad meanings. Clearly, whoever keeps a wife with the intention of tormenting and mistreating her will torment her in every possible way. He will cause her physical and mental suffering. If he is base in character, he will beat and verbally abuse her; if he belongs to the upper class, he will adopt various methods of tormenting and humiliating her. All such methods are included within the terms causing harm and transgressing the limits, and in the view of the Qur’an all such methods are forbidden. If a husband treats his wife in this manner, he is deemed to be a transgressor of the lawful limits. In such circumstances, the wife has the right to seek legal assistance and free herself from this man.
Failing to Deal Justly with Wives
When a man has more than one wife, it is wrong for him to favor one and leave the other wife or wives suspended. The Qur’an has plainly declared this impermissible:
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“Do not incline wholly toward one wife, leaving the others as though suspended.”—Surah al-Nisa: 129
The Qur’an has permitted taking more than one wife only on the condition of fairness and justice. If a person does not deal justly, he has no right to benefit from this conditional permission. Even the verse that permits taking more than one wife clearly instructs that if you are unable to deal justly, then marry only one wife.
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“If you fear that you will not be able to deal justly and fairly, then marry only one, or those whom your right hands possess. That is more appropriate for avoiding injustice.”—Surah al-Nisa: 3
Imam al-Shafi‘i, may Allah have mercy on him, interpreted it to mean, ‘so that you do not have many children whose upbringing would become your responsibility.’ But this meaning contradicts the original dictionary meaning. In the dictionary, its meaning is ‘to incline.’ The poetry of Abu Talib:
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Here, the term is used in the sense of inclining. For this reason, the word means turning away from the path of injustice and fairness. Thus Ibn Abbas, Hasan, Mujahid, al-Sha‘bi, Ikrimah, Qatadah, and others interpreted it to mean ‘do not turn away from justice.’ Therefore, the verse cited from the Qur’an proves that whoever does not deal fairly between two or more wives, inclines toward one wife, and falls short in fulfilling the rights of the others is an oppressor. Therefore, he has no right to benefit from the ‘permission to keep more than one wife.’ In such circumstances, he should legally be compelled to keep only one wife, and the other wife or wives should likewise have the right to seek redress against him through the law.
Regarding fairness and justice, the Qur’an has explained in detail that, as far as heartfelt love is concerned, equality is neither possible for human beings to maintain nor are they accountable for it according to the Shariah.
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“You will never be able to deal equally between wives, even if you strive to do so with all your heart.”—Surah al-Nisa: 129
What they are required to maintain equality in, however, is financial support, good conduct, and equal treatment in married life.
The law may intervene in these three kinds of wrongful conduct by men. Moreover, many matters may arise, and do arise, in the mutual relationship between husband and wife that are contrary to love and affection. But the law has no opportunity to intervene in them. The Qur’an has given husbands general moral advice regarding these matters. In summary, a husband’s conduct toward his wife should be generous and loving. Living day and night amid quarrels and scandals is nothing but foolishness. If you are to keep your wife, then keep her straightforwardly; if you cannot get along, let her go amicably. These Qur’anic counsels cannot be enforced through force and authority. Nor is it possible for the law to intervene in every dispute between husband and wife. Yet the spirit of the law, as reflected in all this, appears to place most of the responsibility for justice, fairness, sincerity, and loving conduct upon the husband.
Men’s Rights
The responsibilities that must be fulfilledin consideration of which men have been granted authority have been discussed above. Let us now see what rights men possess by virtue of being heads of the household:
1. Safeguarding Confidential Matters Safeguarding :The Qur’an describes the first right men have over women in words for which no equivalent expression can be found in any other language. The Qur’an says:
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“Therefore, righteous women are devoted to their husbands and, in their absence, protect all that Allah has entrusted them to protect by His grace.”—Surah al-Nisa: 34
The phrase here means safeguarding all the things belonging to the husband that remain entrusted to the wife in his absence. This includes safeguarding his lineage, his semen, his honor and chastity, and his wealth—in short, everything is included. If the wife falls short in fulfilling any one of the rights mentioned above, the husband may exercise the powers and authority mentioned in the subsequent discussion.
2. The husband’s obedience:The husband’s second right is that his wife should obey him. ******** “Righteous, virtuous, and chaste wives serve their husbands”.
This is a general directive, whose explanation the Prophet, peace and blessings be upon him, provided by describing various matters. For example:
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“You have the right over them that they do not allow anyone whom you entirely dislike to enter your homes.”
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“Without her husband’s permission, she must not give any of the household’s belongings in charity. If she does so, the reward will go to the husband, while the wife will incur sin. Without her husband’s permission, a wife must not go outside the house.”
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“When her husband is present, a wife must not observe even a single day of voluntary fasting without his permission, except for the Ramadan fast.”
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“The best wife is one whose sight brings joy to your heart, who obeys you when you command her, and who, when you are absent, safeguards your wealth and all your rights over her.”
There is only one exception to this general command of obedience: if a husband orders his wife to disobey Allah, she may refuse to comply; indeed, she must refuse. For example, if he forbids her to perform an obligatory prayer or observe an obligatory fast, orders her to drink alcohol, tells her to abandon the veil prescribed by Shariah, or wants her to commit an abhorrent act, then it is not merely permissible for the wife to reject her husband’s order; it is obligatory. For it is not permissible to obey a created being in something that violates the law of the Creator. It is narrated in a hadith:
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“There is no obedience to a created being in disobedience to the Creator.”
Apart from these specific matters, obeying her husband is obligatory for a wife in all other circumstances; otherwise, she will be regarded as disobedient. In such a case, the husband may exercise his authority, as will be explained below.
The Powers of Men
Since Islamic law has made the man the head or director and assigned him responsibility for his wife’s dower, maintenance, support, and care, it has granted him certain powers and authorities over his wife that he needs to maintain order in family life, preserve the conduct, character, behavior, and social propriety of family members, and protect their rights from being forfeited. Islamic law has detailed these authorities and also defined the limits within which they may be exercised.
1. Advice, good conduct and discipline:If a wife does not obey her husband or diminishes his rights, then the husband’s first duty in this situation is to advise her. If she disobeys, the husband should adopt firmness according to the consequences of her conduct. If she still does not comply, he may also strike her lightly.
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“As for those women whose disobedience you fear, admonish them, leave them alone in their beds, and strike them. Then, if they obey you, do not seek a pretext to mistreat them.” —Surah al-Nisa: 34
In this verse, ***************** the permission to abstain from intercourse as a punishment is given through the words, “leave them in their beds.” However, the verse concerning ila mentioned earlier has established a natural time limit for keeping them in separate beds. This period is four months. If a wife is so disobedient and arrogant that her husband, displeased with her, has stopped sleeping with her, and she also knows that after remaining in this state for four months, her husband will divorce her in accordance with Allah Almighty’s command, yet she still does not desist from her disobedience, then abandoning her is the appropriate course. The limit of four months is sufficient for teaching manners and propriety. Punishing her for a longer period is unnecessary. The consequence of remaining steadfast in her disobedient behavior for so long is divorce. Despite knowing this, her failure to reform proves that she either has no capacity to learn manners and propriety, or at least is unable to live courteously with this husband. Consequently, there is a danger that the purpose for which a man is joined in marriage to a woman may be frustrated through this wife. In this situation, there is also a danger that the husband may turn to an unlawful way to satisfy his sexual desire. The wife too may fall into a moral crisis, and there is also a fear that where either the husband or the wife is so stubborn and arrogant, love, affection, and sincerity will not develop between them.
A statement has been transmitted from Imam Sufyan al-Thawri (may Allah have mercy on him) concerning the meaning of the verse ************. Presenting a common Arab proverb as evidence, he said that “hijrun” means binding. They say, ***************** “hijrun” refers to the rope with which a camel’s back and saddle are tied together. Thus, according to this interpretation, Allah Almighty’s statement means: if she—the wife—does not accept admonition, bind her within the house. But this meaning is far removed from the purpose of the Noble Qur’an. Through the word *********** the Qur’an has clearly indicated its intended meaning. *********** refers to the place where one sleeps. Therefore, interpreting the word “place” of sleeping as “binding” is entirely meaningless.
The second punishment, permission for which has been granted only in extremely difficult circumstances, is the punishment of beating. However, the Noble Prophet, peace and blessings be upon him, imposed the condition that it must not be severe beating.
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“If they—the wives—disobey any of your lawful commands, then strike them in such a manner that it is not excessively painful. Striking the face is not permitted, nor is abuse permitted.”
Men have been given the authority to impose these two types of punishment. However, according to the aforementioned instruction of the Prophet, peace and blessings be upon him, punishment may be imposed only when the disobedience concerns a legitimate right. No one may be coerced into obeying every command, whether right or wrong, and a wife may not be punished merely because she disobeys her husband. Moreover, there must be proportionality between the offense and the punishment. This too is one of the principles of Islamic law:
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“Whoever transgresses against you, then transgress against him to an equivalent extent.” —Surah al-Baqarah: 194
Inflicting a punishment greater than the transgression is zulm. In an offense for which advice alone is sufficient, to stop speaking; where stopping conversation is sufficient, to abandon cohabitation; and where separating the beds is sufficient, to beat her—all this will be considered zulm. For beating is the final punishment, which may be imposed only for serious and unbearable offenses. Even then, attention must be paid to the limits established by the Prophet, peace and blessings be upon him. If these limits are exceeded, the husband will have transgressed, and in this case the wife has the right to seek legal protection against him.
2. Talaq:The second authority given to man is to divorce a wife with whom he cannot live harmoniously. Since a man spends his own wealth to assume the rights of a husband, he has also been given the authority to relinquish all those rights. [Some people, imitating the West, want the authority to divorce to be taken from the husband and given to the court, as has been done in Turkey. But this is completely contrary to the Qur’an and Sunnah. In describing the rulings of divorce, the Qur’an consistently attributes the act of divorce to the husband: ************** and so forth. This clearly proves that the authority to divorce has been given only to the husband. The Qur’an also states plainly regarding the husband: *************** “The bond of marriage is in his hand.” —Surah al-Baqarah: 237
Who, then, has the authority to take this bond from his hand and place it in the judge’s hand? A hadith narrated from Abdullah ibn Abbas (ra) is recorded in Ibn Majah. A man came to the Noble Prophet (s) and complained, “My master married one of his slave women to me. Now he wants to separate her from me.” On this occasion, the Messenger of Allah (s) said in his sermon:
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“O people! What a strange thing it is that one of you marries his slave woman to his male slave and then wishes to separate the two, although the authority to divorce belongs only to husbands.”
Although this hadith is not strong in terms of its chain of transmission, its agreement with the Qur’anic injunction has strengthened it. Therefore, according to the words of Allah and His Messenger, it is never permissible to take the authority to divorce from the husband and place it in the hands of the courts. It is also an erroneous step from the standpoint of reason. What else could result from it except that, as in Europe, the shameful disputes and indecent incidents of family life would continue to be publicized before open courts in our society as well? —Author.]
This authority cannot be given to women. For if a woman possessed the right to divorce, she would become fearless about undermining the man’s rights. It is clear that a person who acquires something by spending his own money will make every effort to preserve it and will abandon it only when there is no alternative. But if one party spends the money and the other party receives the power to destroy what was acquired with it, little can be expected from the latter that, while exercising her power, she will consider the interests of the party who spent the money. Thus, placing the power of divorce in the hands of men is not merely the preservation of their legitimate right; it also embodies the wisdom that divorce will not be used excessively.
The Second Fundamental Principle
The second fundamental principle of Islamic matrimonial law is to strengthen the marital relationship as far as possible and to make every effort to keep the man and woman who have once been bound by this tie of kinship united with each other. But when no means of love and harmony remain between them, and remaining bound in marriage threatens to frustrate the very purpose of the law, they should not be forced to stay together despite their hatred and mutual discord. In such circumstances, opening the way for their separation will be beneficial for them and for society. In this matter, Islamic law has established such a sound balance between human nature and the preservation of social order and integrity that no other legal system in the world offers a comparable example. On the one hand, it seeks to strengthen the marital relationship. But it is not like Hinduism and Christianity. In those two religions, however painful married life may be for husband and wife, they cannot separate from each other under any circumstances. On the other hand, Islamic law opens the way to separation, but not as easily as in Russia, America, and most Western countries. In those countries, marital relationships have virtually no stability left. There, the weakness of conjugal relations is causing the entire order of family life to fall apart.
Under this principle, three avenues of separation have been provided: talaq, khula, and a judge’s decision.
Talaq and Its Conditions
In the terminology of the Shariah, talaq means “separation,” the right to which has been given to the man. A man is free to exercise this right. Whenever he wishes, he may relinquish the marital rights he acquired in exchange for the mahr. But the Shariah does not approve of talaq. The saying of the Prophet, peace and blessings be upon him:
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“Of all lawful things, talaq is the most hateful to Allah.”
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“Marry, but do not divorce, for Allah Most High does not like pleasure-seekers, male or female.”
For this reason, while giving men the freedom to exercise talaq, they have also been subjected to certain conditions. He may use this authority under those conditions only as a last resort.
The teaching of the Qur’an is that even if you dislike your wife, you should try as far as possible to live with her graciously and harmoniously.
The Almighty Allah says:
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“Live with them honorably. If you dislike them, it may be that you dislike something in which Allah has placed abundant good for you.” —Surah al-Nisa: 19
But if you truly cannot live harmoniously, you have the right to divorce her. However, it is not permissible to dismiss her with a single pronouncement. Pronounce one talaq at intervals of one month. By the end of the third month, you will have an opportunity to reflect. Perhaps a means of reconciliation will emerge, or a favorable change may appear in your wife’s conduct, or your own heart may change. If, despite reflection and understanding during this period, you remain resolved to leave your wife, then pronounce the final talaq in the third month, or allow the iddah to pass without taking her back (ruju). [The best course is to allow the period of iddah to pass without pronouncing the third talaq. In that case, if the husband and wife wish, the opportunity for them to marry each other again remains. But if the third talaq is pronounced, it becomes mughallazah, or final talaq. Thereafter, the former husband and wife cannot remarry without tahleel. Unfortunately, people are generally unaware of this ruling, and when they set out to divorce, they cast three talaqs at once. Later they regret it and go around trying to deceive the muftis. —Author.]
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“Divorce is twice; thereafter, either retain her in an honorable manner or release her graciously.” —Surah al-Baqarah: 229
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“Divorced women shall wait by themselves for three menstrual periods. … Their husbands have the right to take them back as wives during that period if they wish to restore the relationship.” —Surah al-Baqarah: 228
Along with this, there is also the instruction not to drive the wife out of the home during these three months, but to keep her with you. It is hoped that living together will lead to a way of restoring their sincere relationship.
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“When you divorce women, divorce them with the possibility of taking them back during their iddah. Count the period of iddah and fear Allah, your Lord. Do not drive them out of their homes during the iddah, nor should they leave, unless they openly commit an indecent act. These are Allah’s limits. Whoever transgresses Allah’s limits has wronged himself. You do not know; perhaps Allah will bring about a new situation after this. Then, when they approach the end of their prescribed iddah, either retain them honorably or separate from them in a proper manner.” —Surah al-Talaq: 1–2
Moreover, divorce during menstruation (hayd) has been prohibited, and the instruction has been given that if divorce must be pronounced, it should be pronounced during tuhr (purity). There are two reasons for this:
One: During menstruation, women generally become irritable and restless. At this time, certain changes occur in their physical system, causing them to say things involuntarily that they themselves would not like to say in their normal state. This is a subtle fact of medical science. Therefore, divorce has been prohibited on the basis of disputes occurring between husband and wife during menstruation.
Two: During this period, there is no physical relationship between husband and wife, although it is an important means of mutual attraction and love. It is not impossible for bitterness to arise between them at this time. Once this obstacle is removed, it is hoped that sexual attraction will again bring husband and wife together like milk and sugar, and that the gloom which had inclined the husband toward divorce will disappear.
For these reasons, the Prophet, peace and blessings be upon him, prohibited divorce during menstruation. It is reported in a hadith that Abdullah ibn Umar (ra) divorced his wife while she was menstruating. Umar (ra) informed the Prophet, peace and blessings be upon him, of this incident. He became very angry on hearing it and said: “Tell him to take his wife back, and when she becomes pure from menstruation, then divorce her.” Another hadith tells us that the Messenger of Allah, peace and blessings be upon him, rebuked Ibn Umar for this act and taught him the method of divorce as follows:
“Ibn Umar! You have adopted the wrong course. The correct course is to wait for tuhr. Then pronounce one talaq during each tuhr. When she becomes pure for the third time, either divorce her or retain her.” Ibn Umar (ra) said:
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“O Messenger of Allah! If I had pronounced three talaqs at once, would I still have retained the right of ruju?”
The Messenger of Allah (s) said:
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“No, she would have become separated, and it would have been a sinful act.”
Another point learned from this is that pronouncing three talaqs at the same time is a grave sin. Such an act fundamentally contradicts the cautious principles of the Islamic Shariah. It transgresses the limits set by Allah, whose observance is emphatically commanded in Surah al-Talaq. [As we have said earlier, the aim of the Shariah is to preserve as far as possible the marital relationship once it has been established between a woman and a man. If it must be severed, it should be broken only after every opportunity for reconciliation and settlement has been exhausted. Therefore, the demand of the Shariah is that anyone wishing to divorce should do so only after careful consideration, and that even after divorce the doors of reconciliation and reform should remain open for three months. But one who pronounces three talaqs at the same time closes all these opportunities with a single blow. —Author.]
It is reported concerning Umar ibn al-Khattab (ra) that whenever someone came to him after pronouncing three talaqs in a single sitting, he would inflict corporal punishment on him and separate the husband and wife.
Ibn Abbas (ra) was asked: A man has pronounced three talaqs upon his wife at the same time; what is the ruling? He said:
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“He has violated his Lord’s command, and his wife has become separated from him.”
Ali (ra) said:
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“If people observed the proper limits of talaq, no one would have to regret or feel ashamed after divorcing his wife.”
After placing so many obstacles in the path of talaq, the final and most difficult obstacle is this: a man who gives his wife mughallazah talaq [Talaq mughallazah, meaning three talaqs. Thereafter, this woman cannot again enter into a marriage bond with her former husband until she marries another man and is divorced from him. —Author.] cannot marry her again until she marries another man, and that man, after consummating the marriage, voluntarily divorces her. The Almighty Allah says:
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“Then, if the husband divorces her for the third time, she will not be lawful for him thereafter until she marries another man and he voluntarily divorces her. If they then think that they can maintain Allah’s limits, there is no blame upon them for remarrying.” —Surah al-Baqarah: 230
This is such a stringent condition that it will force a man to think a hundred times before pronouncing the third talaq upon his wife. Until he has carefully reflected and reached the final decision that living with this wife is no longer possible, he will not even mention the third talaq.
Some people resort to tricks to evade this condition. For example, after a man gives his wife three talaqs, he may regret it and wish to marry her again. In such a situation, he arranges for her to marry another man. Then, by giving that man some money, he obtains a divorce from him before the latter has secluded himself with the wife. But the Prophet, peace and blessings be upon him, explained in detail that mere marriage is not sufficient for tahleel, that is, making her lawful for the former husband. She will not become lawful for the first husband until the second husband has enjoyed sexual relations with her. The Messenger of Allah (s) said:
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“She will not become lawful for the first husband until the second husband has tasted her honey and she has tasted the honey of the second husband—that is, sexual pleasure.”
The Messenger of Allah, peace and blessings be upon him, cursed both the man who marries off his divorced wife to another solely to make her lawful for himself, and the man who marries her for that purpose.
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He compared such a man to ********, that is, a hired bull. In reality, there is no difference between such a marriage and fornication.
One must be astonished at those scholars who issue fatwas permitting people to engage in this manifestly unlawful, extremely reprehensible, and shameful deception.
Khula
Just as the Islamic Shariah has given a man the right to divorce a wife whom he dislikes or with whom it is in no way possible for him to live, it has likewise given a wife the right to obtain khula from a man whom she dislikes or with whom it is in no way possible for her to live. In this matter, the Shariah’s instruction has two aspects: one, the moral aspect; two, the legal aspect.
The moral aspect is that, whether man or woman, each should use the power of talaq or khula only as a last resort when no other option remains. Talaq and khula must not be turned into toys merely for the pursuit of sexual pleasure. The instructions of the Prophet, peace and blessings be upon him, are recorded in the books of hadith:
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“Indeed, Allah Most High does not like pleasure-seekers, male or female, at all.”
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“Allah has cursed those who pursue unrestricted sexual relations by repeatedly resorting to divorce.”
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“Upon the woman who seeks khula without any fault or excess on the part of her husband are the curses of Allah, the angels, and humankind. Women who turn khula into a toy are hypocrites.”
But the law—which is concerned with determining individual rights—does not discuss the moral aspect. Just as it gives the man the right to talaq by virtue of his being a husband, it gives the woman the right to khula by virtue of her being a wife, so that both may, when necessary, obtain release from the marriage bond, and neither party is left in a condition where hatred has accumulated in the heart, the purpose of marriage is not being fulfilled, yet the marital relationship has become a disaster. One remains imprisoned with the other merely because there is no means of escaping this prison.
The question now is: who among husband and wife may abuse his or her authority? In this matter, the law imposes reasonable restrictions as far as possible. But whether authority is used justly or unjustly depends largely on the user’s own discernment, honesty, justice, fairness, and fear of Allah. No one besides that person and Allah can judge whether the authority is being used merely for unrestricted sexual relations or whether there is a legitimate need to exercise it. After granting a person the right due to him or her, the law can impose only the necessary restrictions to prevent its unjust use.
You have seen in the discussion of talaq that, along with giving a man the right to separate from his wife, various conditions have been imposed upon him. For example, he must bear the financial loss of whatever he gave his wife as mahr; he may not divorce during menstruation; he must pronounce one talaq in each tuhr; and he must keep his wife in his home during the iddah. Then, after pronouncing three talaqs, he cannot marry this wife again without tahleel. Similarly, along with giving the wife the right to khula, certain conditions have been imposed upon her, all of which are fully described in this concise verse of the Qur’an:
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“It is not lawful for you to take back anything of what you have given your wives, even a little, at the time of divorce. But if both fear that they cannot maintain Allah’s limits, then it is a different matter. If you fear that the husband and wife cannot live while observing Allah’s limits, there is no blame upon the wife if she offers compensation to secure release from the marriage bond.” —Surah al-Baqarah: 229
The following legal provisions are derived from this verse:
One. Khula should be sought when there is fear that Allah’s limits will be transgressed. The words “there is no blame upon them” indicate that although khula is an undesirable thing, just as talaq is undesirable, there is no blame in seeking khula when there is fear that Allah’s prescribed limits will be violated.
Two. When a wife wishes to be released from the marriage bond, she too must accept financial loss, just as a man must accept financial loss when he voluntarily divorces. If a man voluntarily divorces his wife, he may not take back even a small portion of the money given to her as mahr. If the wife seeks separation, she may return part or all of the money she received from her husband as mahr and thereby separate from him.
Three.. ********** That is, for obtaining release by offering compensation, the will of the one offering the compensation alone is not sufficient; rather, the settlement of the matter takes place only when the one receiving the compensation also consents. In other words, a wife cannot separate herself merely by offering a certain amount of money; rather, in exchange for accepting the money she offers, the husband’s pronouncement of divorce is essential for the separation.
Four..For khula, it is sufficient that the wife offer all or part of her mahr and demand separation, and that the husband accept it and divorce her. The phrase “fa-la junaha alayhima fimaftadat bihi” shows that khula is completed with the consent of both parties. Through this verse, the view of those who make a court’s decision a condition for completing khula is refuted. Islam does not at all approve of taking to court matters that can be settled within the family.
Five..If the wife offers fidyah (compensation for release) and the husband does not accept it, then in this situation the wife has the right to seek the court’s protection. This is clearly known from the aforementioned verse, “fa-in khiftum alla yuqima hudud Allah.” In this verse, by saying “khiftum,” the Muslims’ ulil amr, or government officials, are being addressed. Since the foremost duty of rulers or governors is to safeguard the limits prescribed by Allah Almighty, when there is fear that Allah’s limits may be violated, it is their duty to ensure that she is granted the rights Allah Almighty has given her, in order to protect those limits.
This is the brief directive. It contains no detailed explanation of the circumstances in which the fear of Allah’s limits being violated is established, how justice is to be observed in determining the amount of fidyah, or what course a judge should adopt if the wife is prepared to offer fidyah but the husband refuses to accept it. We will find detailed answers to these questions in the accounts of the khula cases that came before the Noble Prophet (peace be upon him) and the Rightly Guided Caliphs.
Examples of Khula in the First Hijri Century
The most famous case of khula is that of Thabit ibn Qays. His wives obtained khula from him. Various parts of the detailed account of this case are narrated in the hadiths. When these parts are brought together, it becomes known that two of Thabit’s wives obtained khula from him. One was Jamilah bint Ubayy ibn Salul (the sister of Abdullah ibn Ubayy). [Some have mentioned Zaynab bint Abdullah ibn Ubayy. However, according to the well-known view, her name was Jamilah, and she was not the daughter of Abdullah ibn Ubayy but his sister.—Author.] Her story is that she did not like Thabit’s appearance. She sought judgment from the Prophet (peace and blessings be upon him) regarding khula and presented her complaint in the following words:
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“O Messenger of Allah! Nothing can ever bring my head and his head together. When I lifted my veil and looked, I saw him approaching from the front with several people. But I found him darker than all of them, the shortest, and the ugliest in appearance.”—Ibn Jarir
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“By Allah! I do not dislike him because of any defect in his religiousness or morality; rather, his ugly appearance is what I dislike.”—Ibn Jarir
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“By Allah! If I did not fear Allah, then whenever he came to me I would spit in his face.”—Ibn Jarir
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“O Messenger of Allah! You can see how beautiful and fair I am. And Thabit is an ugly man.”—Abd al-Razzaq, cited in Fath al-Bari.
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“I have no complaint regarding his religiousness or morality. But I fear committing kufr in Islam.”—Bukhari [The meaning of “fear of kufr in Islam” is this: despite my hatred and dislike, if I live with him, I fear that I will be unable to fulfill the commands Allah and His Messenger have given concerning obedience to, faithfulness toward, and preservation of chastity for one’s husband. This is the perspective of a believing woman who considers violating the limits set by Allah to be kufr. Yet the perspective of the religious scholars of the present age is that even if one performs none of the prayer, fasting, pilgrimage, or zakat, and openly commits sinful and reprehensible acts, they remain determined to call this a state of faith and continue giving such people the good news of Paradise. And they call anyone who describes this as contrary to faith a “Kharijite.”—Author.]
The Prophet (peace and blessings be upon him) heard her complaint and then said:
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“Will you return the garden that he gave you?”
She replied, “O Messenger of Allah! I am willing to return it; indeed, if he asks for more, I will give that too.”
The Prophet (peace be upon him) said:
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“Nothing more; just return his garden to him.”
Then he instructed Thabit:
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“Take back your garden and divorce her once.”
Thabit ibn Qays had another wife, Habibah bint Sahl al-Ansariyyah. Imam Malik and Imam Abu Dawud narrated her story as follows: One day, very early in the morning, as the Messenger of Allah (peace and blessings be upon him) came out of his house, he saw Habibah standing at the door. He asked, “What is the matter?” She replied:
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“There can be no harmony between Thabit ibn Qays and me.”
When Thabit arrived, the Prophet (peace be upon him) said, “Look, this is Habibah bint Sahl.” Thabit then stated whatever he had to say. Habibah said, “O Messenger of Allah! Everything Thabit gave me is still with me.” The Prophet (peace be upon him) instructed Thabit:
“Take all these things back and send her away.”
Some narrations contain ************, while some hadiths contain ************. Both words have the same meaning. Abu Dawud and Ibn Jarir narrated this incident from Aishah as follows:
Hazrat Thabit had beaten Habibah so severely that her bones were broken. Habibah came to the Prophet (peace be upon him) and complained. He ordered Thabit: “Khudh ba‘da malihi wa fariqqha”—“Take some of his property and separate her from him.”
However, from the wording Ibn Majah narrated concerning Habibah, it is known that her complaint against Thabit was not about beating, but about his ugly appearance. Thus, she too made the same complaint. In the hadith, Jamilah is reported to have said, “Had I not feared Allah, I would have spat in Thabit’s face.”
A case involving a woman and a man was brought before Hazrat Umar, may Allah be pleased with him. He advised the woman and urged her to live with her husband. The woman did not accept his advice, so he confined her in a room filled with dirt and refuse. After keeping her imprisoned for three days, he brought her out and asked, “How are you now?” She said, “By Allah, I have had some peace during these nights.” Hearing this, Hazrat Umar instructed her husband:
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“I pity you; even in exchange for a small ornament like an earring, grant her khula.” [Kashful Ghummah, volume 2.]
Rubayyi bint Mu‘awwidh ibn Afra wanted to obtain khula from her husband in exchange for all her possessions. But her husband did not agree. The case was brought before Hazrat Uthman, may Allah be pleased with him. He instructed the husband:
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“Take even the ribbon with which she ties her hair, and grant her khula.” [Abd al-Razzaq, cited in Fath al-Bari.]
Ruling on Khula
The following matters are known from these hadiths:
1. ********************* The complaints narrated from the wives of Thabit ibn Qays are the tafsir of this verse. The Prophet (peace and blessings be upon him) considered their complaint sufficient for khula: their husbands’ appearances were extremely ugly and they did not like them at all. He did not lecture them on the philosophy of beauty, because his concern was the purpose of the Shariah. When it became clear that hatred and dissatisfaction toward their husbands had accumulated in these women’s hearts, he granted their requests. For compelling a woman and a man to remain forcibly bound to each other while hatred and dissatisfaction exist would be more seriously harmful to religion, conduct and morality, and society and civilization than divorce and khula. This risks defeating the purpose of the Shariah. Thus, from the Prophet’s practice, the following law is derived: to implement the ruling of khula, it is sufficient to establish only that the wife intensely dislikes her husband and is unwilling to live with him.
2.It is established from the conduct of Hazrat Umar, may Allah be pleased with him, that a judge may adopt any appropriate method to investigate the wife’s hatred and dissatisfaction, so that no room for doubt remains and it becomes certain that there is no longer any hope of reconciliation between them.
3.It is established from the conduct of Hazrat Umar, may Allah be pleased with him, that it is not necessary to investigate the cause of the wife’s hatred and dissatisfaction. This is reasonable: there may be many reasons for her aversion to her husband that cannot be disclosed before anyone else. The causes of her disgust may also be of such a nature that, if described, the listener might not consider them sufficient to justify hatred. But she faces these causes day and night, and they are enough to create hatred in her heart. Therefore, the qadi’s responsibility is only to verify whether hatred toward the husband has accumulated in the wife’s heart. It is not his responsibility to decide whether the reasons she has stated are sufficient to create hatred.
4.A judge may certainly try, through advice, to persuade the wife to remain with her husband, but he cannot compel her against her will. Khula is her personal right, which Allah Almighty has granted her. If she expresses fear that, by living with this husband, she will be unable to observe the limits prescribed by Allah, no one has the right to tell her: “You may violate Allah’s prescribed limits if you wish, but you must live with this man.”
5. In a khula case, there is no question of the judge investigating whether the wife is seeking khula on the basis of a legitimate need or merely seeking separation because she is driven by desire. For this reason, when the Prophet (peace be upon him) and the Rightly Guided Caliphs, acting as judges, recorded the details of khula cases, they completely disregarded this matter. The reason is:
First, no judge can properly investigate this complaint.
Second, a woman’s right to khula is the counterpart of a man’s right to divorce. If the question of unrestricted sexual conduct is raised, there is an equal danger in both cases. Yet the law has not made the exercise of a man’s right to divorce conditional upon the danger of unrestricted sexual conduct. Therefore, from the standpoint of legal rights, a wife’s right to khula should not be made conditional upon any moral requirement either.
Third, the fact is that a woman seeking khula cannot be in one of only two states. Either she has a realistic need to seek khula, or she is seeking khula in order to engage in unrestricted sexual conduct. In the first case, rejecting her request for khula would be unjust. In the second case, if she is not given the power to obtain khula, the important purposes of the Shariah will be thwarted. A licentious woman will continue searching for some means of satisfying her sexual desire. If you do not allow her to do so by lawful means, she will fulfill the demands of her depraved nature through unlawful means, which will be an even more reprehensible act. A woman changing five hundred husbands in succession is better than committing zina once while remaining under one husband.
6. If the wife seeks khula and the husband does not agree, the judge shall order him to divorce her. All the narrations of the aforementioned hadiths state that the Messenger of Allah (peace and blessings be upon him) and the Rightly Guided Caliphs, in such cases, ordered the husband to accept property or cash and divorce the wife. In any event, this is also the meaning of the judge’s order, and the husband is obliged to comply. Even if he does not comply, the qadi may imprison him. In the Shariah, the status of a qadi is not merely that of an adviser whose order is treated as advice and the person against whom judgment has been given is free to accept or reject it. If a judge had such a status, keeping the doors of his court open to people would have been entirely pointless.
7. According to the explanation of the Noble Prophet Muhammad (peace be upon him), the result of khula is “one irrevocable divorce.” That is, once the ruling of khula takes effect, the husband has no right to take her back during her iddah. If the right of taking her back remained, the very purpose of khula would be defeated. Moreover, the money the wife gave him was given to obtain release from the marriage bond. If the husband accepts it but does not release her, that would be deception and betrayal of trust. The Shariah does not permit this in any way. Yes, if the woman voluntarily wishes to marry him again, she may do so, because this is not a talaq mughallazah. After this latter type of divorce, tahlil is a condition for a second marriage.
8.Allah Almighty has imposed no condition regarding the compensation for khula. Khula may take place in exchange for whatever amount of property the husband and wife agree upon. However, the Prophet (peace and blessings be upon him) disliked accepting an amount greater than the mahr given by the husband in exchange for khula. He said:
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“At the time of khula, no man may accept more than the amount of mahr he gave his wife.”
Hazrat Ali, may Allah be pleased with him, explicitly called this makruh. The mujtahid Imams are unanimous on this matter. However, if the wife seeks khula because of the husband’s oppression and abuse, then accepting compensation is fundamentally makruh for the husband. It is stated in the Hidayah:
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“If oppression and abuse have come from the husband, it is makruh for him to accept compensation from the wife at the time of khula.”
In light of this explanation and analysis, the following principles may be formulated for the subject of khula under the fundamental principles of the Shariah:
a. If a wife seeking khula can prove her husband’s oppression, or present a reason that appears reasonable to the qadi, the qadi shall arrange khula for her in exchange for her returning a small portion or half of the mahr.
b. If she presents neither the husband’s abuse nor any acceptable reason, she shall be required to return the entire mahr or a substantial portion of it.
c. But if the qadi observes signs of unrestricted sexual conduct in the woman’s demeanor and behavior, he may, as a punishment, compel her to pay an amount greater than the mahr.
A Fundamental Error in the Matter of Khula
The foregoing discussion of khula makes this practical truth unmistakably clear: Islamic law has established a remarkably sound balance between the rights of women and men. It is also our own error that we have effectively snatched the right of khula from our women and, contrary to the principles of the Shariah, made the granting or withholding of khula entirely dependent on the man’s will. The repeated curtailment of women’s rights that has resulted and continues to result from this is in no way attributable to the injunctions of Allah and His Messenger. Even now, if this right of women is established, many of the problems arising in our married lives will be resolved. The very avenues through which problems arise will be closed.
The mistaken notion that “the Lawgiver has left the matter of khula entirely between husband and wife, and that it lies beyond the Qadi’s jurisdiction to intervene in it” has effectively snatched the right of khula completely from women. The result is that granting or withholding khula has become entirely dependent on the man’s whim. If a wife wishes to obtain khula but her husband refuses to grant it out of mischief, deceit, or some petty self-interest, then no means remains for the wife. But this is wholly contrary to the intention of the Lawgiver. It was never the intention of the Legislator of the Shariah to make one party connected with marriage completely helpless and place all authority in the hands of the other party. Had this been so, the excellent moral, social, and cultural purposes that He attached to the marital relationship would have vanished.
As discussed earlier, the foundation of marital law in the Islamic Shariah rests on the principle that, so long as the marital relationship between a man and a woman can continue with purity of morals, love, and sincerity, it is essential to improve and strengthen it, while attempting to sever it or cause it to be severed is severely reprehensible. But when this relationship becomes a cause of moral ruin for both or for either one of them, or when hatred and hostility replace love and sincerity within it, then dissolving the marriage becomes necessary, and maintaining it is wholly contrary to the purpose of the Shariah. Under this principle, the Shariah has given each of the two parties connected with marriage a legal weapon that they can readily use when the marital bond becomes unbearable. The man’s legal weapon is called talaq. He has been given independent authority to use it. In contrast, the wife’s legal instrument is called khula. The procedure for using it is that, when she wishes to sever the marital bond, she must first demand this from her husband. If he refuses to fulfill her demand, she will seek the Qadi’s assistance.
This is how balance can be maintained between the rights of husband and wife. Allah and His Messenger actually established this balance. But it has been destroyed by excluding the Qadi’s power to hear the matter. For the legal instrument given to the woman thereby became completely useless, and the law was effectively distorted into such a form that, if a man fears that Allah’s prescribed limits may be violated in the marital relationship, or if the relationship becomes unbearable for him, he can sever it. But if the same fear arises in the case of the wife, or the marital relationship becomes unbearable for her, she has no means in her hands of severing it. Until the man sets her free, she is compelled to remain bound by this marital bond, even if it becomes impossible for her to remain within the limits prescribed by Allah and even if the Shariah purpose of the marriage is entirely frustrated. Is there anyone so audacious as to accuse the Shariah of Allah and His Messenger of such manifest injustice and inequity? If anyone has the audacity to do so, he must produce proof from the Book and Sunnah—not the opinions of jurists—that Allah and His Messenger gave the Qadi no right or authority in the matter of khula.
The Qadi’s jurisdiction in the matter of khula
Read again the verse of the Noble Qur’an in which the rules of khula have been described:
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“If you fear that they (the husband and wife) will not be able to maintain Allah’s limits, then there is no blame upon them if she obtains separation by offering some fidya (compensation).”—Surah al-Baqarah: 229
In this verse, the husband and wife themselves are mentioned with a third-person dual-number verb. Therefore, they are not being addressed by the words “if you fear.” It must consequently be accepted that the people vested with authority over all the affairs of Muslims (ulil amr) are being addressed here, and the purpose of Allah’s command is that, if khula cannot be completed by mutual agreement of the husband and wife, the matter must be referred to the ulil amr.
Support for this is also found in the hadiths we have cited above. The fact that women came to the Noble Prophet (peace be upon him) and the Rightly Guided Caliphs to demand khula, and that their complaints were heard, itself proves that, if mutual agreement between husband and wife regarding khula is not possible, the woman will seek the Qadi’s protection. Now, if the Qadi in reality has the power only to hear the complaint, but lacks the authority to compel the man to submit to his decision when he refuses to agree, then designating the Qadi as a center of justice and equity is entirely pointless. For the result of going to him would be exactly the same as not going to him. But does the wording of the hadith prove that the Qadi has no jurisdiction in this matter? All the decisions of the Noble Prophet (peace be upon him) and the Rightly Guided Caliphs cited above contain imperative statements.
For example, “divorce her,” “separate her from him,” and “let her go her way”; or it is stated that he (the Messenger) instructed the man, “Do this.” The wording of the report cited by Ibn Jarir from Ibn Abbas is: “fa-farraqa baynahuma” (“Then he separated the two of them”). The account of Jamila bint Ubayy ibn Salul herself also contains these words. Even after this, there is no room to say, “The Qadi has no authority to issue a ruling in the matter of khula.”
The question now is: if the husband regards the Qadi’s ruling merely as advice and refuses to comply, can the Qadi compel him by force to obey his ruling? The answer is that we find no example from the practice of the Prophet (peace and blessings be upon him) and the Rightly Guided Caliphs in which he gave a decision and anyone had the audacity not to bow before it. In this case, however, we can draw an analogy (qiyas) from a decision of Ali (may Allah be pleased with him). He said to an insolent husband:
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“Just as the woman has accepted the judge’s decision, you will not be set free until you accept it.”
If he has the power to imprison a husband for refusing to accept the judges’ decisions, then he certainly has the power to use force against him to make him accept his own decision. There is no reason why, among all matters in the world, an exception should be made to the Qadi’s authority only in the matter of khula. In the books of fiqh, there are many detailed legal questions in which the Qadi has been given the authority that, if a husband does not divorce his wife at his instruction, he himself will sever the relationship between the two. Then why should he not have such authority in the case of khula?
The discussion that follows will make even clearer the truth that, in the case of impotent, emasculated, castrated, leprous, and insane husbands, the great jurists have laid down various rules; similarly, in the case of girls reaching puberty, they have established the right to exercise their own choice (khiyar al-bulugh), and in other legal questions they have determined laws on the basis of ijtihad. In view of this, it is extremely necessary that the Qadi possess full authority to grant women khula. Otherwise, women who fall into such miserable conditions will have no option except one of two paths: either they will spend their entire lives in misery, or they will commit suicide, or, driven by their biological urges, fall into adultery, or become apostates (murtadds) and attempt to free themselves from the marital bond. To clarify the subject under discussion, I think it sufficient to present an example.
The rule of fiqh concerning a person unable to have intercourse or lacking virility is that he will be given one year to seek treatment. If, after receiving treatment, he is able to have intercourse even once, even if the intercourse is incomplete, [
“It is stated in the Radd al-Muhtar that if the penis of a man has become flaccid, and he is able to insert its tip into the woman’s organ even once, then he is not impotent or lacking virility. If his penis has been severed and he is able to insert the remaining part into the woman’s organ, even then he is not impotent or lacking virility.”] is able to do so, the wife will have no right to dissolve the marriage; rather, this right will have been permanently annulled. At the time of marriage, the wife knew that her husband was impotent. Despite this, she agreed to marry him. In this case, she fundamentally has no right to go before a judge seeking dissolution of the marriage.[
“It is stated in the fiqh book known as the Alamgiri that, if at the time of marriage the wife knows that her husband is impotent and unable to have intercourse with women, she has no right to bring a claim for dissolution of the marital bond.”] Even if the man becomes impotent after having intercourse once following the marriage, the woman still has no right to seek dissolution of the marriage. [
“It is stated in the Durr al-Mukhtar that if, after having intercourse once with his wife, a man’s penis becomes flaccid or he becomes impotent, then, after having experienced the pleasure of intercourse, the woman has no right to seek dissolution of the marriage.”] If, after the marriage, the woman learns that her husband is impotent but nevertheless agrees to maintain a household with him, then in this case too she is deprived of the power to annul the marriage.[
“Allamah Shami says: The meaning of the statement ‘it will not be annulled’ is that, until the wife says, ‘I agree to maintain a household with him,’ her right to bring a claim for dissolution of the marital bond will not be annulled.”
In these circumstances, the woman’s power to annul the marriage has thus been cancelled. Her second avenue for escaping from this worthless husband is to demand khula. But she cannot obtain that either. For when she demands khula from her husband, he is unwilling to release her even after receiving the entire dower or somewhat more than it. If she takes the matter to court, the court declares itself unable either to compel the husband to divorce her or to sever the relationship between the two. Now consider what will become of this unfortunate woman. Either she will commit suicide, or she will live a life of asceticism like a Christian nun and continue to suffer mental anguish, or she will remain within the marital bond and engage in reprehensible acts, or she will bid the religion of Islam a final “khuda hafiz.”
But the question is: can the purpose of Islamic law be that a woman should sink into one of the situations mentioned above? Can the purpose for which the Shariah’s marital law was enacted be achieved through such a marital relationship? Can love and harmony arise between such a husband and wife? Will they be able, together, to contribute anything to society and civilization? Can the angels who bring happiness and joy ever enter their home? Can such a marital bond, in any respect, be regarded as a fortified stronghold, and can it safeguard religion, moral character, and honor? If the answer to these questions is negative, then tell us: upon whose head will fall the responsibility for an innocent woman’s life being ruined, for her being compelled to engage in reprehensible acts, or for her leaving the bounds of the religion of Islam? Allah and His Messenger are surely free of responsibility. For the Almighty Allah and His beloved Prophet left no room for such a defect in the law they gave.
The Shariah Judicial System
The detailed account of Islamic law given in the discussion of talaq and khula makes it clear that the principle on which this law has been formulated is that, if the marital relationship between man and woman remains intact, it must remain so while observing Allah’s prescribed limits and with love and harmony. In the Noble Qur’an this has been explained through concise yet perfectly expressive words such as “imsak bil-ma’ruf.” If it is not possible for them to live together in this manner, then there should be “tasrihum bi-ihsan”; that is, a husband and wife who cannot live together amicably should separate from one another peacefully, so that a situation does not arise in which their conflict not only makes their own lives bitter, but also creates disputes between their families, spreads disorder through society, expands moral ruin, and extends its harmful influence even to their future descendants.
To close these avenues of ruin, the Islamic Shariah has given the man the right of talaq and the woman the right of khula, so that, if they wish, they may act upon the principle of “tasrihum bi-ihsan.” [Here it should also be understood that the Islamic Shariah does not approve of bringing quarrels and disputes between husband and wife before the court in public. For this reason, the Islamic Shariah has also provided such legal arrangements for men and women that, as far as possible, disputes within the home may be settled within the home. Knocking at the court’s door is to be the final effort, when no possibility remains of reaching a settlement within the family circle.—Author.] Yet there are also some quarrelsome people who can act neither upon “imsak bil-ma’ruf” nor are prepared to act upon “tasrihum bi-ihsan.” Consequently, situations sometimes arise in the marital sphere in which either husband and wife differ over their rights, or it is not possible for them to act upon both “imsak bil-ma’ruf” (retaining with honor) and “tasrihum bi-ihsan” (releasing courteously). For this reason, in addition to the provisions of talaq and khula, the Islamic Shariah has established a third means of preserving rights and safeguarding the rights of Allah. This is called the Shariah judicial system.
Some Fundamental Matters Concerning the Shariah Judicial System
Before discussing matters connected with the Shariah judicial system, it is necessary to explain in detail several fundamental matters.
The First Condition for Adjudication
The first of the conditions of the Shariah judicial system is that the court must be an Islamic court and the judge must be a Muslim in heart and soul. One reason is what the jurists have explained in detail: under the principles of the Shariah, although the decisions of non-Muslim judges in Shariah matters concerning Muslims may be outwardly effective, they cannot be effective in principle. For example, if a non-Muslim judge annuls a Muslim’s marriage, regardless of whether his order conforms to the injunctions of the Shariah and whether it practically separates the husband and wife, the marriage will not in reality be annulled merely because he has declared it annulled, and it will not be permissible for the woman to marry another man. If she does marry, that marriage will be considered invalid, and in the view of the Islamic Shariah her children will be illegitimate.
The second reason is that the Qur’an fundamentally does not endorse the decisions of non-Islamic courts. Moreover, particularly regarding Muslims, the Qur’an’s final judgment is that the decisions of unbelieving courts concerning them are unacceptable to Allah Almighty. I have discussed this subject in detail in my article entitled “A Particularly Important Fatwa,” which has been presented as an appendix toward the end of this book.
The Need for Ijtihad in the Judicial System
It is essential for a judge to possess the qualification for ijtihad and research. In addition, he must have deep inner respect, as a matter of faith, for the law that he has been placed on the bench to enforce. Otherwise, although the Shariah contains extensive provisions for matters left to the Qadi’s decision, it is impossible to correctly interpret, examine, and review these laws in personal cases with regard to the particular circumstances and nature of each lawsuit; to derive, where appropriate, minor but necessary rulings from the basic principles of the law; and to attend to all the conditions for conducting a case in accordance with the spirit of the law, unless the Qadi possesses the qualifications mentioned above. It is clear that these two qualities can be combined only in a person who is a Muslim in matters of faith and fully experienced in the principles and branches of Islamic law. He can properly understand the spirit of this law, is well versed in its primary sources, and is familiar with the internal structure and organization of Muslim society. It is entirely impossible for these qualities to be found in a non-Muslim judge. For this very reason, one cannot at all expect him to reach correct decisions in the Shariah matters of Muslims.
The Evils of the Absence of a Shariah-Based Judicial System in the Indian Subcontinent
[Here it is necessary to explain one point: fundamentally, I do not believe in the validity of the Shariah judicial system established with the approval of a non-Muslim government. Nevertheless, in this context I wish to indicate a method by which, until an Islamic state is established, it may be permissible for Indian Muslims to settle their Shariah matters on its basis.—Author.]
Even after the British government was established in this subcontinent, until 1864 the Shariah matters of Muslims were decided by Muslim judges. They were selected from among the community of scholars. But afterward this judicial system was abolished, and, like ordinary civil matters, Shariah matters too were brought under the authority of the English courts. The first harm was that the cases in which, according to the principles of the Shariah, the Shariah judicial system was applicable virtually came to an end. As a result, it became impossible for Muslims to obtain from these courts decisions in their Shariah matters that could be called Shariah decisions from the perspective of their religion.
The second harm, no less significant than the first, was that the judges of these courts lacked the means and resources to acquire comprehensive knowledge of the principles and branches of Islamic law or to develop the proper capacity for ijtihad and research into it. Nor did they possess in their hearts the respect for this law that could have restrained them from transgressing its prescribed limits. The books that served as the sources of their knowledge were written by authors unfamiliar with the Arabic language. For example, Hamilton produced an English translation of the Hidayah with the help of a French translation. He lacked the ability to understand the original text of the Hidayah in its true sense. Indeed, he misunderstood ordinary technical terms of fiqh so badly that this cannot be grasped without comparing it with the original Hidayah. Bailie’s Digest of Muhammadan Law, which was prepared on the basis of a translation of the abridgment of the Fatawa-i Alamgiri, and Macnaughton’s Principles of Muhammadan Law reveal the poverty of their knowledge of Islamic law. Lacking comprehensive knowledge, they gave defective and inconsistent interpretations of the law in these books. The English courts themselves candidly acknowledged the poverty of their knowledge. For example, Justice Markby wrote in the judgment of a case:
The means and resources available to the court for becoming acquainted with the Islamic Shariah are so inadequate and limited that I am prepared to adopt any course gladly in order to avoid deciding matters connected with it. [Khaja Hosain versus Shahzadi Begum.]
Yet despite such limited knowledge and experience, the courts have the audacity to conduct research and ijtihad concerning Islamic law and are not at all afraid of transgressing its limits. This is because respect for this law is not part of their faith and creed, and the judiciary of the despotic government imposed no restriction upon them preventing judges from transgressing its limits. What Chief Justice Garth wrote in the judgment of another case [Malik Abdul Gafur versus Maliga] is sufficient to reveal the true position of these courts. He wrote:
The Islamic law to which our attention has been directed, and which is recorded in old books, was in force several centuries ago in Baghdad and other Muslim countries; it was entirely distinct from the legal and social conditions of those countries. Although we endeavor, as far as possible, to act in lawsuits between Muslims according to the injunctions of the Islamic Shariah, it is difficult, first of all, to determine what the law originally was. Secondly, numerous disagreements arose among the mujtahids of earlier times—namely, Imam Abu Hanifa and his students—over the interpretation of the law, and reconciling them is very difficult. We should therefore make every effort to acquaint ourselves with the fundamental basis and correct principles of the law. Thereafter, it should be applied with due regard to the principles of justice, good intentions, the other laws in force in the country, and social conditions.
This statement makes it clear that a Chief Justice of the court is acknowledging his own ignorance of Islamic law and considers himself incapable of reconciling the disagreements among the Imams in interpreting the law. Yet he also openly regarded reaching a decision independently as permissible. In a judgment, he did not hesitate to state that, in applying Islamic law to Muslims, he was not obliged to remain within the limits of Islamic law alone; rather, he considered it necessary also to take into account the prevailing law of the country, social and cultural conditions, and his own view of the principles of justice. The defective and crippled law called “Mohammedan Law” that is in force in the courts of our country is the product of this faithless and ignorant research. Even this crippled law, in the name of Islamic law, is not properly applied to our Shariah matters; rather, it continues to become more distorted day by day under the blows of ever-new decisions in the courts.
The First Step on the Path of Reform
If it is presently possible to adopt even the slightest means of obtaining correct decisions in matters relating to marriage, divorce, and other matters connected with the Shariah, it is this: the Muslims of India must attain Cultural Autonomy here. [I have discussed this subject in detail in the second volume of my book Muslims and the Present Political Conflict.—The author.] Under it, Muslims will have the right to establish fully autonomous Shariah courts for settling all their affairs. Pious and God-fearing scholars possessing profound, juristic knowledge of Islamic law will be appointed as judges of these courts. This is such a necessity that, without it, it is practically impossible for the Muslims here to live as Muslims. If they cannot achieve even this, then, as a fallback measure, it would be sufficient, in a situation of extreme necessity, to establish a three-member panchayat in every district according to the Maliki school. The members must enjoy the general confidence of the district’s Muslim population, and at least one of them must be a trustworthy scholar. Thereafter, pressure must be brought to bear on the autocratic government to secure legal recognition for this committee, and the government must give the panchayat’s decisions in matters relating to Muslims’ marriages, divorces, and so forth the status of court judgments. No appeal against them may be made in the English courts. Moreover, cases relating to marriage, divorce, and so forth filed in the English courts must also be transferred to the panchayat. [According to the Hanafi school, a panchayat’s decision cannot be equivalent to the decision of a judicial qadi. But if this panchayat possesses the power to enforce its rulings, and its jurisdiction is not merely that of arbitration but is equal in status to that of a judge, then, according to the Hanafi school as well, its decision will be equivalent to the ruling of a qadi of a Shariah court.—The author.]
Apart from British India, in non-Muslim states and in those Muslim states where, following the example of the English government, the Shariah judicial system has been abolished and Shariah matters have been placed under ordinary civil courts, the first step in restoring this system must be either to reintroduce the Shariah judicial system or to establish a panchayat system and secure its legal recognition from the governments of those states. If this is not possible, presenting a draft law in the legislative assembly and having it passed will never serve Islam’s purpose.
The Need for a New Codification of the Law
Along with introducing the Shariah judicial system, another thing is necessary: a law book must be compiled in which the legal directives connected with the Muslims’ Shariah regulations (fiqhi ahkam) are arranged, with explanations, in the sequential format of Muhammadan Law. This will make it easy to introduce this law in Shariah courts or panchayats in place of the existing British law. When mixed courts were established in Egypt, the need for such a compilation of laws was also felt, containing all the necessary laws collected from reliable sources. Accordingly, at the direction of the Egyptian government and under the leadership of Qudri Pasha, a committee of scholars of al-Azhar completed this task. The compilation of laws prepared by this committee was officially recognized, and arrangements were made for its enforcement in the courts. [This compilation was translated into French and published under the title Droit Mussalman. Courts in countries besides Egypt also make use of this book.—The author.]
It is essential to form such a committee in India. Under this committee, scholars selected from each group will work with several legal experts to prepare a detailed compilation of the law, together with the necessary explanations. First, the compilation will be published in draft form, and the opinions of scholars from the various groups will be sought. Thereafter, necessary revisions will be made in light of their opinions and reviews. When it assumes its final form, it will be recognized as a reliable compilation of the directives of the Shariah. It will then be decided that Muslims’ Shariah matters shall be referred to this compilation, and that the Muhammadan Law formulated on the basis of the views and ignorant, faithless, incompetent interpretations and analyses of English court judges will be deemed invalid.
It may be asked: when all the general aspects of the law are described in detail in our fiqh books, what need is there to prepare a new compilation of this kind? There is not merely a possibility that such an objection will be raised; considering the mentality of one group, it can be said with certainty that this proposal will definitely be opposed. I shall therefore briefly describe here the reasons why such a comprehensive compilation is necessary.
Even a cursory examination enables anyone to understand that Islamic laws are scattered throughout the books of fiqh. They are written in an ancient style and method of exposition. Even those who teach these books today are generally unable to understand their technical subtleties properly. In modern law books, statutory provisions are arranged according to serial numbers; under each provision, particular terms are explained, its purpose is analyzed, and the sub-provisions falling under it are described in detail. They also include the views of various judges, the views of reliable judges, the explanations of experts, and judgments in various cases. In addition, tables of contents and an Index have been added, making it easy to locate the subjects contained in the book. In view of these things, no intelligent person will refuse to acknowledge that the progress achieved in the arrangement of publishing through human effort must certainly be applied to the reorganization of the books of fiqh. Finally, the ancient method by which the books of fiqh were arranged was not sanctioned by a heavenly directive such that following it would be obligatory and abandoning it a sin.
But the more important reason is that most of the rulings described in the old books of fiqh took ordinary human circumstances into consideration. Applying these rulings literally to every case and indiscriminately to every matter is fundamentally wrong. They must be comprehensively reviewed in light of the following considerations:
First: The moral, cultural, social, and economic condition of the Islamic society in which this law is being implemented must be kept in view. It must also be considered what the society’s general habits, nature, and customs are; what kind of environment its people live in; what effects this environment has on them; and how strong or weak the influence of Islam is in their actual character, conduct, and activities. It must be considered how much their Islamic characteristics have changed under external influence, and what kinds of legal changes and distortions the general condition of society and its environment have brought about in all these matters.
Second: In every case, the particular circumstances of each of the two parties must be considered. The judgment must be formulated with regard to the character, age, education, physical condition, social position, economic status, past history, ancestral customs, and general condition of the parties’ social class. It must be considered how the law can be applied to them in a particular related matter so that the purpose of the law is properly fulfilled without deviating from its principles.
If, ignoring these two aspects, someone extracts a subsidiary ruling from an old book of fiqh and, with his eyes closed, continues applying it equally to every case resembling that ruling, he may be compared to a doctor who sits down with books written by Hippocrates [Hippocrates was a famous Greek medical scientist of the fifth and fourth centuries BCE, known as Hippocrates the Great. He is called the father of medical science.—Translator.] and Galen [Galen was born around 129 CE in the present-day Turkish city of Bergama and died in 199 CE. Among the ancient medical scientists, he was the greatest after Hippocrates. He was simultaneously a physician, philosopher, and linguist.—Translator.] and begins prescribing on the basis of those books alone, blindly disregarding the country’s climate, the seasons, each patient’s individual characteristics, and the distinct types and symptoms of the various diseases.
The books written by the ancient medical scientists are, in themselves, accurate and scientific. But were they ever written for ignorant medicine sellers to use? Even using these books requires intelligence, knowledge, experience, skill, technique, and discernment. Similarly, the subsidiary laws that the mujtahid imams derive from the principles and fundamental laws of the Islamic Shariah are, in themselves, entirely correct and sound. But these great mujtahids never imagined that the laws resulting from such ijtihad and research would be used without knowledge, intelligence, experience, and foresight, like placing the same seal indiscriminately on every letter delivered by a postman.
Islamic law was founded on such rational principles that, under it, it was almost impossible for any man or woman to be compelled to engage in immoral conduct or be driven to create disorder and corruption in society. And because of the rigor of this law, it was entirely inconceivable that a Muslim man or woman would be compelled to depart from Islam’s boundaries. Yet today we see that among Muslims not only are countless family quarrels arising, but severe moral collapse and even instances of apostasy are occurring. Such calamities have spread only because, in most cases, it has become impossible for people to obtain correct and just decisions under Islamic law. Neither the muftis nor the judges of the courts possess sound judgment, profound knowledge, reflection, and foresight. None of them considers which particular features of the country, society, and specific case must be taken into account when applying a general directive, so that it may be specified within the general limits of that directive under the principles of the Shariah, without frustrating any objective of the Shariah or requiring opposition to any of its principles. As for the judges of the courts, their incompetence is evident. What remains are the scholars. One group among them has no ability beyond reproducing exactly the subsidiary rulings as written in the old books of fiqh. Although Allah Most High has granted some scholars breadth of vision and profound knowledge of the religion, none of them individually has the courage to use reason and judgment in a matter and depart even slightly from an old subsidiary ruling. On the one hand, they do not venture onto this bold path for fear of falling into error. On the other, they fear that other scholars will accuse them of departing from blind imitation of the school. The only remedy for this disease is for a group of eminent and influential scholars from every province to take this task into their own hands. Using their collective strength and influence, they should formulate a legal framework for Shariah matters suited to the present moral, social, and economic condition of the Muslims of India. It should be sufficiently flexible to permit necessary changes in subsidiary rulings, under the principles of the law, in exceptional circumstances.
If anyone declares this contrary to taqlid, we shall say that he is mistaken. He does not know what distinction ought to exist between following the mujtahid imams and following the prophets and messengers. Nor does he know what distinction ought to exist between following ignorant fools and following a competent scholar. He is not even aware of what it means to follow a fiqh-based school. He understands taqlid to mean: “One must regard one’s fiqh school as a substitute for the religion and its imam as a substitute for the Prophet; one must regard the rulings of this school as conclusive, like the commands of Allah’s Book. One must firmly believe as a matter of creed that, quite apart from correcting, changing, or expanding any ruling of this school, even analyzing, reviewing, or scrutinizing it is a grave sin. Abandoning a subsidiary ruling of this school in any matter was permissible only until the age of ijtihad and research—that is, until the fourth Hijri century—but thereafter it became unlawful.”
But this kind of taqlid, or blind imitation, is not established from any of the scholars of earlier times, nor can any Shariah proof be found anywhere in its support. The students of Imam Abu Hanifa, Imam Azam, may Allah have mercy on him, differed with their imam on thousands of issues. Despite this, they were not expelled from the Hanafi school. The expert scholars of the Hanafi school gave preference to some over others in cases of disagreement between Imam Azam and his students, abandoning one opinion and adopting another. Yet despite such review and scrutiny, no one could call them non-muqallids. From the fourth Hijri century through the eighth and ninth Hijri centuries, Hanafi scholars continued to modify and revise the ijtihadi rulings of their predecessors in view of the needs of the age, and, when necessary, adopted the opinions of other mujtahid imams’ schools and issued fatwas accordingly. Yet no one declared them non-muqallids on account of this ijtihad. No one has the audacity to condemn Abu al-Layth al-Samarqandi, Shams al-A’immah al-Sarakhsi, the compiler of al-Hidayah, Qadi Khan, the author of Kanz al-Ummal, Allamah Shami, and other scholars of their rank as non-muqallids. This is because they introduced flexibility into the rulings of the Hanafi school in light of the conditions and needs of their respective eras, and where they found a ruling of that school harmful or unsuitable for implementation in view of general circumstances, they issued fatwas according to the rulings of other schools. They incorporated this into the principles of the Hanafi school: “It is permissible to issue a fatwa according to another school in view of necessity, provided that personal desire has no place in it.”
There is no doubt that if people are given unrestricted freedom to act according to another school as their needs dictate, or to take advantage of the concessions (Option) of their own school, there is considerable fear that they will follow their desires. The door will be opened to deriving unlawful benefit from the permissions granted by different schools, from their respective perspectives and in particular circumstances, and to making a mockery of the religion, resulting in severe disorder in conduct and behavior. But if the scholars of the religion undertake this on the basis of mutual consultation, with piety and good intentions, and in view of the needs and circumstances of Muslims, there is no fear of religious or worldly harm. Rather, if they unknowingly make an error in some matter, the two sources of the Islamic Shariah (nass) clearly state that Allah Most High will forgive them and reward their sincere intention.
At most, the fear in adopting this course is that a group will gird itself to oppose them, and some among their followers will also form a bad opinion of them. But the greater fear involved in not adopting this course is that, when Muslims become helpless before their needs, they will follow their desires instead of Islamic law; mockery of the religion, turning the law of the Shariah into a plaything, defiance of Allah’s prescribed limits, religious and moral collapse, disbelief, and rebellion against Allah will spread among them; and, like the Christian nation, they will abandon the laws of their religion and adopt man-made laws, [as has been done in Turkey.—The author.] Then, on the Day of Resurrection, along with these sinners, their religious leaders will also be seized and brought before Allah’s court. Allah Most High will ask them: ‘Did I give you intelligence and understanding for any purpose other than that you use them? Was My Book and the Sunnah of My Prophet placed before you so that you would merely sit with them while Muslims went astray? I made My religion easy; what right did you have to make it difficult? I commanded you to obey the Qur’an and Muhammad, peace and blessings be upon him. Who made it obligatory for you to go beyond these two and follow your predecessors? I placed in this Qur’an the remedy for every hardship; who forbade you from touching it? And who instructed you to regard books written by human beings as sufficient for you?’ In answer to this questioning, no scholar can hope to find refuge in the arms of the authors of Kanz al-Daqa’iq, al-Hidayah, and al-Alamgiriyyah.
Since this relevant discussion was necessary and important, and it was essential to present it in detail, I have had to devote this much space to it. I now return to my main discussion.
Fundamental Guidance
Since the Noble Qur’an is a foundational book, it does not discuss in detail every matter connected with married life. But it sets out several comprehensive principles under which almost all related issues fall, and which also provide excellent guidance for deriving subsidiary rulings. Therefore, before examining the detailed provisions of the law, it is essential to understand properly the principles and rules set out in the Noble Qur’an.
(1)
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“Do not marry polytheist women until they believe.”—Surah al-Baqarah: 221
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“Do not give your women in marriage to polytheist men until they believe.”—Surah al-Baqarah: 221
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“Lawful for you are the chaste women of the People of the Book.”—Surah al-Ma’idah: 5
These verses establish the principle that a Muslim man may not marry a polytheist woman. However, women of the People of the Book have been made lawful for them. But a Muslim woman may neither marry a polytheist man nor marry a man from the People of the Book.
(2)
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“Do not marry polytheist women … and do not give your women in marriage to polytheist men.”—Surah al-Baqarah: 221
Another principle can be derived from this verse. A man himself possesses the authority to contract his own marriage. A woman, however, is not entirely independent in this matter. It is the responsibility of her guardians to marry her to someone. There is no doubt that a woman’s consent must be obtained in marriage. No one has the right to marry her to anyone against her will. As stated in a hadith:
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“A widow has more authority over her own affairs than her guardian.”
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“A mature girl may not be married without her permission.”
But since a woman’s marriage is deeply connected with the interests of the family lineage, the demand of the Noble Qur’an is that, in marriage, the woman’s choice and desire alone are not sufficient; the opinions of her male relatives must also be taken into consideration.
(3)
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“Pay them their bridal gifts in return for the benefit you have received from them—consider it obligatory.”—Surah al-Nisa’: 24
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“How can you take back the bridal gift you have given them, when each of you has enjoyed sexual pleasure with the other?”—Surah al-Nisa’: 21
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“If you divorce them before having intercourse with them, but after fixing the bridal gift, then half of the specified bridal gift must be paid.”—Surah al-Baqarah: 237
These verses show that the dower is compensation for the pleasure a man derives from intimacy with his wife. Therefore, after intimacy, payment of the full dower becomes obligatory, and it cannot under any circumstances be annulled or revoked. However, if the wife willingly waives the full dower or a portion of it, that is a different matter.
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“If they willingly relinquish a portion of the dower to you, then you may gladly accept it.” — Surah al-Nisa: 4
Or if she relinquishes it in exchange for khulʿ, that is a separate matter.
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“There is no blame on either of them if the wife secures release from the marriage bond by giving something in exchange.” — Surah al-Baqarah: 229
(4)
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“Even if you have given them a great amount of wealth as dower, you may not take back any part of it.” — Surah al-Nisa: 20
This verse shows that Islamic Shariah has prescribed no fixed amount for the dower. Therefore, its amount cannot be restricted by devising an arbitrary law.
(5)
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“Men are in charge of women because Allah has given some of them superiority over others, and because men spend their wealth on them.” — Surah al-Nisa: 34
In light of this verse, providing for a woman and bearing her expenses is obligatory upon the man. This is in exchange for the authority over the woman that the man acquires through the marriage bond. A woman’s right to maintenance can under no circumstances be annulled. However, if she voluntarily relinquishes this right, or if she becomes disobedient to her husband, that is a separate matter.
((6))
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“Let the affluent man provide for his wife according to his affluence, and let the man of limited means provide her maintenance according to what Allah has given him.” — Surah al-Talaq: 7
Here the principle concerning the wife’s maintenance and expenses has been established: the husband’s financial condition must be considered when determining the amount. The amount for a wealthy person will be determined according to his affluence, and the amount for a poor person according to his ability.
((7))
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“As for those wives whose rebelliousness you fear, admonish them, abandon them in their beds, and strike them physically. Then, if they obey you, do not seek a way against them.” — Surah al-Nisa: 34
In light of this verse, it may be said that the husband has been given the right to discipline his wife only when she adopts a rebellious attitude and the path of disobedience. Even in this situation, two methods of discipline have been specified:
First: abandoning the bed, meaning refraining from sexual relations.
Second: light striking, which is permissible only when she has become extremely rebellious.
Exceeding these limits—that is, disciplining her even though she is not rebellious, imposing severe punishment for ordinary rebelliousness, or exceeding the limits of light striking in the case of extreme rebelliousness—is all included among oppression and transgression.
((8))
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“If you fear a breach between the two, appoint one arbiter from his family and one arbiter from her family. If they both desire reconciliation, Allah will bring about harmony between them.” — Surah al-Nisa: 35
The principle established in the above verse is that if a quarrel arises between husband and wife and no means of settling it among themselves emerges, then, before approaching a court to resolve the dispute, one arbiter should be appointed from among the man’s relatives and one from among the woman’s relatives. Together they should try to settle the quarrel between them.
The phrases ‘wa in khiftum’ and ‘fabʿathū’ address those responsible for the affairs of the Muslims. Therefore, appointing arbiters is their responsibility. If the arbiters cannot reach a settlement, then ultimately the authority to settle the matter belongs to the leader of the Muslims (ulil amr).
((9))
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“If you fear that both spouses will be unable to maintain Allah’s limits, there is no blame on either of them if the wife secures release from the marriage bond by giving something in exchange.” — Surah al-Baqarah: 229
This verse states that, when deciding a matter between husband and wife, the qadi must consider above all whether the husband and wife will be able to remain within Allah’s prescribed limits in their marital relationship. If there is a strong fear that Allah’s prescribed limits will be violated, there is no consideration more important than this on the basis of which the decision to keep the husband and wife together could be deemed permissible. Protecting Allah’s prescribed limits is the most important matter. Therefore, if necessary, everything may be sacrificed for it.
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“Those who transgress Allah’s prescribed limits are wrongdoers.” — Surah al-Baqarah: 229
((10))
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“Do not keep them in hardship with the intention of transgressing against them.” — Surah al-Baqarah: 231
This verse points to another important principle of Islamic law: no woman may be kept bound in a man’s marriage bond in such a way that it causes her harm and results in the violation of her rights. If they are to live together, it must be in a just manner.
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“Live with women in a proper manner.” — Surah al-Nisa: 19
If the wife is to be taken back, that too must be done in a proper manner. ************* “Retain the wife in a proper manner.” — Surah al-Baqarah: 220
But where there is no hope of this, and instead there is fear of harm and violation of these rights, it is necessary to act upon ‘tasrih bil-ihsan’ (releasing her courteously). For, according to the instruction of the Prophet, peace be upon him, Islamic law contains no harmful element and does not permit anyone to cause harm.
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“There is no harm in Islam, nor is there permission to cause harm.”
(11)
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“Do not incline so completely toward one wife that you leave another suspended.” — Surah al-Nisa: 129
Although this verse was revealed in the context of a specific incident, its concluding portion teaches a general principle: no woman may be left in a condition where she remains bound in marriage to one man, waiting, while having no opportunity to enjoy his companionship and no freedom to marry someone else.
((12))
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“For those who swear abstinence from their wives, there is a waiting period of four months.” — Surah al-Baqarah: 226
This verse points to women’s balanced capacity for patience. That is, they may be deprived of marital relations with their husbands for up to four months, provided this does not involve any torment or violation of Allah’s prescribed limits. [On the basis of this principle, Umar, may Allah be pleased with him, ordered that no married man should be kept away from home for more than four consecutive months while serving in the military. — Author.] Thereafter, one of two things is feared. This verse too was revealed concerning a specific incident, but apart from that particular incident, it also provides guidance in other matters.
((13))
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“Those who accuse their wives of adultery and cannot produce any witnesses other than themselves.” — Surah al-Nur: 6
This verse describes the rules of liʿan. If a husband accuses his wife of adultery and cannot present evidence or witnesses, he will be made to swear four times that his accusation is true. The fifth time he will say that Allah’s curse be upon him if he is lying. The wife has only one way to escape the punishment for adultery: she too will swear by Allah four times that her husband’s accusation is false and baseless. The fifth time she will say that Allah’s wrath be upon her if her husband’s accusation is true. Once the liʿan has been completed in this way, the husband and wife must be separated.
((14))
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“But if the woman herself shows generosity (by not accepting the dower), or the man in whose hand is the marriage bond shows generosity (by paying the full dower), then that is a separate matter.”
— Surah al-Baqarah: 237
The final part of the verse explains the principle that the knot of the marriage bond is in the man’s hand, and he has the power either to keep it tied or to untie it. Wherever the subject of divorce occurs in the Noble Qur’an, masculine verbs are used, and the act of divorce is connected with the man. For example, *************** (If they divorce. — Surah al-Baqarah: 227); ********* (If he divorces her. — Surah al-Baqarah: 230); and ************ ‘When you divorce women, divorce them for their prescribed waiting period.’ — Surah al-Talaq: 1
The verses mentioned above prove that, by virtue of being the husband, the man has full authority to divorce or not to divorce. No law may be made to take this right away from him.
However, Islam has imposed this condition on every right: in exercising and applying it, one must not resort to oppression or violate Allah’s limits. ***************** (Whoever transgresses Allah’s prescribed limits has wronged himself. — Surah al-Talaq: 1). Therefore, whoever transgresses Allah’s prescribed limits makes himself deserving of being deprived of his own right.
********************** (Do not oppress, nor will you be oppressed. — Surah al-Baqarah: 279). This is a general principle operative in every branch and every matter of Islamic law, and the man’s right to divorce is no exception.
Therefore, when a woman raises an allegation of oppression and persecution against her husband, it will duly fall under the verse *************** [If you differ over anything, refer it to Allah and the Messenger. — Surah al-Nisa: 59], and if her allegation is proven valid, the law-enforcing authority—that is, the person responsible for all the affairs of the Muslims—has the right to deprive the husband of his authority and exercise it himself. The authority granted in Islamic Shariah to the qadi to annul a marriage, separate husband and wife, and issue a divorce [taking the right of divorce away from the husband and divorcing the woman himself by virtue of his office as qadi. — Author.] is based on this principle. A group of jurists have derived from the verse ******************* the argument that “the right of divorce granted to the man has not been made conditional upon anything, and this principle admits no exception. If the man is unwilling to divorce, the qadi has no right under any circumstances to take the authority of divorce from the husband and exercise it himself.” But the Noble Qur’an does not support this argument. In the Noble Qur’an, even the greatest right, the right to live, has been made conditional through the word ************. And what of the right to divorce? If the husband oppresses, transgresses all of Allah’s limits, and violates all the rights of the other party, then to insist that his right to divorce must still be regarded as unrestricted and unconditional and must remain intact is plainly untenable.
((15))
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“Divorce is twice; then either retain the wife in a proper manner or release her courteously.” — Surah al-Baqarah: 229
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“Then, if the husband divorces her for the third time, she will not be lawful for her former husband until she marries another man.” — Surah al-Baqarah: 230
This verse describes the number of divorces: up to two divorces are revocable, while the third divorce is mughallazah (a divorce that completely severs the marital relationship).
Related Issues
In the previous chapter, the fundamental instructions were presented in sequential order. We will now likewise present, in sequential order, the related rulings associated with each of these fundamental injunctions. We do not intend to examine every related issue here; rather, in view of the needs and circumstances of the age, we will describe the special fiqh rulings concerning those matters that require fresh thought and analysis.
1. The Apostasy of Either the Husband or the Wife
In the present time, the problem of apostasy has become serious. No particular complication arises in the case of men’s apostasy, for no Muslim woman can remain married to a non-Muslim man. Everyone agrees on this. But a complicated problem has arisen in the case of women’s apostasy. Many women have become, and are becoming, apostates merely to escape from the clutches of an oppressive or incompatible husband. In dealing with this problem, the English courts act according to the explicit statements attributed to Imam Abu Hanifah (may Allah be pleased with him) in the Hidayah and other books. That is:
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“If either of the spouses becomes an apostate, the marital relationship will end without divorce.” [That is, the woman becomes unlawful for her Muslim husband, but through this separation she does not acquire the right to marry someone else. — The author.]
But the Indian scholars wish to act, in order to halt this type of apostasy, according to the fatwas of the authorities of Balkh and Samarqand and of some authorities of Bukhara. Their summary is that if the wife becomes an apostate, the marriage is not annulled; rather, she remains bound by the marriage bond with her Muslim husband. The basis of this fatwa is that since such a woman becomes an apostate solely to free herself from the marriage bond, her apostasy will be recognized as having no effect on the marriage, in order to block this path of deception and trickery. But there are several difficulties in accepting this fatwa. The scholars have perhaps not yet turned their attention to them.
First: Regarding Islam and disbelief, both the prevailing law of the country and Islamic Shariah accept only an outward declaration. We have no means by which we can prove that the woman has not apostatized inwardly, but has become an apostate merely to free herself from her husband’s control.
Second: In the case of a woman who adopts one of the religions based on a revealed Book, one might, by taking advantage of the ************** verse, say that she may remain married to a Muslim man. But if a woman becomes a Hindu or a Magian (fire worshipper), or adopts any other religion without a revealed Book, then her remaining married to a Muslim man is contrary to the clear injunction of the Qur’an.
Third: How can Islamic law be applied to a woman who has left the bounds of Islam and adopted another religion? We are under the rule of a non-Muslim state. [The book was written in an earlier period. — Translator.] In the eyes of this state, Muslims, Hindus, and Sikhs are all equal. How can we expect this state to compel a woman—who was married according to Islamic practice while she was a Muslim, and who later, let us suppose, joined the Sikhs or the Arya Samaj—to remain in that marriage against her will?
For these reasons, in our view, Indian scholars will not benefit at all from the fatwas of the scholars of Samarqand and Balkh concerning apostasy. The fundamental question is: Why are women becoming apostates? We can say with firm conviction that in reality only two or four percent of them may be women whose beliefs have actually changed. In reality, what drives them toward apostasy is simply that, in many cases of oppression and persecution, women have no opportunity to lodge a complaint under the prevailing law. The husband inflicts increasingly severe abuse, but the wife cannot obtain khul‘ from him. The husband is idle, insane, dangerously violent, afflicted with a loathsome disease, or addicted to serious vices; the wife does not even wish to hear his name, and their relationship has broken down—yet no avenue is open for her to escape the marriage bond. The husband is missing, with no news of him for years; life has become unbearable for the wife, but she has no means of escaping this distress.
Such miserable circumstances are essentially forcing women to seek refuge from Islam in disbelief. Bringing out isolated details of fiqh from here and there is not the correct way to resist this tendency. In this way, by closing off these unfortunate women’s opportunity to seek shelter in disbelief, they will be driven to commit suicide instead of becoming apostates. Rather, the correct course is for us to review our own laws and modify and reform, in accordance with the demands of circumstances and necessity, those ijtihadi laws whose severity is forcing our sisters and daughters to leave the fold of Islam and seek refuge in disbelief. As far as the binding injunctions of Allah and His Messenger (the nusus) are concerned, there is not merely no severity that could compel anyone to become an apostate; there is not even any element that could cause the slightest harm. This severity is found only in certain ijtihadi laws. By changing these ijtihadi laws through other laws, the path leading Muslim women to apostasy can be closed forever.
2. The Exercise of Adult Authority
Although the Qur’an has established the principle that “the opinion of a woman’s guardians is important regarding her marriage,” the explanation of this principle given by the Noble Prophet (peace be upon him) through his words and actions shows that giving importance to the guardians’ opinion does not mean that a woman has no authority of her own at all in this important matter of her life. On the contrary, the Messenger of Allah (peace be upon him) positively granted women the right that their consent must be obtained regarding marriage. Thus, it is narrated through Ibn Abbas (may Allah be pleased with him) in Abu Dawud, al-Nasa’i, Ibn Majah, and Musnad Ahmad: A girl complained to the Messenger of Allah (peace be upon him), “My father married me against my will.” He said, “You have the authority to reject or approve this marriage.”
It is narrated in al-Nasa’i from Khansa bint Khidam (may Allah be pleased with her) that her father married her against her will. The Messenger of Allah (peace be upon him) granted her the same right.
It is narrated in Dar al-Qutni from Jabir (may Allah be pleased with him) that, in a similar case, the Messenger of Allah (peace be upon him) separated the husband and wife solely because the woman had been married without her consent.
It is narrated in al-Nasa’i from Aisha (may Allah be pleased with her) that a woman complained to the Prophet (peace and blessings be upon him) that her father had married her to his nephew against her will. The Messenger of Allah (peace be upon him) gave her the right either to uphold the marriage or to reject it. In response, she said, “O Messenger of Allah! I approve what my parents have done. My purpose was merely to let women know that their fathers do not possess authority over this matter.”
It is mentioned in Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i, and the Muwatta that the Messenger of Allah (peace be upon him) said:
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“A widow has more authority over her remarriage than her guardian, and a young woman’s permission must be obtained for her marriage.”
It is narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said:
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“A widow must not be married without her permission, and a virgin must not be married until her permission has been obtained.”
3. Guardians’ Coercion
The hadiths mentioned above show that one of the fundamental principles of Shariah is that a woman’s consent is essential in marriage. The question now is: if a minor girl is married off by her father or another guardian, does her right of consent remain in such a case? Regarding this issue, our jurists have issued the fatwa that if a minor girl is married off by someone other than her father or grandfather, she will have the right, upon reaching adulthood, either to uphold or reject the marriage. But if her father or grandfather married her off, she will not have the right to reject the marriage. However, if abuse of the father’s or grandfather’s authority is proven, this right will remain. For example, if the husband is a fasiq, shameless, or notorious for adopting reprehensible conduct and acting recklessly.
“The view that a father or grandfather has the right to impose his authority upon a minor girl and that she cannot reject the marriage arranged by them after reaching adulthood” is not proven by any verse of the Qur’an or any hadith of the Noble Prophet (peace be upon him). [In al-Mabsut, Imam Sarakhsi managed, after considerable effort, to present only one proof. It is that Abu Bakr (may Allah be pleased with him) married Aisha (may Allah be pleased with her) to the Noble Prophet (peace be upon him) while she was a minor. When she reached adulthood, the Prophet (peace be upon him) did not say to her: “You have the right to accept or reject this marriage.” Yet if a minor girl had such a right, then when the verses of choice in the Qur’an (Surah al-Ahzab, verses 28 and 29) were revealed, the Messenger of Allah (peace be upon him) would have given them the same choice regarding whether to remain his wives. — Volume 4, p. 213.]
It is thus known that, even after extensive searching in support of guardians’ coercive authority, no proof from the Book and Sunnah could be produced other than this weak evidence. This evidence is so weak that I am amazed how a person of the stature of Shams al-A’immah al-Sarakhsi based such an important matter upon it. Yet he did not consider that the view he was about to formulate would permanently deprive countless women of a right. If it were correct that, from the perspective of hadith, a daughter has no right to exercise authority after reaching adulthood over a marriage arranged by her father, then this could have been correct only if Aisha (may Allah be pleased with her), after reaching adulthood, had rejected the marriage arranged by her father, or had asked to exercise the “adult’s option” against this marriage, and the Noble Prophet (peace be upon him) had replied, “No, you no longer have this right, because your father married you when you were a child.” But no hadith of this kind exists. Indeed, no hadith even mentions that Aisha (may Allah be pleased with her) explicitly said, “The Noble Prophet (peace be upon him) did not grant me any choice in this matter.” The entire basis of this argument rests only on the following: since no hadith mentions that the Noble Prophet (peace be upon him) gave Aisha the “choice,” it must be accepted that he did not give her the choice to approve or reject the marriage; and since he did not give her that choice, we may conclude that such girls have no right to exercise authority.
While presenting such flimsy evidence, Shams al-A’immah did not remember that the absence of an incident from a hadith cannot prove that the incident did not occur. Nor did it occur to him that if a girl, after reaching adulthood, was satisfied with her father’s action, expressed no dissatisfaction with it, and made no claim to exercise the “adult’s authority” against her father, then if no choice was given to her in such circumstances, how can this ultimately prove that a daughter has no right whatsoever to exercise “adult authority” against her father? If people’s rights are curtailed through such arguments, someone could also argue that, since a certain person in a certain place—who had never asked for water—was not given water, no one should be given water.
An even stranger argument of Shams al-A’immah is that if a daughter has the right to exercise “adult authority” against her father, then the Noble Prophet (peace be upon him) would certainly have given Aisha this choice without her making any claim. For after the revelation of the verses of choice, he gave his wives this choice. In other words, Shams al-A’immah’s argument is that because Allah the Exalted issued an explicit command concerning one matter, the Noble Prophet (peace be upon him) would have done exactly the same thing in another matter as well. But in reality, Allah the Exalted gave him no instruction concerning this matter.
The learned scholars want such weak arguments to be accepted blindly, because there is a fear that anyone unwilling to accept them will be branded a non-muqallid. — The author.] Rather, this is based on the following assumption of the jurists: “Since fathers and grandfathers cannot wish evil for a girl, the marriage arranged by them should be binding upon her.” Thus, it is stated in the Hidayah:
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“(If a boy or girl is married off at a young age by his or her father or grandfather,) after reaching adulthood they have no right to approve or reject the marriage. This is because the father’s or grandfather’s decision concerning them is regarded as final. (A father can never harm his child.) Moreover, their affection for them is unquestionable. Therefore, just as a marriage contracted with their consent after they reach adulthood is binding, so too is this marriage binding.”
But this is merely a ruling based on analogy, and it is neither inviolable nor capable of being inviolable like the command of Allah and His Messenger. Various objections can be raised against it, both from the evidence of the Qur’an and hadith and from rational consideration. For example:
First: Authentic hadith show that the Noble Prophet (peace be upon him) married the young daughter of Hamzah (may Allah be pleased with him) to Umar ibn Abu Salamah and said that, after reaching adulthood, she had the authority to reject or approve this marriage. This hadith completely establishes the “adult’s option” for a minor girl. For the Messenger of Allah (peace be upon him) gave no explanation that, since he was not the girl’s father but her cousin, the marriage arranged by him was not binding upon her.
Second: It is strange that an adult girl has the right to exercise her own judgment against her father and grandfather, but if this same girl is a minor, her right is to be taken away completely. Yet, considering the important aspects of a woman’s relationship to all matters of marriage, the Lawgiver has granted her the same right in both conditions. If a guardian can exercise coercion on the basis of being the “possessor of final authority” and the “source of perfect affection,” then he should likewise have that authority over an adult daughter, just as it is being established in the case of a minor. But when a guardian has no right to coerce an adult daughter, why should he have this right over a minor daughter?
Third:It is not certain or proven that fathers and grandfathers are “sources of boundless affection” and “possessors of complete authority.” An analogy was constructed merely by considering what is generally prevalent. But many incidents have occurred and continue to occur contrary to this assumption, from which there is little evidence of boundless affection or perfect judgment.
Fourth:Even if this assumption were correct, there is still a strong possibility that fathers and grandfathers, acting with sincere intentions as sources of boundless affection and possessors of complete authority, may marry their minor daughter to another minor boy, only for the boy, upon reaching youth, to dash their hopes and prove worthless—especially in the present age, when the system of Islamic education and training has become disordered. Defects in education are producing extremely devilish characters, and such a corrupt environment prevails around Muslims that it has a disastrous effect on the character and habits of young people. In these circumstances, it is very necessary to prevent the practice of marrying children at a young age, and such marriages should at least not be made binding. For many boys who initially seemed to offer some hope later become involved in vile character, bad habits, and beliefs opposed to Allah. In this situation, the coercive authority of fathers and grandfathers itself becomes a source of danger for them.
Fifth:If fathers and grandfathers abuse their authority, it will become very difficult for a girl to exercise her “right of adult authority” against them. For in such a situation she would have to present before the court proof of bad intentions, wrongful conduct, shamelessness, malicious intent, stupidity, foolishness, and the like against her own father and grandfather. This would be not only difficult for her but also blameworthy.
For these reasons, this subsidiary issue of fiqh should be reconsidered. The demand of reason and sound judgment is that this purely ijtihadi issue be corrected, and that minor boys and girls be granted the right to exercise the “adult’s authority” in every circumstance after reaching adulthood. [We have not discussed the case of a minor boy here, because the avenue of divorce remains open to him even after reaching adulthood. — The author.]
4. The Exercise of Adult Authority Subject to Conditions
Another ijtihadi issue of the jurists also deserves review in this connection. Regarding guardians other than the father and grandfather, their fatwa is: “If they marry off their minor virgin daughter, she has the right to exercise adult authority. The condition, however, is that she must immediately express her disapproval as soon as the first sign of adulthood appears. If she does not communicate her disapproval immediately upon her first menstruation, this choice of hers will lapse.” Interestingly, they have imposed this condition only in the case of a minor virgin daughter (bakirah). In the case of a thayyibah [a woman who has lost her husband. If a girl has had intercourse with a man before reaching adulthood—whether through marriage or fornication—she too is considered a thayyibah. — The author.] and a minor boy, the ruling is that after reaching adulthood, the right to annul the marriage remains until they express their own consent.
We have found no support in the Qur’an and hadith for the condition imposed in the case of a minor girl. This too is an ijtihadi issue and needs correction. The sole reason for making the right to annul the marriage conditional upon reaching adulthood is that, upon reaching puberty, a person develops the ability to distinguish good from evil. With the help of knowledge and reason, he or she can make responsible decisions in all personal matters. But this does not mean that a great change begins as soon as the first sign of puberty appears, or that the ability to make decisions immediately emerges. Even if, for the sake of argument, it is accepted that such a change does occur, the condition of a thayyibah and a minor boy cannot differ from that of a virgin girl. Thus, when the “adult’s option” of these two has been extended until they express their consent through their words and actions, what reason can there ultimately be for not allowing a virgin girl sufficient time to make an informed decision? Compared with an adult widow (thayyibah) and a young man, an inexperienced virgin girl has a greater right to this opportunity, because this helpless girl is far more inexperienced than either of them.
5. Dower
Regarding the dower, it is universally accepted that neither Allah’s law nor the law of His Messenger has set any maximum limit for it. A famous incident relates that during his caliphate, Umar (may Allah be pleased with him) wished to set the maximum dower at forty uqiyyahs [one uqiyyah equals forty dirhams. — Translator.]. But a woman objected to his statement and said that, in light of the Qur’anic verse: ***************** “If you have given one of them a great amount of wealth, do not take anything back from it”—you have no right to do this. Hearing her argument from the Qur’an, Umar (may Allah be pleased with him) said: ************** “A woman has spoken correctly, but a man has erred.”
Therefore, as far as limiting the amount of dower is concerned, there is apparently no provision for it in the law. However, authentic hadith prove that exaggerating in setting a large dower and fixing a dower beyond the man’s means are disliked actions. The Noble Prophet (peace be upon him) said:
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“Try to bring women together with men, and do not exceed the limits in fixing the dower.”
Abu Amr al-Aslami (may Allah be pleased with him) married a woman in exchange for a dower of two hundred dirhams. The Prophet (peace be upon him) said:
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“Even if you found dirhams flowing through your rivers and canals, you still would perhaps not give such a large dower.”
Anas (may Allah be pleased with him) married a woman for four uqiyyahs (160 dirhams). The Messenger of Allah (peace be upon him) said:
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“It seems that you are digging through this mountain to extract silver.”
Umar (may Allah be pleased with him) said, “Do not exceed the limits in fixing women’s dowers. If this were an object of honor in worldly life and a matter of piety for the Hereafter, the Messenger of Allah (peace be upon him) would have preferred it more than you do. But none of his wives or daughters had a dower exceeding twelve uqiyyahs.”
This concerns only the fixing of a high dower. But the practice that has become prevalent in our country is even more abhorrent. Here, arrears of dower amounting to thousands or hundreds of thousands of taka are written into marriage documents as a matter of dispute. Yet it is not possible for them to pay such a huge sum, nor is it written down at the time of fixing the dower with the intention of paying it. This practice has exceeded all limits of depravity and has become a cause of ruin for marriage. The Noble Prophet (peace be upon him) stated in detail:
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“Whoever marries a woman in exchange for a dower while intending not to pay it is an adulterer and fornicator. And whoever takes a loan while intending not to repay it is a thief.” — Kanz al-‘Ummal. [The importance of paying the dower that is evident from this hadith is clear to everyone. To those who, according to the prevailing practice in the country, have fixed a dower exceeding their financial means, I would advise on the basis of the above hadith that they should persuade their wives to agree to accept a dower within their means, which they can pay either at once or in installments. I would also advise righteous women to agree to accept this reduced amount of dower. Thereafter, it is the duty of every God-fearing Muslim to rid himself of this burden of dower as soon as possible. Dower is a kind of debt. Dying while knowingly or carelessly leaving a debt upon oneself is so reprehensible that the Noble Prophet (peace be upon him) refused to lead the funeral prayer of such people. — Author.]
The dower due to the wife is a kind of debt owed by the husband. Therefore, in Bengali Muslim society, its alternative term is denmohor. — Translator]
This is the inherent defect or harm of the aforementioned type of dower. Its manifest harm is no less serious. The real purpose of fixing such a dower is to prevent the husband from divorcing his wife. But the result is that, if discord arises between husband and wife and it becomes impossible for them to live together, this excessive dower becomes a calamity in the woman’s life. The husband does not divorce her merely out of fear of a dower lawsuit, while the poor wife remains in a distressing situation for years, or even throughout her entire life. Among the things that commonly leave women exposed to danger nowadays, one important matter is this excessiveness of the dower. If a balanced dower is fixed with justice and fairness, nearly seventy-five percent of problems will be resolved before they become complicated.
In our view, without opposing Islamic Shariah, the following course may be adopted for reforming this matter: if it is mu’ajjal dower (********) [dower that must be paid immediately in cash. — Author], both parties may fix it at whatever amount they wish, without any limit. But if it is mu’wajjal dower (**********) [dower that may be paid after some time. — Author], its contract must be made obligatory in the proper manner on stamped paper, and a stamp worth fifty percent of the amount must be affixed to the dower document. A written dower contract without a stamp, or with a stamp worth fifty percent less, should not be considered admissible for presenting a claim. If such a law is enacted, this thoroughly defective system of mu’wajjal dower will easily come to an end. People will then be compelled to fix the dower according to their means and, instead of wasting money, will pay the dower at the time of marriage in cash, property, and land. Once conditions change, this requirement may also be abandoned.
6. The Wife’s Maintenance
There are two aspects to the dispute in this section. First, the husband is able to provide his wife’s food and maintenance but does not do so. Second, he is unable to provide her maintenance.
In the first situation, all jurists agree that the qadi may compel him, by every possible means, to provide his wife’s maintenance. But if he does not comply with the qadi’s order, there is disagreement among the jurists about what should be done. According to the jurists of the Hanafi school, nothing can be done in this situation. The woman must arrange her own maintenance—whether by taking a loan in her husband’s name, through physical labor, or with the help of one of her well-wishers.
In contrast, the view of the jurists of the Maliki school is that, in this situation, the qadi himself has the authority to effect a divorce. A group of Hanafi scholars preferred to adopt this fatwa of the Maliki school. However, they attached the condition that the woman must either be unable to provide her own maintenance, or be capable of doing so but be at risk of becoming involved in sin if she lives separately from her husband.
But this condition does not seem correct at all. From the perspective of the Qur’an, receiving maintenance is the wife’s right. It is in return for this that the husband acquires marital rights over her. When a person deliberately refuses to fulfill this right, there is no reasonable justification for forcing the woman to remain imprisoned in his marriage. If a person refuses to give something in exchange for what he has taken, or to pay the price of something whose value he has received, how can he ultimately retain the right to that thing and its benefit? As long as a woman remains married to a man, the responsibility for bearing her expenses rests with the husband. On what basis of justice can she ultimately be burdened with earning her own livelihood, becoming a burden upon her relatives, or making the unreasonable attempt to obtain a loan in the name of an oppressive husband?
In the second situation, the Hanafi jurists hold that the woman should be encouraged to be patient and hope for reward, and should be told: spend your days by borrowing or with the help of well-wishers. According to Imam A‘zam (may Allah be pleased with him), those who supported such girls financially while they were unmarried should also bear the responsibility of their maintenance in this situation. But the school of Imam Malik, Imam al-Shafi‘i, and Ahmad ibn Hanbal (may Allah have mercy on them) holds that if the woman cannot live with such a husband and demands separation, she should be granted a divorce. According to Imam Malik (may Allah have mercy on him), the husband should be given one, two, or three months, or a reasonable period of respite. Imam al-Shafi‘i (may Allah have mercy on him) allowed only three days’ respite. The fatwa of Imam Ahmad (may Allah have mercy on him) is that the marriage between the husband and wife must be dissolved immediately.
The principle of the Qur’an stated in the verse ****************** in this matter not only supports the view of the three Imams; the hadith and the conduct of the Companions also support their view. In the works of al-Daraqutni and al-Bayhaqi, a judgment of the Noble Prophet (peace be upon him) is quoted: “When maintenance is not provided, the marriage between husband and wife shall be dissolved.” The same has also been narrated from ‘Ali (may Allah be pleased with him), ‘Umar (may Allah be pleased with him), and Abu Hurayrah (may Allah be pleased with him). Among the Tabi‘in, the fatwa of Sa‘id ibn al-Musayyab is also to this effect. After analysis and examination, ‘Umar ibn ‘Abd al-‘Aziz (may Allah have mercy on him) acted according to the aforementioned fatwa. The evidence of the Hanafis, on the other hand, is this verse:
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“Let the man of means spend according to his means, and whoever has been given limited provision, let him spend from what Allah has given him. Allah does not burden anyone beyond what He has given him.” — Surah al-Talaq: 7
This verse proves only that Shariah has not fixed a specific amount for maintenance; rather, its amount depends upon the means of those who provide it. The meaning of the verse is not that, where there is no ability whatsoever to provide maintenance, the woman must be forced to live without maintenance. Undoubtedly, this is a matter of extreme resolve. A woman who agrees to live with her husband despite enduring hardship and hunger displays such resolve. Islam teaches this kind of steadfastness, and such should indeed be the quality of a noble woman. But moral instruction is one thing, and a legal right is another. Receiving maintenance is the wife’s legal right. If she voluntarily and gladly relinquishes this right and chooses to support her husband without maintenance, that is highly praiseworthy. But if she does not wish, or is unable, to relinquish this right, there is no room within the fairness and justice of Islamic law to cause her hardship and force her to attain a higher degree of extreme resolve.
Therefore, in our view, among all the schools, the school of Imam Malik (may Allah have mercy on him) is the best regarding this issue. This school orders dissolution of the marriage after granting the husband a reasonable period of respite.
7. Unlawful Cruelty
A Qur’anic verse:
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“As for those women whose disobedience you fear, advise them, forsake them in bed, and strike them. Then if they obey you, do not seek a pretext against them.” — Surah al-Nisa’: 34
In light of this verse, a husband has no right to subject his wife to any form of harshness or cruelty without a valid reason, whether physical or verbal. If he does so, the wife has the right to seek legal protection. We have not found any detailed directive on this matter. However, we believe that the principles of Islamic law allow the qadi to be empowered to protect women from such cruelty and to effect a divorce in cases of unbearable abuse. Nowadays, we see a general practice of treating women unjustly at various levels. “Husbandhood” is being understood as an unlimited, unrestricted license to commit oppression, cruelty, and coercion. To resist this tendency, it is extremely urgent to enact new provisions of law. At the very least, it is essential that habitual beating and abusive language be counted among the valid grounds for seeking khul‘. If such bad habits are proven against a husband, arrangements must be made for his wife to obtain khul‘ without any compensation.
8. Appointing Arbitrators
The course adopted by ‘Ali (may Allah be pleased with him) in this matter shows us the correct path. It is mentioned in the work Kashf al-Ghummah that when the case of a man and his wife was brought before him, he ruled according to the instruction of the Qur’anic verse ****************: “Let each of them appoint one arbitrator from his own side.” Then he addressed the two arbitrators and said, “Your duty is that, if you consider reconciliation between the two appropriate, you should bring it about.” Then he asked the woman, “Are you willing to accept the decision of these two arbitrators?” She replied, “Yes, I am willing.” Then he asked the man the same question. He said, “If they reconcile the two of us, I will accept their decision. But if they separate us, I will not accept it.” In response, he said:
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“You have no such right. Until you express your consent, as that woman has done, you will not be able to move even one step from this place.”
In family disputes of this kind between husband and wife, which are not connected with broader and important legal matters, adopting this method of reconciliation is best. It is necessary to add provisions to the law explaining the method of arbitration, the powers of the arbitrators, the means of implementing their joint decision, and the court’s procedure in the event of disagreement. It is a very valuable feature of Islamic law that family quarrels and disputes should, as far as possible, be prevented from being brought before a public court. If such a dispute does reach a court, before investigating and deciding the matter, the judge should seek help in resolving it from responsible members of both the husband’s and the wife’s families. This proposal should be regarded as a mercy for social life.
9. The Power to Annul a Marriage (Faskh) upon Proof of a Defect [“Khiyar al-faskh,” meaning the power, after marriage, to say, “This marriage is unacceptable to me.” — Author.]
There is considerable disagreement among the jurists regarding defects in husbands and wives. One group holds that neither party has the power to annul the marriage on the basis of a defect in the man or the woman. Thus, the work al-Durr al-Mukhtar states:
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“Neither husband nor wife has the authority to annul the marriage because of a defect in the other, no matter how serious the defect may be, such as insanity, vitiligo, leprosy, or a conjoined urinary and fecal passage.”
Among the Companions, this was the view of ‘Ali (may Allah be pleased with him) and Ibn Mas‘ud (may Allah be pleased with him); and among the mujtahid Imams, of ‘Ata’, al-Nakha‘i, ‘Umar ibn ‘Abd al-‘Aziz, Ibn Abi Layla, al-Awza‘i, al-Thawri, Abu Hanifah, and Abu Yusuf (may Allah have mercy on them), among others.
The second group holds that, where a defect obstructs the relationship between husband and wife, either party has the authority to annul the marriage because of such a defect. Examples include insanity, vitiligo, leprosy, foul breath, various detestable diseases, and a defect in the sexual organs that prevents intercourse. This is the school of Imam Malik (may Allah have mercy on him). Thus Muhammad ibn al-Juz’i (al-Kalbi al-Gharnati, 1193–1340 CE), after discussing the defects mentioned in detail in his work al-Qawanin al-Fiqhiyyah, says:
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“If any one of these defects exists in the man or the woman, the other has the right either to remain with that person or to separate from them.”
According to Imam al-Shafi‘i (may Allah have mercy on him), both husband and wife have the authority to annul the marriage in cases of insanity, vitiligo, and leprosy. But there is no authority to annul the marriage because of sores in the private parts that discharge continuously, foul breath, scabies, and similar diseases. However, if a woman has an internal disease that prevents intercourse, or if the man is impotent or has a severed penis, the other party has the authority to annul the marriage.
According to Imam Muhammad (may Allah have mercy on him), the husband has no authority to annul the marriage on the basis of any physical defect in the wife. But in cases of the husband’s insanity, vitiligo, leprosy, and similar conditions, the wife has the authority to annul the marriage.
Of the aforementioned schools, the second is closest to the teachings of the Qur’an. From the Qur’anic perspective, two things are important in the marital relationship between man and woman: first, protection of character and morality; second, love and harmony between husband and wife. The existence of the aforementioned defects obstructs both these purposes. As a result, husband and wife are naturally compelled either to hate each other or are unable to fulfill each other’s natural needs. As we described earlier, it is among the fundamental principles of Islamic marital law that the marital relationship should not become harmful to either husband or wife or cause them to transgress the limits set by Allah. If no provision is made for exercising the power to annul a marriage because of the aforementioned defects, this principle is undermined. All the diseases mentioned above are harmful, and because of one spouse’s disgust or the failure to satisfy one’s sexual needs, there is a danger of transgressing the limits set by Allah. Therefore, the right of both husband and wife to annul the marriage should be preserved in the case of all such diseases and defects.
This concerns the exercise of the right to object when husband and wife were unaware of each other’s condition before marriage and, upon learning of it afterward, immediately expressed their unwillingness. But where the husband and wife knew each other’s condition before marriage and knowingly entered into the marriage, or did not know but, after learning of it, did not exercise the right to annul the marriage, or where these defects appeared after marriage, the man has a means by which he can resolve the matter at any time—namely, divorce. In addition, he has another option: a second marriage. In the case of women, however, the jurists have in some situations considered no remedy, while in others some have found a means of freeing them and others have not. We shall describe the fatwas on this subject separately and then examine them.
10. Impotence, a Severed Penis, and Similar Conditions
If the husband has a severed penis, the wife has the right to demand dissolution of the marriage, and after investigating the matter, the marriage must be dissolved without delay. Nearly all the jurists agree on this.
If the husband is impotent and the wife demands separation, he must, on the basis of the decision of ‘Umar (may Allah be pleased with him), be given one year for treatment. If he still cannot have intercourse, the marriage must be dissolved. But the jurists have attached the following conditions to this:
1. This ruling will apply only if the wife did not know of his impotence before the marriage. But if she was aware of his condition beforehand and willingly married him, she has no right to demand separation.
2. If the wife did not know of it before the marriage, but after learning of it she openly consented to remain in his marriage, she will no longer retain the right to demand annulment of the marriage.
3. The marriage is to be dissolved only if the husband has never once been capable of intercourse. Otherwise, if he has been capable of intercourse even once, regardless of how, the wife has no right to demand separation.
There is no evidence from the Qur’an or hadith for any of the aforementioned conditions, and we do not consider the three conditions sound. If a woman foolishly and deliberately marries a man despite knowing that he is impotent, it cannot be reasonable or beneficial to punish her by forcing her to spend her entire life with a man lacking virility. The kind of ruin this would cause is so obvious that it needs no description. For such a foolish woman, it is sufficient punishment to deprive her of the dower and grant her a divorce.
If, after marriage, the wife learns that her husband is impotent, and at first she had agreed to live with him, this is not such a grave offense that she should be forced to live in an unbearable condition for the rest of her life. An inexperienced girl may not initially be able to imagine the natural hardship faced by the wife of an impotent man. Perhaps, because of her good nature, she thought, “What does it matter if my husband is impotent? I will simply spend my life with him this way.” But later she encountered unbearable suffering of which she had initially had no conception. Distressed by fear of declining health or becoming involved in sin, she wished for a divorce. In such a situation, is it permissible to silence her by presenting her initial consent as evidence and telling her, “The punishment for the mistake you made at the beginning is that you must now either beat your head against the wall and die or sacrifice your honor and live an inhuman life”? As far as we have considered the matter, this is contrary to the teachings of the Qur’an. Its consequence may be harms that will not remain confined to the woman herself but will spread through society and be transmitted to future generations. Rather than accept such enormous harm, it is better to accept the harm to one man. In reality, he will not suffer any loss from the divorce either. If the woman is to be punished for her mistake, at most she may be deprived of all or part of her dower. In my view, even that is excessive, for the person who married despite being impotent is the one who should be punished.
The third condition also seems extremely harsh to me. The purpose of Shariah embodied in the institution of marriage can never be fulfilled through such a marital relationship. Islamic law is not intended for heavenly beings, but for ordinary people. Even if it is not impossible for women among the general population, it is certainly extremely difficult for one or two, or a few, experiences of sexual satisfaction with her husband to be enough for her. Thereafter, she would have to spend the rest of her life deprived of this pleasure, living happily, and protecting her honor and chastity from every kind of danger. Even if it is assumed that fifty percent of women can exercise such patience, what would become of the remaining fifty percent, whose patience, self-control, and purity of character are not so highly developed? Would the responsibility for their becoming involved in sin and for various forms of corruption spreading through society because of them not fall upon this law, which has closed the lawful path to them and compelled them to take the unlawful path?
Therefore, in our view, a wife should have the right to approach the court concerning any defect causing inability to have intercourse, whether it existed before the marriage or arose afterward. If the defect is not removed even after appropriate treatment during a period of one year, the marriage should be dissolved.
The jurists have said, “Even if, after receiving treatment for one year, the husband becomes capable of intercourse once, regardless of how, the wife’s right to demand divorce will be permanently annulled.” Unnecessary harshness is evident here as well. In this matter, it is best to rely on the opinion of a medical specialist. If, even after treatment, the specialist’s opinion is that he has not become fully capable of intercourse with his wife, the marriage should be dissolved.
The jurists have prescribed the same ruling for a castrated man as for an impotent man. That is, he too must be given one year to seek treatment. The reason given is that he may still be expected to regain the ability to have intercourse. But where medical examinations and investigations have established that there is no difference between a castrated man and a man whose penis has been severed, whether a man has lost his penis or his testicles, in both conditions he is equally incapable of intercourse. No treatment can restore this lost ability. Therefore, the same ruling should apply to a castrated man and a man whose penis has been severed.
11. The Insane or Madman
Hazrat Umar’s (RA) decision concerning an insane person was that one year should be fixed for his treatment. If he did not recover within this period, his wife was to be separated from him. The jurists have also expressed this view and, in various ways, have maintained this ruling in relevant cases.
According to Imam Abu Hanifa (RA), this ruling applies only to a man who had been insane before marriage and was unable to have intercourse after marriage. From this perspective, it appears that he is like an impotent man, and for this reason he is given one year’s respite.
According to Imam Muhammad (RA), if insanity occurs intermittently, he is to be given one year for treatment. But if it is permanent, he comes under the ruling applicable to a man whose penis has been severed, and the marriage must be dissolved without granting any period or opportunity.
According to Imam Malik (RA), one year must be allowed for treatment in the case of both a permanently insane person and one whose insanity is temporary. If he does not recover within that period, the marriage must be dissolved. However, the jurists of the Maliki school have attached the following conditions to this:
1. If he had been insane before the marriage and the woman had married him willingly and knowingly, she may not demand dissolution of the marriage.
2.If, after the marriage, she learns that her husband is insane and openly declares her consent to live with him, she will have no right to seek separation.
3.If insanity appears after the marriage, the wife may demand separation only if, after her husband’s insanity becomes apparent, she has not openly expressed her consent to live with him and has not, of her own will and consent, allowed him to have intercourse with her.
These conditions are exactly like those described in the chapter on impotence. They have no basis in the Book of Allah or the Sunnah of the Messenger, and we have the same objection to these conditions. The objectives of the Shariah, society, civilization and culture, and morality can never be fulfilled by forcibly keeping a woman bound in marriage to a madman. Even if she married him willingly and knowingly, it is sufficient punishment for her that she be deprived of her dower. If, after the marriage, she learns of his insanity and initially continues to openly consent to living with him, but later finds it unbearable for her spiritually and physically, then in reality she has committed no offense for which she should be compelled, as punishment, to spend her entire life with a madman, filled with suffering, distress and anxiety.
If insanity develops after marriage and, in its early stage, the wife is unwilling to leave him because of her devotion to her husband, friendship, love, cooperation, simplicity and courteous feelings; if she takes care of him to the best of her ability and considers it good to maintain the marital relationship as before, how can it be made obligatory that, when her husband’s insanity becomes unbearable for this unfortunate woman, she still be denied release from this marriage bond? Is the purpose behind imposing this condition that whenever symptoms of madness appear in a woman’s husband, she must immediately forget all the love, friendship and cooperation she previously showed him, betray him and leave him? For she would then constantly fear that if his madness exceeded the limits of endurance, her cooperation, friendship, love and devotion to her husband might become a danger to her own life, and that she would have to pay a heavy price for them.
By imposing such conditions, men’s rights have been presented as greatly expanded, while great harshness has been shown toward women. If a woman becomes incapacitated, insane, or afflicted with a loathsome or harmful disease, the man may divorce her or marry another and live a life of comfort and ease. But if a man is afflicted by any one of these defects, the wife can neither divorce him nor remarry while he remains married to her. She has no option other than separation. If even this single avenue is subjected to restrictions such that in most cases no means of escape remains for her, that would contradict the justice, fairness and balance inherent in Islamic law.
The guidance should be that marital relations must be based on justice and courtesy. If women are to remain under men’s marital authority, they must be kept in such a manner that there is no oppression, human suffering or excess, and no fear of violating the limits set by Allah. But if these essential conditions are not fulfilled in a marital relationship, the Quranic principle of releasing her honorably must be acted upon. Now who can say that there is any more serious way of oppressing and wronging a woman than forcibly binding her to a husband who is insane or afflicted with gonorrhea, leucoderma or leprosy? And who does not understand how many opportunities may arise in the life of a woman forcibly kept in such a condition to violate the limits prescribed by Allah? How difficult is it for an ordinary woman to refrain from taking advantage of such opportunities?
12. Concerning the Missing Husband
There is no clear instruction in the Noble Quran concerning a missing husband. Nor is any reliable ruling known from the Hadiths. Imam al-Daraqutni included a Hadith in his Sunan. Its wording is as follows:
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“The Messenger of Allah (SAW) said: His wife shall remain his wife until his condition is known with certainty.”
But this Hadith has reached us through Sawwar ibn Musab and Muhammad ibn Sharjil al-Hamdani. According to the Hadith scholars, both are disputed (**). Ibn Abi Hatim wrote concerning Ibn Sharjil, ************************** (he narrates from al-Mughirah statements that are unsupported, rejected and false). Concerning Sawwar (**) ibn Musab, Ibn al-Qattan wrote, “Among rejected and disputed persons, he is even more notorious than Sharjir.” Thus, this Hadith is weak and unacceptable as evidence. Moreover, the disagreement among such eminent Companions as Hazrat Umar (RA), Hazrat Uthman (RA), Hazrat Ali (RA), Hazrat Ibn Abbas (RA), Hazrat Abdullah ibn Masud (RA) and Hazrat Abdullah ibn Umar (RA) concerning the missing person proves that none of them knew this Hadith and that none of their contemporary Companions was aware of it. For if any Companion had known the Hadith, he would have presented it to the Companions mentioned above and ended their disagreement.
Muhammad ibn Sharjil narrated this Hadith through al-Mughirah ibn Shubah (RA). Al-Mughirah was among the most prominent figures of the time of Hazrat Umar (RA) and Hazrat Uthman (RA), and held the high office of governor. How could it be possible that he knew this Hadith of the Prophet (SAW) and nevertheless did not prevent Hazrat Umar and Hazrat Uthman (RA) from adopting rulings contrary to it? For these reasons, it should be understood that there is no clear ruling in the Quran and Hadith concerning a missing husband; rather, the ijtihad of expert scholars is the source of this ruling.
The Companions, the Tabiin and the mujtahid Imams differed when forming opinions on this matter. The view of Hazrat Umar, Hazrat Uthman, Hazrat Abdullah ibn Umar and Hazrat Abdullah ibn Abbas (RA) is that the wife of a missing person should be instructed to wait for four years. Said ibn al-Musayyab, al-Zuhri, al-Nakhai, Ata, Makhul and al-Shabi also held this view. Imam Malik (RA) adopted it, and Imam Ahmad ibn Hanbal (RA) also inclined toward it.
On the other side are Hazrat Ali (RA) and Hazrat Abdullah ibn Masud (RA). Their view is that the wife must remain patient until the missing person returns or news of his death becomes known. Sufyan al-Thawri, Imam Abu Hanifa and Imam al-Shafii (RA) adopted this view. For the wife’s period of waiting, Imam Abu Hanifa (RA) laid down the principle that she should wait for her husband’s return as long as people of the missing man’s age remain alive in his settlement or country. Thereafter, each expert scholar determined the maximum human lifespan according to his own estimate and said that the wife should wait for the return of her missing husband until the age that a person can reach at most. Thus, if a man goes missing at the age of thirty, according to some his wife must wait until he would be ninety, according to others until sixty, and according to others until fifty or at least forty. Some hold that the normal human lifespan is 120 years, while others set it at 100, 90 or 70 years. Thus, a woman who is now twenty years old would, according to the opinion of the scholar granting her the greatest concession, have to wait for her missing husband’s return until she reaches the age of sixty. Only then would she be permitted to remarry.
When, in this matter, we return to the fundamental instruction of the Noble Quran, the view of Hazrat Umar (RA) and his followers appears to be correct. It is most consistent with the spirit, justice, balance and nature of Islamic law. In the Noble Quran, we find that alongside permission to retain up to four wives, the following command is given:
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“Do not incline so completely toward one wife that you leave another suspended.” — Surah al-Nisa, 4:129
This verse shows that the Noble Quran does not approve of leaving a woman suspended or separated. If the Quran does not approve of this while the husband is present, how could it approve of it when he is missing? Elsewhere, husbands are commanded that if they take an oath of abstinence from their wives, they may do so for no more than four months. Thereafter, they must divorce them. Here again, the spirit of Islamic law appears to be that a woman may not be kept separated from her husband for so long that it causes her harm or leads to violation of the limits prescribed by Allah. It is stated again: ***************** Its clear purpose is that marital relations should contain no signs of harm or oppression. And it is clear that instructing the wife of a missing person to wait for a long period entails boundless suffering. Also worthy of attention is the verse stating that if there is fear of violating the limits prescribed by Allah, there is no blame in seeking khula.
Here, preservation of the limits specified by Allah has been given greater importance than keeping the marital relationship intact. And who can deny that it is extremely difficult for a woman whose husband has been missing for years to remain within the limits prescribed by Allah? If one reflects deeply on the principles, wisdom, rationale, underlying meaning and philosophical perspective of all these laws, it becomes perfectly clear that it is not permissible to order the wife of a missing person to wait for an unknown and indefinite period and to leave her suspended.
13. The Maliki School’s Law Concerning a Missing Person
For these reasons, the scholars of the Hanafi school have preferred to issue fatwas concerning a missing person in accordance with the ruling of the Maliki school. We must therefore examine the Maliki school’s detailed ruling on this matter. According to the Maliki school, a missing husband may be in three different situations, and the ruling differs in each case. They are as follows:
1. The missing person has not left enough property to cover his wife’s maintenance expenses. In this situation, the judge will not order her to wait for her husband; rather, after assessing the circumstances, he will either divorce her by his own authority without requiring her to wait, or grant her the right to pronounce divorce upon herself. [For the purpose of separation, instead of the judge himself pronouncing divorce, it is better rather to allow the woman to pronounce divorce upon herself, because the Noble Prophet,। may blessings and peace be upon him, told Barirah, (may Allah be pleased with her,) that (she)-could say:
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“You are your own master.। You have the option of living with your husband or of leaving him and becoming separate from him. The choice is yours .”।–The author।] The Shafi’i and Hanbali schools also support the Maliki school in this matter, because in their view, the absence of any provision for maintenance is sufficient grounds for separation.
2. The missing person has left wealth behind, but his wife is young, and if she is kept waiting for a long time, there is a risk that she may become involved in sinful acts. In this situation, the judge will instruct her to wait for her husband to return for one year, six months, or whatever period he considers reasonable. In this matter, the Hanbali school is similar to the Maliki school; indeed, in difficult circumstances, both schools permit dissolving the marriage without requiring her to wait. Furthermore, when there is a risk of involvement in sin, it is not necessary for the wife herself to say, ‘Free me from this husband’s bond, otherwise I will commit fornication.’ Rather, it is for the qadi to consider how old the woman who has brought the complaint of her husband’s disappearance is, what kind of environment she lives in, and how long she waited for her husband before bringing the complaint. By considering these matters, the judge may himself determine by ruling how much the waiting period should be shortened in order to preserve her morals and character.
3. The missing person has also left wealth behind, and there is no fear that his wife will become involved in sinful acts; in this case too, the legal question has four aspects.
First: If the missing person has disappeared in a Muslim country or in a country that has communication with the civilized world and where it is possible to search for him, his wife shall be instructed to wait for up to four years.
Second: If he has gone missing on a battlefield, his wife must wait for one year after every possible effort has been made to search for him.
Third: If he has gone missing during a riot or conflict in his own locality, every possible effort must be made to search for him after the riot has ended. Therefore, without waiting, she should be permitted to observe the waiting period for death—namely, an iddah of four months and ten days.
Fourth: If he has gone missing in an uncivilized settlement that has no communication with the civilized world and where there is no feasible opportunity to search for him, his wife must wait for the length of time that a person of average standing could be expected to live. There is disagreement regarding the probable age limit for such a person. Some have said eighty years, while others have said seventy-five years. But, as we discussed earlier, this applies only when the husband has left sufficient property for his wife’s maintenance and there is no fear that she will become involved in sin. Hanafi scholars generally follow the Maliki school in their fatwas. However, they disregard the conditions connected with it. In the case of a missing husband, they issue a fatwa that she must wait four years under all circumstances. But this is not correct. Especially in the present age, when countless causes and means of moral collapse have come into existence, insisting that every wife wait four years is contrary to the farsightedness of the Sharia. Today, the powerful system of discipline that existed in the early age of Islam is no longer present in Islamic society. The customs opposed to Islam have freed people from the restrictions that Islam established to keep sexual desire under control. There is no way for people in cities and settlements to avoid nude pictures, novels and storybooks that titillate sexual feelings, sexually stimulating songs on radio and television, and the like. Moreover, the laws in force in the country have legalized fornication and adultery. Furthermore, because the Shariah injunction concerning the veil is not effectively implemented, the unrestricted mixing of non-mahram women and men—those between whom a marital relationship could be established—has created such extensive means of arousing sexual feelings that it has become extremely difficult for anyone to control his own desires and live a life of piety and religious devotion.
In such circumstances, if a young woman, after spending two or three years waiting for her missing husband to return, is compelled to seek the court’s help, how reasonable can it be for the court to order her to wait another four years? This is such a harsh directive that it is harmful not only to the woman but may also have harmful repercussions throughout society. Our advice, therefore, is that all the conditions of the Maliki school concerning a missing person should be incorporated into the law. The wife’s age, her circumstances, and the length of time she waited after her husband’s disappearance before approaching the court should also be included among the factors to be considered in the relevant legal provision.
14. The Ruling When the Missing Person Returns
What is the ruling if the missing husband returns after the period fixed by the court for the wife to wait has ended? This related question also deserves discussion. The decision of Umar (RA) is that if her husband returns before the woman’s second marriage, she remains his wife. But if he returns after her second marriage, then whether or not the second husband has consummated the marriage with her, the first husband has no right over her in either case. Imam Malik (RH) accepted the view of Umar (RA) as evidence in his Muwatta, and the fatwa of the Maliki school is given according to this view.
According to the decision of Ali (RA), the first husband will regain his wife in every circumstance, regardless of whether she has been alone with the second husband or even given birth to a child. Moreover, if the marriage has been consummated, the woman’s dower must be recovered from the second husband. Hanafi scholars adopted this view and said that Umar (RA), and later Ali (RA), reverted to this decision. However, according to Imam Malik (RH), it has not been established that Umar (RA) withdrew his own view.
The decision of Uthman (RA) is that if the woman has entered into a second marriage and then the first husband returns, he will be asked: do you want your wife back, or do you want the dower back? If he prefers to take back the dower, or to have it waived, the woman will remain with the second husband. But if he insists on taking his wife back, the woman must separate from the second husband and observe the waiting period following divorce. She will then be handed over to the first husband, and the dower must be recovered from the second husband. Some reports also mention a similar view from Umar (RA), but according to Imam Malik (RH), this has not been established.
In our view, of these three decisions, the decision of Umar (RA), which Imam Malik (RH) accepted as evidence, is the best. It is clear that if the first husband’s rights remain in force even after the woman has entered into a second marriage, what man would want to marry such a woman? By marrying her, the second husband would have to spend his entire life in uncertainty, never knowing when her first husband might return and take her away from him! He would lose his wife and also have to pay the dower, and the situation would become even more tragic if a child had been born. After the mother’s departure, the child would be cast into an uncertain situation.
Imposing such a condition entails immeasurable harm for women. This means that even after enduring a long and unbearable period of waiting, her ordeal has not ended. Even after obtaining a certificate of release from the court, a chain still hangs from her feet, and she must spend her entire life in a suspended or waiting state.
15. Li’an
Whether the husband explicitly accuses his wife of adultery or says, concerning a child, “He is not his child”—in both cases li’an becomes obligatory. A case of this kind was brought before the Prophet (SAW), and he addressed both parties, saying three times:
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“Allah knows very well that one of you two is lying. Will either of you, then, repent?”
When both refused to repent, he first required the husband, in accordance with the Qur’anic instruction, to swear four times that he was truthful regarding the accusation he had made against his wife. The fifth time, he was made to swear that if he was lying, Allah’s curse would be upon him. Then the woman was likewise made to swear four times that the accusation brought against her was false. The fifth time, she was told to swear that if the accusation was true, Allah’s curse would be upon her. Then the Prophet (SAW) said:
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“This is the way separation takes place between every couple who perform li’an until the Day of Resurrection. After this separation, they can never be reunited.”
The husband requested that the property he had given her as dower be returned. In response, the Prophet (SAW) said:
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“You will not get your property back. If you are truthful in accusing her, then it was in exchange for this property that you made her private parts lawful to you. And if you have falsely accused her, then you have even less right to recover the property.”
The following laws can be derived from this decision of the Messenger of Allah (SAW):
1. Li’an must take place before a qadi. A man and woman cannot perform li’an before each other or before their relatives; even if they do so, it cannot result in separation.
2. Before conducting li’an, the judge shall give both the man and the woman an opportunity for either of them to confess. Li’an will be conducted only when both remain firm in their respective statements.
3. After li’an has been completed by both parties, the judge shall declare that separation has been effected between them. According to the majority of scholars, separation occurs automatically through li’an. But according to Imam Abu Hanifa, the ruler’s decree is essential for separation. All the reliable hadiths that have reached us concerning this issue support the view of Imam Abu Hanifa (RH). For in every such case, the Prophet (SAW) announced the separation after the li’an had been completed. This means that the Prophet (SAW) did not consider li’an alone sufficient for separation.
4. Separation through li’an is permanent. If the two later agree to remarry, this is in no way possible. The law concerning tahlil will not apply in this case, as mentioned in the *********** verse.
5. Dower is not annulled by li’an. Whether or not the husband’s accusation is in fact true, he must pay the dower in either case; and if he has already paid it, he has no right to demand its return.
If, after accusing his wife of adultery, the husband refuses to perform li’an, then according to the majority of scholars, the criminal punishment for slandering her (eighty lashes) will be imposed on him. According to Imam Abu Hanifa (RH), he is not subject to that criminal punishment; rather, he will be imprisoned. Similarly, if the wife refuses to perform li’an after the husband has done so, then according to Imams Shafi’i, Malik, and Ahmad (may Allah have mercy on them), she will be stoned to death, while according to Imam Abu Hanifa (RH), she will be imprisoned. In this matter, the school of Imam Abu Hanifa (RH) is based on the soundest and most farsighted position. However, in this subcontinent, in the context of pre-Partition India, there is no opportunity to punish someone for refusing to perform li’an. Therefore, for the time being, the appropriate framework for implementing the Shariah ruling should be that if the husband refuses li’an, the wife should be given the right to bring a claim for defamation. If the wife refuses li’an, she should be deprived of her dower. This arrangement shall remain in force only so long as a non-Muslim government rules over us and we remain unable to implement the Islamic penal code.
16. Pronouncing Three Divorces at One Time
Separating from one’s wife by pronouncing three divorces at one time is a grave offense according to the clear instruction of the Qur’an. The only disagreement among the scholars of the ummah concerning this issue is whether such a triple divorce counts as one revocable divorce or as three irrevocable divorces. But there is no disagreement among them that it is an innovation and a serious sin. They all acknowledge that pronouncing three divorces at one time contradicts the procedure for divorce prescribed by Allah and His Messenger. It also undermines the caution embodied in the rules of the Shariah. It is reported in a hadith that a man pronounced three divorces upon his wife at one time. The Messenger of Allah (SAW) stood up in anger and said:
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“Is he playing with the Book of the Almighty Allah while I am still present among you?”
Other hadiths show that the Messenger of Allah (SAW) regarded this as a grave sin. Regarding Umar (RA), the hadith reports go so far as to say that whenever someone came to him after pronouncing three divorces upon his wife at one time, he would flog him. This proves that punishment may also be prescribed for such an act.
In our time, it has become a common practice for people, under the influence of a momentary fit of anger, to hastily pronounce three divorces upon their wives. Then, filled with shame and remorse, they search for tricks and devices within the Shariah. Some falsely swear an oath and deny having pronounced the divorce at all. Others seek a way to arrange halala. Still others conceal the matter of the divorce and maintain their former relationship with their wives. Thus, in order to escape the consequences of one sin, they become involved in countless more sins. To prevent this wrongdoing, such strict restrictions should be imposed on dismissing a wife through three divorces at one time that people would not dare commit such an act. One possible measure, for example, would be to give a woman who has been divorced three times at one time the right to bring a compensation claim before the court, with the compensation amounting to at least half of the dower.
Many other measures can also be devised to prevent this wrongdoing. Our scholars and legal experts can determine them through careful consideration. Furthermore, this issue should be widely publicized among the people as an extremely reprehensible act. Then, since people become involved in it out of ignorance, widespread dissemination of the proper procedure may make them cautious.
Final Word
This book has discussed in detail the objectives and fundamental principles of Islamic matrimonial law, and has attempted, in the light of the Book and the Sunnah, to present solutions to the issues that have currently created problems and difficulties for Indian Muslims. I do not claim that whatever I have been able to understand of Islamic law is necessarily correct. Nor am I adamant that the suggestions I have offered for resolving these problems must be accepted exactly as they are. In any case, human judgments are capable of being both wrong and right. No person can claim regarding his own opinion that he is above error and that following it is as obligatory as following Allah’s revelation.
My sole purpose in this lengthy discussion, investigation, and review is to explain the principles of Islamic matrimonial law that I have been able to comprehend from the Glorious Qur’an and the Sunnah of the Messenger of Allah (SAW), and, by examining the related issues derived from these principles by the great Companions and the mujtahid Imams, to formulate such subsidiary issues as may, in our view, be useful and appropriate in light of the needs of the present age. It is now the task of the scholars, thinkers, and people of learning to consider my proposals and advice with an open outlook, employing reflection and farsightedness in matters of the Book and the Sunnah. If there are any errors in them, may they correct them; and if they find anything correct, may they not reject it merely because, unfortunately, its author was born in the fourteenth Hijri century rather than the fourth Hijri century.
Finally, I wish to briefly express my opinion concerning the drafts of law prepared by certain persons in Hyderabad and British India. [Here these drafts’ only content is being discussed, whether the legislative council itself has any Islamic law to pass the right to possess or not– this is what my discussion is not about। Even if this council an Islamic perspective before it keeping the law passes will, it letter for letter Islamic Shariah in accordance with be that does not matter, whatever may be it a Shariah law can be not।] In my opinion, these drafts are incomplete and inadequate for the needs of the age. The harm and disruption caused by the defects of Anglo-Mohammedan Law, the centuries-old outlook of non-Muslim courts, and the procedures followed by the present judicial system cannot be removed through brief drafts of this kind. If it is decided in certain specific matters that those matters will be settled according to Maliki fiqh law instead of Hanafi fiqh, or if brief explanations are given of some relevant legal issues, judges who have no comprehensive knowledge of Islamic law and the related rulings of the various schools of jurisprudence, and whose minds are haunted by the ghost of Anglo-Mohammedan Law, will not be able to reach the correct decision with its help.
To rectify this troubled situation, it is absolutely necessary to prepare a comprehensive compilation of laws, particularly concerning marital matters. This is what I have been saying throughout the pages of this book. It is not such an easy task; rather, it demands time and effort. Nor is it easily accomplished by one person. For this purpose, a selected group of capable scholars must sit down with sufficient time at their disposal and with undivided attention. They must undertake the work with the understanding that they cannot discharge themselves of their responsibility merely by copying, word for word, the detailed matters from the books of earlier experts. Rather, because they are qualified to find correct solutions to the problems of the Ummah, it is their duty to provide such an interpretation of Islamic law that the true objectives of the Shariah may be fulfilled and the responsibility of properly safeguarding the nation’s faith, religious commitment, morals, character and all other affairs may be duly carried out.
Appendix 1
A Highly Important Fatwa
A man from Delhi sent us a printed fatwa. Its subject matter is important in itself. Our distinguished scholars seem inclined to resolve this matter in an un-Islamic manner. For this reason, the importance of the matter has increased considerably. This fatwa and its answer are given below.
The following questions require prompt, authoritative and reasoned answers from muftis who are proficient in Islamic knowledge and deeply learned in the Shariah, in light of the Qur’an, Sunnah and fiqh:
Question: 1. If a non-Muslim judge, or a non-Muslim arbitrator or panchayat, annuls the marriage of a Muslim man and woman in accordance with Islamic law, or if a non-Muslim judge, arbitrator or panchayat grants a wife talaq on behalf of her husband when the husband’s oppression of her has been proven, as a Muslim judge has the right to do in certain cases, will the marriage be annulled and will the talaq take effect upon the wife? Will the wife, according to the Shariah, acquire the right to regard the talaq given by a non-Muslim person and the annulled marriage as valid according to the Shariah, complete her iddah, and then marry another Muslim, or do so in any other circumstances?
2.If the answer to the above question is negative—that is, if the talaq given and the annulment of the marriage by a non-Muslim person are not acceptable in the Shariah, and the woman remains married to her husband even after the talaq and annulment issued by the non-Muslim person—then, if in this situation the woman marries another man, and the second man also knows that she obtained talaq through a non-Muslim judge, arbitrator or panchayat, will this marriage be considered invalid? Despite her marriage to the second husband, will it be haram for them to maintain a marital relationship, and may both of them be regarded, from the perspective of the Shariah, as fornicators?
3.If, while her marriage to the second husband is considered invalid, she gives birth to a child from this second union, will that child be considered born of adultery? Will the child be deprived of inheriting the property left by the second man?
Kindly provide authoritative answers to these questions in numbered order and oblige us accordingly, etc.
Answer:The fundamental flaw in this set of questions is that it asks only about non-Muslim judges, arbitrators and panchayats. Rather, the question should have been whether Allah’s law recognizes as permissible the judicial system that people, turning away from Allah, have established on their own, and whose judgments are based on man-made laws. An additional related flaw is that the questions concern only the annulment of marriage and separation. In principle, however, the nature of these matters is no different from that of other matters.
Not only in matters of marriage and divorce, but in every matter, the decisions of non-Muslim courts are neither acceptable nor supportable from the perspective of Islamic Shariah. Islam does not recognize any state established independently, according to its own whims, without connection to Allah, the Great King of Kings. Islam likewise does not recognize any law made according to the wishes of an individual or a group of individuals. Islam does not even acknowledge the right of courts established by rebels against Allah, without the permission of the true Owner and Lawgiver, within the state belonging to Him, to hear disputes or deliver judgments. The status that, from the perspective of British law, a court established under British rule without the permission of the Crown (the king or queen) may have is precisely the status that such courts have from the perspective of Islam. Just as, under English law, the judges, officials, lawyers, and those who settle disputes through them would be regarded as rebels, criminals, and deserving of punishment, similarly, from the perspective of Islam, a judicial system established within the dominion of the Owner of the heavens and the earth without His authority, and in which cases are decided on the basis of laws authorized by someone else instead of His authorized law, is regarded as rebellious, criminal, and deserving of the severest punishment. Its judges are criminals, its officials are criminals, its lawyers are criminals, those seeking judgment before it are criminals, and all its laws and regulations are utterly rejected. Even if, in a particular case, their decision happens to conform to Islamic Shariah, it is nevertheless fundamentally erroneous, because rebellion lies at its foundation. Suppose that they cut off a thief’s hand, carry out flogging or rajm (stoning to death) on an adulterer, and impose a criminal penalty on a drunkard; even then, the thief, adulterer, and wine-drinker will not be purified of their respective crimes by undergoing punishment, and the court itself will still be found guilty of the crime of cutting off someone’s hand, flogging or stoning him without any right. For the authority it exercised over Allah’s subjects was not a right it possessed under the law given by Him. [In this connection concerning Burma and Malaya’s being under Japanese rule were maintained when the military officers who ‘the Independent Indian State’ and ‘Azad Hind Fauj’ had formed and, against whom the government filed in 1945 at the end of the year and in 1946 at the beginning of the year early on the cases filed against them and, their proceedings will be helpful for gaining a fuller understanding of them especially the, cases of Shah Nawaz,, Sehgal and Dhillon in which India’s Advocate General in seeking their trial delivered a speech which he gave is worth reading attentively and carefully। because in this speech the so-called rebels’ against the Indian government’s legal status and position were described and that, in essence is the legal status of the dominion of the Great Lord of the Worlds against all genuine and real rebellions.।–The Author।]
Even when a nominally Muslim judge presides, the Shariah status of this court will remain as before. A person who, having obtained the authority to enforce decisions from an Allah-defying government, hears lawsuits, and a person who issues orders on the basis of man-made laws, is not a Muslim, at least not as a judge; rather, he himself is regarded as a rebel. How, then, can his order escape being deemed void?
When a democratic state and government exist and Muslims participate in them—whether Muslims are a minority or a majority in that democratic state, or all its residents are Muslim—and they have established a system of government based on godless democratic principles, the legal position will likewise remain as before. In Islam’s view, a state founded on the philosophy that “the people of the country are the sovereigns and, free from the constraints of the laws given by Allah, have the power to make laws for themselves” has exactly the status of subjects of a king rebelling against him and establishing their own sovereign state in opposition to him. Just as that king’s law cannot recognize this state as legitimate, Allah’s law likewise never recognizes a democratic state of the aforementioned kind. The judiciary established under such a democratic government, whether its judges are Muslims or non-Muslims by ethnicity, will also be regarded as void in Islam’s view.
The entire Qur’an is evidence supporting the correctness of everything discussed above. Nevertheless, since the questioner has requested an explanation in the light of the Book and the Sunnah, only a few verses from the Holy Qur’an are being presented:
First: According to the Qur’an, Allah alone is the sovereign. Creation belongs to Him. Therefore, the natural right to rule belongs solely to Him. In His kingdom, the issuing and enforcement of anyone else’s command over His creation, other than He Himself, is fundamentally wrong. [However, if someone attains the status of His caliph or representative and governs the state and settles all matters according to the law He has given, that is a separate matter. This will be discussed later.—The author] The word of Almighty Allah:
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“Say: O Allah, Owner of all kingdoms and empires! You grant sovereignty to whomever You will, and take it away from whomever You will.” — Surah Aal Imran: 26
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“He is your Lord; sovereignty belongs to Him.” — Surah Al-Fatir: 13
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“He has no partner in His kingdom.” — Surah Bani Isra’il: 111
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“Therefore, the authority to issue commands rests solely in the hands of Almighty Allah.” — Surah Al-Mu’min: 12
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“He has made no one a partner in His sovereignty.” — Surah Al-Kahf: 26
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“Beware! Creation belongs to Him, and the command shall also be His.” — Surah Al-A’raf: 54
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“People ask, ‘Do we have any share in issuing commands?’ Say: ‘The authority to issue commands belongs exclusively to Allah.’” — Surah Aal Imran: 154
Second: On the basis of this principle, the right to make laws has been completely taken away from human beings. For human beings are created beings and subjects, servants and those bound by commands. Their only duty is to obey the laws made by Allah, the Supreme Sovereign. [The matter of deriving legal rulings from the laws given by Allah and writing detailed laws of jurisprudence through ijtihad and research is a different matter। It is not being discussed here। In matters regarding which Allah and His Messenger (peace be upon him) have given no clear instruction, believing people have the right to make laws while taking into account the essence of the Shariah and the spirit of Islam। For the direct implication of there being no clear instruction in such matters is that, the legal right to determine laws, rules and principles concerning them has been granted to believing people।–The author।] A person or institution that makes laws independently instead of following the law given by Him, or recognizes laws made by someone else and adjudicates accordingly, is a Taghut, a rebel, and one who stands outside obedience to the truth. The person who seeks a judgment under this law and the person who accepts that judgment are also guilty of the crime of rebellion.
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“Do not fabricate lies with your tongues, saying about the things you describe with your mouths, ‘This is lawful and this is unlawful.’” — Surah An-Nahl: 116
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“Follow what has been sent down to you from your Lord, and do not follow, besides Him, other guardians (officials created by yourselves).” — Surah Al-A’raf: 3
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“All those who do not judge according to the law made by Allah are disbelievers.” — Surah Al-Ma’idah: 44
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“O Prophet! Have you not seen those who claim to believe in the guidance sent down to you and to the prophets before you? Yet they wish to have all their affairs judged through the Taghut, although they have been commanded to rebel against the Taghut (the Allah-defying power) (that is, they have been commanded not to obey the Taghut’s instructions).” — Surah An-Nisa: 60
Third: Only the system of government and judiciary established on the basis of the laws and regulations that Almighty Allah sent for humankind through His prophets is correct and recognized in Allah’s earth. This is called the Caliphate.
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“We sent no messenger except for the purpose that he should be obeyed under Allah’s command.” — Surah An-Nisa: 64
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“O Prophet! We have sent down the Book to you with the truth so that you may judge among the people in the light of the guidance Allah has shown.” — Surah An-Nisa: 105
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“Conduct the affairs of state among them according to the guidance that Allah has sent down, and do not follow their evil desires. Beware! Let them not involve you in turmoil and disorder and turn you away from any part of what Allah has sent down to you. ….. Do they seek the rule of the Age of Ignorance?” — Surah Al-Ma’idah: 49–50
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“O Dawud! We have appointed you as a caliph in the earth. Therefore, rule among the people with justice and do not follow your own desire; otherwise, you will be led astray from Allah’s path.” — Surah Sad: 26
Four. On the other hand, any state system and judicial system established on a foundation other than the ordinances brought by His prophets and messengers from Allah, the Lord of the worlds, shall be regarded as rebellious state and judicial systems. However varied the forms of such state and judicial systems may be, all their activities, without exception, shall be regarded as baseless and invalid. Their government and judgments have no legitimate basis at all. When Almighty Allah, the true Owner, has granted them no charter whatsoever, how can they be a legitimate state, a legitimate government, and a legitimate court? [charter or credential means in our view, the one who accepts Allah as the King of kings,, the Sovereign Holder of authority and accepts himself as His caliph or representative (of sovereignty the right not) as accepting it, the prophets–and messengers as His messengers and the heavenly Book as His Book accepting it as such and works under the divine authority of the Sharia under which he remains working —only these types of state, government,, and judicial system are by Allah the Exalted from His charter-granted authority.। The Qur’an itself Majid contains this charter given as follows: ******************** ( According to Allah’s revealed law–and injunctions, according to the people among them govern the state and, give judgment among them)।–—The Author।] Whatever they do is regarded as entirely invalid from the perspective of Allah’s law. The believing community—that is, Allah’s faithful subjects—may practically acknowledge its existence as an external fact, but it cannot recognize it as a means of legitimate administration or as a legitimate judicial system.
It is not their duty to obey those who rebel against Allah, their true Master and Lawgiver, nor to seek judgment from them concerning all their affairs. Whoever does so is expelled from the community of the faithful, despite claiming Islam and faith. If a state or government regards a group as rebels, yet recognizes the rebels’ authority over its own subjects as legitimate and permits its subjects to obey the commands of that government, this is plainly contrary to reason and conscience. The word of Almighty Allah:
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“(O Muhammad!) Say to them: Shall We tell you who are the greatest losers in respect of their deeds? They are those whose efforts in the life of this world have gone astray from the right path, while they think that they are doing what is right. They are the ones who rejected the Signs of their Lord and denied that they would appear before Him. Thus, their deeds became fruitless, and on the Day of Resurrection We will attach no importance to them.” — Surah al-Kahf: 103–105
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“These were ‘Ad, who rejected the Signs of their Lord, disobeyed His messengers, and followed the command of every stubborn, powerful enemy of the true religion.” — Surah Hud: 59
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“And We sent Moses with Our Signs and clear authority to Pharaoh and his chiefs. But they followed Pharaoh’s command, although Pharaoh’s command was not founded on truth.” — Surah Hud: 96–97
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“Do not obey anyone whose heart We have made heedless of Our remembrance—that is, of the awareness that I am his Lord—and do not follow one who follows his evil desires and whose conduct is transgressive.” — Surah al-Kahf: 28
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“(O Prophet!) Say: My Lord has forbidden all indecency, both open and hidden, sinful deeds, and transgression against the truth. He has also forbidden you to associate with Allah anyone for whom He has sent down no authority.” — Surah al-A‘raf: 33
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“Those whom you worship besides Allah are nothing but names that you and your forefathers have invented. Allah has sent down no authority in support of them. The authority to command belongs only to Allah. He has commanded you to worship none but Him.” — Surah Yusuf: 40
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“Whoever opposes the Messenger after the right path has become clear to him and follows a path other than that of the believers, We shall make him follow the direction he himself has chosen and cast him into Hell. What an evil destination!” — Surah al-Nisa: 115
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“No, O Muhammad! By your Lord, they will never be believers until they accept you as judge in all disputes among themselves.” — Surah al-Nisa: 65
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“When they are told, ‘Come to what Allah has revealed and adopt the way of the Messenger,’ you will see the hypocrites turning away from you in reluctance and passing by.” — Surah al-Nisa: 61
“And Allah has not left the disbelievers any way against the Muslims.” — Surah al-Nisa: 141
These are the Muhkam verses of the Qur’an Majid. [Strong, complete and firm things ‘are called’ Muhkam .। ‘Muhkam verses’ means those verses whose language is extremely clear, whose meaning in determining there is no doubt or uncertainty’s scope ., whose words’ meaning, import and purpose and objective clearly can be understood ., Those verses whose meaning in accepting them there is interpretive smoke entanglement for anyone only with great difficulty could find। . These verses themselves are the Qur’an’s principal foundation that is the Qur’an the purpose for which was revealed . That through these Muhkam verses alone is fulfilled .। Through these verses the people of the world of the world were called toward Islam . invitation was made ., warning–messages and advice were spoken and given, . misguidance was refuted and the true path’s explanation was given .। In this kind of verse are the fundamental principles of the religion principles described and set forth। In it creed–and belief, worship, morality, responsibility, duty and commands–and prohibitions related rulings have been described .। Therefore the person who seeks the truth and wishes to know in order to return to the Qur’an to return and wants to know which, path he should follow and which path he should follow not– his thirst to quench for the Muhkam verses alone are his shelter। Naturally these verses upon his attention।will be focused and from these he will derive the greatest benefit to try .।–Tafhimul Qur’an, 1st volume, Surah Al Imran: 5 no. note।–Translator।] There is no room for any doubt or uncertainty regarding the significance of these. If the central creed upon which Islam’s moral and social system has been founded had remained doubtful, then the revelation of the Qur’an Majid itself—God forbid—would have been pointless. For this reason, the Qur’an has described the Muhkam verses in such clear and decisive language that there is no room for disagreement concerning them. After such clear and comprehensive exposition by the Qur’an, we have no need whatsoever to turn to Hadith and fiqh.
Therefore, when the entire edifice of Islam is founded on the principle that anything for which Allah the Exalted has sent down no warrant is baseless and worthless, and that whatever is established without dependence on Allah’s warrant is entirely void in legal status, there is no need to ask, concerning any particular matter, whether the judgment of the judiciary of a godless state can be effective from the perspective of Shariah. Is it ever asked concerning a child born of illicit sperm and acknowledged as such whether his body and hair are also illicit? When a pig is entirely forbidden, can the question ever arise concerning a piece of its meat whether it is forbidden? Thus, to ask, regarding the annulment of a marriage, the separation of husband and wife, and the occurrence of divorce, whether the judgment of an anti-Islamic court can be effective is proof of ignorance of Islam. An even greater proof of ignorance is that the question has been asked only about non-Muslim judges. It seems that, in the questioner’s view, the judgment of a nominal Muslim who is serving as an administrator of an anti-Islamic court can surely be effective! Yet calling a piece of pork a piece of mutton can neither actually turn it into mutton nor make it lawful!
There is no doubt that, once this fundamental principle of Islam is accepted, life for Muslims under a state and government opposed to Allah becomes difficult. But Islam’s eternal principles cannot be altered in order to make their lives easier. If Muslims wish to live more easily under a non-Islamic state, they have no right to alter Islam’s principles—or, in other words, to turn Islam into something non-Islamic. Of course, they have the option of becoming apostates. There is nothing to prevent them in that regard. They may abandon Islam enthusiastically and adopt any easier way of life. But if they wish to remain Muslims, the correct Islamic course is not to search for stratagems and excuses, conflicting with Islam’s fundamental principles, in order to create an easier way of living in a non-Islamic state. Rather, only one path is open to them: wherever they may be, they should devote all their strength and effort to changing the state and government’s outlook and reforming the principles by which the state and government are administered.
Appendix 2
The Laws of Divorce and Separation in Western Society
****************** “A thing is known by its opposite.” The detailed account of Islamic matrimonial law given in the preceding pages cannot enable one to fully appreciate the greatness and superiority of this law until a comparative study is made of the opposing laws prevailing in various countries of the world. For these are currently being claimed as advanced legal systems. This comparative study will also show how badly people stumble when, disregarding Allah’s guidance and direction, they set themselves up as their own lawmakers.
One important feature of Islamic law is that equality, justice, and balance exist throughout its fundamental principles and basic directives, to their very limits. On the one hand, it keeps the higher aims and objectives of morality before it; on the other, it does not disregard human weaknesses by nature. On the one hand, it considers social, that is, overall, welfare; on the other, it does not allow the rights of the individual to be trampled. On the one hand, it considers actual conditions; on the other, it does not dismiss any possibility that may at some time occur in the real world. In short, it is such a balanced legal system that none of its principles or directives tends toward excess. In formulating laws, Islam has given full importance to all the aspects that must be considered, not merely from a philosophical perspective but also in practical reality, and has established such a correct balance among them that it has not undesirably tilted toward one side or neglected the other. This is why, for thirteen hundred years, this legal system has remained effective through different eras, various social and cultural conditions, and different stages of knowledge and research, among nations possessing diverse characteristics. Nowhere has any individual or collective experience or practice found any of its fundamental directives erroneous or in need of correction. Not only that, despite the utmost efforts of human thought, it has not succeeded in choosing an alternative to any part of it that could come even close to it in justice, balance, and excellence.
The qualities and characteristics observed in Islamic law are solely the result of the infinite knowledge and foresight of Almighty Allah. Because of its inevitable obstacles and inherent limitations, human beings can never comprehend every aspect of a problem. They cannot give equal attention to the present and the future. It is impossible for them, while giving equal consideration to actions and power, fully considering the overt and hidden characteristics of their own nature and that of all other people, becoming completely free from the influence of their surroundings, and entirely purified of their emotional tendencies, inclinations, intellectual weaknesses, and rational deficiencies, to formulate principles that in every condition and every age can correctly accord with justice and fairness.
For this reason, the laws based on human thought do not contain a proper balance. In some places, imbalance appears in their outlook; in others, incapacity is evident in considering the various aspects of human nature; elsewhere, justice is not done in determining people’s rights and duties; and in still others, injustice is committed in defining the limits between the individual and the collective and distributing rights. In short, with every new experience, changing circumstance, and transformation of each age, the weaknesses of these human-made laws become as plain as daylight. Consequently, people are compelled either to alter these man-made laws or, while remaining attached to them in belief, to free themselves in practice from their binding force.
The fundamental difference between the law given by Allah and laws made by human beings has become so evident even today that everyone except the blind and the night-blind can see it. Until yesterday, because of bigotry or ignorance, the directives and principles of Islamic law were recklessly attacked, while the philosophies and principles of man-made law were proudly presented in opposition to them. Today, without any debate or argument, the undeniable testimony of actual events alone has established—and continues to establish—that whatever Islam taught was correct. In contrast, every course laid down by man-made law has proved erroneous and unworthy of being followed. Although in the realm of imagination it seems very brilliant, and the tongue is still unwilling to acknowledge its failure, in practice the world is tearing apart these laws, which until yesterday it regarded as utterly sacred and beyond correction. Little by little, the world is returning to the principles and laws prescribed by Islam—but only after causing many calamities.
The subject of divorce may serve as an example. Until a few years ago, how much the Christian world mocked Muslims over divorce, and many influenced Muslims, dying of shame, replied that declaring the severing of the sacred relationship between husband and wife improper and providing no arrangement in law for divorce, khula, annulment, or dissolution of marriage was not a rational act on the part of Christians; rather, it was the result of an imbalance in human thought. It contains no benefit for moral character, humanity, or social order; rather, the means of destruction are concealed within it. How magnificent was the statement of Jesus (peace be upon him): “What Allah has joined together, let no man separate.” —Matthew 19:6.
But the Christians failed to understand the purpose of the Prophet’s statement and, instead of accepting it as moral guidance, adopted it as the foundation of matrimonial law. What was the result? For centuries, the Christian world continued to resort to stratagems, deceit, and fraud against this law, which was impractical in reality. Eventually, the bad habit of violating the law developed so far that, in most cases, they began openly violating even the moral boundaries that were more sacred than the matrimonial relationship. At last, people were compelled to introduce some partial and defective amendments into this law. They had mistakenly regarded it as divine law. But this reform was undertaken only after the habit of violating the law had destroyed, in the hearts of the followers of Jesus (peace be upon him), all remaining respect for anything imposed by Allah. The result was that, through this partial and defective reform, a great flood of divorce, annulment, and dissolution of marital relations began in the Christian world. Under its horror, the most sacred walls of the family system began to crumble. In England, where only 166 divorces took place in 1871—that is, people separated one of every 79 relationships joined by Allah—in America, where there were 35,000 divorces in 1886, 183,000 sacred relationships were severed in 1931. In France, nearly one out of every 15 marriages now ends in divorce. The situation in the other Western countries is more or less the same.
A teaching almost similar to that given by Jesus (peace be upon him) is also found in the Noble Qur’an. The Qur’an says:
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“Those who break Allah’s covenant after affirming it, sever the relationships Allah has commanded to be maintained, and spread corruption on earth—it is they who are the losers.” —Surah al-Baqarah: 27
With the aim of creating hatred for the hard-hearted attitude of the Jews and the prevalence of divorce, Jesus (peace be upon him) said: “Whoever divorces his wife, except on account of fornication, and marries another, commits adultery.” (Matthew 19:9). Muhammad (peace be upon him), with the same aim, described divorce in even more measured words as ************* (the most hateful of permissible acts), and called those who divorce for the purpose of indulging their base desires accursed.
But this higher moral principle was intended only to educate people, so that they would keep it before them in their actions. It was not intended to be adopted literally and transformed into a law. Muhammad (peace be upon him) was not merely a teacher of character; he was also a lawgiver of the Shariah. Therefore, while explaining the principles of morality, he also stated what the proper measure of incorporating moral values into law should be and how a balance could be maintained between moral values and the demands of human nature. Jesus (peace be upon him), on the other hand, was not a lawgiver of the Shariah; rather, his prophetic mission in the world ended before the opportunity arose to explain and analyze the Shariah. Therefore, his teachings contain nothing beyond the basic principles of moral values. These principles could have been harmonized with the practical problems of life, and this could have been done in the light of the Shariah of Moses (peace be upon him). But the Christians thought, and Saint Paul convinced them, that after receiving the principles we had become independent of the Divine Shariah, and that formulating law according to these principles was no longer the work of Allah and His Messenger, but the responsibility of the Church.
This extreme error in their understanding cast the Church and its followers into misguidance forever. The two-thousand-year history of the Christians bears witness that, on the basis of any one of the principles of the faith taught by Jesus (peace be upon him), the Church failed to formulate a sound law. In the end, the Christian nation was also compelled to deviate from these principles.
In exempting “involvement in fornication” from his criticism of divorce, Jesus (peace be upon him) perhaps indicated that divorce is not generally a bad thing, but permissible. Divorce without cause is hateful. The Christians were unable to understand this statement of his, and regarded it as conflicting with the verse, “What Allah has joined together, let no man separate.” Some even concluded that the words “involvement in fornication” had been appended to the verse at a later time. Others derived the ruling that, if a wife became involved in fornication, the husband and wife must indeed be separated, but the marital relationship would remain intact. That is, neither of them would be permitted to remarry. The Christian world has acted in this way for hundreds of years. In short, like other laws, this law too is largely responsible for spreading an epidemic of immorality and obscenity among the Christian nation.
The curious thing is that, despite claiming to have freed themselves from the influence of the Church and to legislate entirely on the basis of intellectual principles, in countries such as Britain and America, Judicial Separation still means that husband and wife must be separated from each other, but neither may marry again. This is the consequence of the limitations of human reason. Under the religious law of the Roman Church (Canon Law), the law created on the basis of the aforementioned principle absolutely prohibited divorce—that is, the complete dissolution of the marital relationship followed by the husband and wife gaining the right to marry separately. Six conditions, however, were established for separation:
1. Fornication or an unnatural offense,
1. Impotence,
3. Cruel treatment,
4. Disobedience,
5. Apostasy,
6. The discovery of a blood relationship between the husband and wife such that marriage between them is legally prohibited (that is, mahram relatives).
The legal solution determined for these six conditions was that the husband and wife would separate from each other and remain unmarried for life. Can any intelligent person call this solution reasonable? In reality, it was not a legal solution at all; it was a punishment, for fear of which people did not even dare to go to court with a case for separation. If a couple were separated by the blow of a judgment, they had to live the life of ascetics like priests.
To escape the clutches of this cruel and unrealistic law, Christian priests had devised countless stratagems. Taking advantage of them, Church law would annul the marriages of such unfortunate husbands and wives. In short, one of their deceptions was this: if it could somehow be proved that the promise made by the husband and wife to live together for life had slipped from their mouths unwillingly, and that otherwise their intention had merely been to remain married for a specified period—that is, a mut‘ah (********) marriage—the Church-based court would declare the marriage null (Nullity). But what did “annulment of marriage” mean in the eyes of Christian law? It meant that no marriage had taken place between the husband and wife; that their relationship up to that point had been illicit; and that the child born as a result was illegitimate. In this respect, this second legal solution was even more humiliating than the first.
The Eastern Church (Orthodox Eastern Church), on the other hand, compared with the Roman Church, which had had considerable opportunity to be influenced by Islamic fiqh, succeeded in developing a better and workable law. According to this Church, a husband and wife may be released from the marital bond for the following reasons:
1. Fornication, adultery, and their preliminary means; 2. apostasy; 3. the husband devoting his life to the service of religion as a priest; 4. disobedience; 5. rebellion; 6. impotence; 7. insanity; 8. leprosy and vitiligo; 9. being imprisoned for a long period; 10. mutual hatred and hostility, or an extreme incompatibility of temperament and character between the two.
But the religious leaders of the West do not accept this law. They have centered their faith on the fiqh of the Roman Church, in which it has been conclusively decided that the marital bond cannot be severed by anything except death. After this edict, not only is it beyond them to exercise their reason; even considering the fiqh of another school within their own religion is forbidden. In 1912, before the Royal Commission, Bishop Gore opposed adopting law from the fiqh of the Eastern Church on certain matters solely on the grounds that the British Church followed the fiqh of the Roman Church. At the 1930 Lambeth Conference, the following decision was stated plainly: “We cannot solemnize the marriage of any man or woman whose former husband or wife is still alive.” The latest amendment, agreed upon in 1935 by a conference of England’s religious leaders (Joint Committee of Convocation), was: “If, before marriage, either party is afflicted with a loathsome disease, or if the woman is pregnant and conceals this from the husband at the time of marriage, the marriage may be annulled.” This means that if such an event occurs after marriage, there is no religious remedy for the wife, nor any way of release for the husband.
Such was the condition of the religious group, in which great scholars and experts in fiqh had been born continuously for centuries. But the mistake their religious leaders made at the outset in understanding the significance and legal status of a statement by Jesus (peace be upon him) became so deeply embedded in their minds that the passage of time, changing conditions, the advancement and evolution of knowledge and intellect, the study of human nature, centuries of experience and practice, the verdict of reason and conscience, and examples from legal systems—in short, all these things together—could not free them from its influence. Even over a thousand years, the finest minds of the Roman Church were unable to bring balance to their law or establish it upon a sound pattern of justice and fairness.
Let us now turn some attention to the contributions of modern lawmakers with clear understanding and broad knowledge and experience, who, freed from the bonds of religious law, drafted matrimonial laws for their respective nations with the help of their own knowledge and reason.
Until the French Revolution, the religious law of the Roman Church was in force in most European countries, and together with other similar laws it had plunged the societies and character of the Western nations into extreme decadence. When, during the revolutionary era, the air of free criticism and reflection began to blow, the French nation was the first to understand the defects and shortcomings of its own law. Observing that their clergy were in no way prepared to amend it, they completely threw off the yoke of religion from their shoulders (1792). The same wind then began to blow in other countries. Gradually, Britain, Germany, Austria, Belgium, Holland, Sweden, Denmark, Switzerland, and other countries also abandoned religious law and separately framed laws concerning marriage and divorce for their respective nations. Along with provisions for judicial separation and annulment, they also included the option of divorce.
Thus, the liberation of a large part of the Christian nations from the bonds of their own religious law was the result of the narrow outlook, ignorance, and bigotry of the Christian priests. Taking refuge in their bigotry, they exerted all their strength to force an ineffective, unnatural, and gravely harmful law upon the people in the name of religion. This law was not made by Allah; it had been formulated solely on the basis of the ijtihad of a handful of individuals. But the Christian priests declared it sacred and immutable, like a law given by Allah. They vehemently refused to see or understand its obvious errors, harmfulness, and irrational elements for one reason only: accepting the possibility that a ruling devised somewhere by Saint Paul or some ancient priest might be wrong could perhaps cause faith to be lost! They even opposed seeking the assistance of other fiqh schools within their own religion. Their opposition was not based on the claim that the laws of the Western Church were superior to those of the Eastern Church; it was based solely on this: “We are followers of the Western Church”! This conduct of the religious leaders left the Western nations no option but to free themselves from the bonds of such laws and cast them aside. For even after their harmfulness and error had become clear, they were not considered open to correction.
How much blame can be placed on a single matrimonial rule? In reality, it was this clerical mentality that, pushing Europe and the Western nations forward step by step, led them toward aversion to religion, irreligion, religious apostasy, and atheism.
After becoming free from the bonds of religious law, the Western countries enacted matrimonial laws during the past seventy or eighty years. Although thousands and hundreds of thousands of intellects devoted themselves to drafting them to the best of their ability and continually altered and amended them in the light of experience, even so, the balance and justice present in the law presented by an unlettered Arab Prophet, peace and blessings be upon him, have never been produced in the laws they formulated. Not only that, even after freeing themselves from the bonds of religious law, they have still been unable to purify their minds from the ideas inherited from the founders of the Roman Church.
Take England’s law as an example. Until 1857, only fornication and cruel treatment were regarded there as grounds on which a legal decree of divorce could be issued. After divorce took place, both husband and wife were freed to marry elsewhere. But this was still prohibited there. The 1857 law added desertion (Desertion) to the two aforementioned grounds as a valid reason for separation. The condition, however, was that the husband and wife must have lived apart for two years or more. Moreover, this law legalized divorce as well (final release from the marital bond). The condition was that the husband had to seek the court’s intervention; he could not pronounce divorce directly himself. Likewise, the wife was required, if she sought divorce, not to demand it from her husband at the family level, but in every circumstance to seek the court’s intervention.
Afterward, only one method was left for the court to issue a decree of divorce (Decree). If the husband wanted a divorce, he had to prove that “the wife had committed fornication.” If the wife wanted a divorce, she too had to prove that “the husband had committed fornication,” and, in addition, prove his inhuman conduct or cruelty toward her. Thus, men and women were seemingly being compelled, whenever they wished to leave one another for any reason, to accuse the other of fornication and present proof of it in open court, thereby permanently staining the life of a member of society.
This law thus opened a door for bringing false accusations of adultery. The courts were turned into laundries for washing all the foul-smelling clothes of society. Moreover, publicizing divorce cases through the courts became a means of publicizing shameless immorality. In addition, this law trained husbands to become dayyuth (*******) [‘Dayyus’– unchaste wife’s husband, of adultery agent; who the man secret romance’s hero–heroine’s meeting arranging does। Translator।] to become trained. For under this law, husbands were given the right, if they wished, to collect compensation from their respective wives’ lovers—compensation, that is, in exchange for selling their wives’ chastity! The financial value of illicit intercourse—earned by handing one’s own wife over for another man’s enjoyment.
Under the 1886 Act, the courts were granted jurisdiction to impose on the guilty husband, along with dissolving the marriage, the burden of maintaining the divorced wife if the court so wished. The 1907 Act removed the condition that the husband be guilty and gave the courts complete authority to place responsibility for maintaining the divorced wife on the divorcing husband wherever the court deemed appropriate. This is plainly favoritism toward women. The imbalance is clearly visible here. When no relationship remains between a man and a woman, arranging for a different woman to be maintained by a different man merely on the basis of their former relationship is not correct even by the judgment of reason; nor can it be called founded on justice. For the man receives nothing from her in return.
The 1895 Act decreed that if a wife left her home because of her husband’s oppression and abuse and lived separately from him, the court would prevent the husband from approaching her, arrange for her maintenance from him, and grant her the right to keep the children with her as well. This law further decreed that if a wife engaged in adultery because of her husband’s ill-treatment, or because of his unwillingness and neglect, a claim by the husband for divorce against her would not be admissible.
Reflect somewhat on what this means. The wife proves the husband’s abuse and separates from him. The husband is not even allowed to approach her, yet maintenance money is extracted from him, while she enjoys the pleasures of life with her lovers! Again, if the husband wants to free himself from the clutches of such a wife, that too is impossible. This is the marital law that the finest minds in England formulated after fifty years of tireless labor in the latter part of the nineteenth century!
In 1910, a Royal Commission was formed to review matters relating to divorce and marriage. After three long years of work, the Commission submitted its report at the end of 1912. Some of the recommendations presented in this report are as follows:
1. Men and women must be deemed equal with regard to the grounds for divorce, and on the grounds on which a man is entitled to obtain a divorce decree, a woman must likewise be deemed entitled to obtain a divorce. For example, if a husband engages in adultery even once, his wife will be able to obtain a divorce from him.
2. It has been proposed that the following grounds also be added to the previously mentioned grounds for divorce:
a. Keeping her separated for three consecutive years, b. ill-treatment, c. an incurable disease, d. insanity—five years having elapsed in this condition, e. such addiction to intoxicants that there is no hope of giving it up [Western terminology, ‘addiction to intoxicants’’s meaning habitual drinking is not, rather excessive drinking leading to beatings, quarrelling, shouting, commotion–and disorder and abusive–language being used and in broad daylight meaningless rambling, obscene words being used and mad like behavior being displayed। –—Author.।] and f. imprisonment imposed in commutation of the death penalty.
3. On account of addiction to intoxicants, the husband and wife shall be separated for three years. If this bad habit is not eliminated within this period, the aggrieved party shall be entitled to obtain a decree of divorce.
4. If, before the marriage, either party had been insane or had a loathsome disease and this was concealed from the other party, or if the woman was pregnant and concealed her pregnancy, this shall be deemed a valid ground for annulment of the marriage.
5. No report of a divorce case may be published while the case is pending, and thereafter only that portion of the court proceedings which the court permits to be published may be published.
Among these proposals, the first was the most unreasonable, and only it was adopted and promulgated under the Matrimonial Causes Act of 1923. None of the remaining proposals has to this day been incorporated into the framework of law, because the Archbishop of Canterbury and other influential persons could not agree with them.
From this alone, one may judge the extent of the knowledge possessed by England’s greatest jurists: they are incapable of understanding even the legal and natural difference between a man and a woman engaging in adultery. As a result of their enactment of this erroneous law, so many divorce claims were brought by wives against their husbands that the courts of England became agitated, and in 1928 Lord Merrivalle had to turn his attention to preventing it.
In the countries of continental Europe where the Roman Church has the greatest influence, the marital relationship is still not regarded as something that can be dissolved. Of course, legal separation may take place in certain circumstances. Thereafter, the husband and wife may neither reunite nor freely marry a second time. The matrimonial legal systems of Ireland and Italy are based on this principle.
France’s matrimonial law has experienced many ups and downs. After the French Revolution, divorce was made very easy. Several restrictions were imposed on the Napoleonic Code (Code Nepolian). In 1816, divorce was finally prohibited. In 1884, it was once again declared legal. Subsequently, various laws were enacted for this purpose in 1886, 1907, and 1924. In consequence, the following grounds for divorce were established:
Adultery by either the husband or the wife, cruel conduct, conduct by either the husband or the wife that causes damage to the other’s honor, refusal to fulfill marital rights, habitual drinking of alcohol, and becoming liable through the court to a punishment that is extremely dishonorable.
In addition, after obtaining a decree of divorce from the court, an iddah of three hundred days has been prescribed for the wife. This is merely a flawed imitation of Islamic law. [The primary purpose of observing it is the main purpose– of being released from the marriage bond of one man before entering another man’s marriage bond, is to determine whether the woman is pregnant or not; that it is certain is। to achieve this purpose , Islam has completely natural a method adopted ,। namely, that, three menstrual periods ((hayd)) having elapsed alone this matter can be determined with certainty .। However, if the woman is pregnant , then until the child is born and delivered, her iddah will be extended .– Even if the child is born ten days after the divorce, the child is born, whether or not.। By contrast, three hundred days or ten months of iddah observance has no natural basis whatsoever.।–The Author।]
The laws governing divorce in the other European states differ considerably from one another, but they are all alike in being incomplete and unbalanced.
In Austria, Belgium, Switzerland, and Norway, a husband and wife can obtain a decree of divorce only on the basis of mutual consent. This bears some resemblance to Islam’s system of khula, but it too is merely a flawed imitation.
In Germany, it is not sufficient for either the husband or the wife to abandon the other and live separately from that person; this condition must continue uninterrupted for one year before it constitutes grounds for divorce. This law is an indistinct reflection of Islam’s system of ila. In Switzerland, a period of three years has been stipulated for this, and in Holland (the Netherlands), five years. The laws of other countries are silent on this matter.
In the case of a missing husband, Swedish law requires the wife to wait for six years, and Dutch law for ten years. The laws of other countries are silent in this regard.
In the case of insanity, the laws of Germany, Sweden, and Switzerland allow a period of three years. The other countries have made no ruling concerning the insane.
In Belgium, a divorced wife must observe iddah for ten months. Apart from France and Belgium, no other country has specified an iddah for a woman’s remarriage.
In Austria, the imprisonment of either the husband or the wife for five years or more is sufficient grounds for demanding a divorce. In Belgium, simply being sentenced to punishment entitles either the husband or the wife to obtain a decree of divorce against their spouse. In Sweden and Holland, life imprisonment is required for this.
These are the laws of the very nations regarded as the most advanced in the world. A careful examination of them reveals that none has succeeded in formulating a complete and balanced law. In contrast, anyone who looks at Islamic law with fairness must acknowledge that, in the balance of justice, consideration of human nature, eradication of corruption, preservation of character and morality, concern for social welfare, and comprehensive coverage of all the problems and conduct of married life, Islamic law has attained such a degree of perfection that the West, not only individually but collectively, has been unable to attain even one-tenth of it. Yet these laws were formulated in the nineteenth century, the age of “Enlightenment,” by thousands of Western priests and intellectuals after nearly a century of inquiry, reflection, experimentation, research, and legal experience. In contrast, when Islamic law was formulated thirteen hundred years ago, an illiterate man among the Bedouin Arabs did not seek advice from any parliament or any committee of experts.
Even after observing such a clear and tremendous difference, if anyone says that the law of Islam is not a law given by Allah but rather a law made by human beings, we would say that such a person ought to have claimed divinity himself. What clearer proof of his truthfulness could there be than that he did not claim credit for any superhuman contribution himself; rather, he clearly said, “I cannot present anything from my own mind; whatever Allah Ta‘ala teaches me, I convey to you.”
After such a clear and tremendous difference has been observed, if a person nevertheless denies the need for the Creator’s guidance in every aspect of his life and claims that he himself should be his own guide and lawgiver, what else can this obstinacy be called but stupidity? Who could be a greater fool than one for whom a selfless and well-intentioned guide is always ready to show the easy and straight path, yet says, “I will find the road myself”? While searching, he needlessly continues wandering around on various roads.
— The End —