Marriage And Divorce In Islam Pdf
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- The different methods of Islamic separation – Part 2: The different types of Talaq
- The Dissolution of Marriage in Islam
- Divorce in Islam
The Arabic word for divorce is talaq which means "freeing or undoing the knot" Imam Raghib. In the terminology of the jurists. Talaq signifies the dissolution of marriage, or the annulment of its legality by the pronouncement of certain words. Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular. Talaq Ahsan or the most laudable divorce is where the husband repudiates his wife by making one pronouncement within the term of Tahr purity.
The different methods of Islamic separation – Part 2: The different types of Talaq
Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The theory and practice of divorce in the Islamic world have varied according to time and place. According to the Quran, marriage is intended to be unbounded in time, as indicated by its characterization as a "firm bond" and by the rules governing divorce.
Similarly for a non-menstruating woman, At-Talaq prescribes the waiting period. This is to give the husband time to reconsider his decision. The Quran substantially reformed the gender inequity of divorce practices that existed in pre-Islamic Arabia, although some patriarchical elements survived and others flourished during later centuries.
In this system, women were particularly vulnerable. The Quran limited the number of repudiations to three, after which the man cannot take his wife back unless she first marries another man. The subject of divorce is addressed in four different surahs of the Quran, including the general principle articulated in . If you divorce women, and they reach their appointed term, hold them back in amity or let them go in amity.
Do not hold them back out of malice, to be vindictive. Whoever does this does himself injustice". Classical Islamic law is derived from the scriptural sources of Islam Quran and hadith using various methodologies developed by different legal schools. The term talaq is commonly translated as "repudiation" or simply "divorce".
Upon talaq, the wife is entitled to the full payment of mahr if it had not already been paid. The husband is obligated to financially support her until the end of the waiting period or the delivery of her child, if she is pregnant.
In addition, she has a right to child support and any past due maintenance, which Islamic law requires to be paid regularly in the course of marriage. Giving the husband a prerogative of repudiation was based on the assumption that men would have no interest in initiating a divorce without good cause, given the financial obligations it would incur. Talaq is considered in Islam to be a reprehensible means of divorce.
The waiting period is intended to give the couple an opportunity for reconciliation, and also a means to ensure that the wife is not pregnant. Resumption of sexual relations automatically retracts the repudiation. The wife retains all her rights during the waiting period. The divorce becomes final when the waiting period expires. This is called a "minor" divorce al-baynuna al-sughra and the couple can remarry. If the husband repudiates his wife for the third time, it triggers a "major" divorce al-baynuna al-kubra , after which the couple cannot remarry without an intervening consummated marriage to another man.
Making the third pronouncement irrevocable prevents the husband from using repeated declarations and revocations of divorce as a means of pressuring his wife into making financial concessions in order to "purchase her freedom". Women often entered marriage with substantial capital in the form of mahr and the trousseau provided by their family, which they were not obliged to spend on family expenses, and they frequently loaned money to their husbands.
Because of this, and the financial obligations incurred, talaq could be a very costly and in many cases financially ruinous enterprise for the husband. Many repudiated women used the divorce payment to buy their ex-husband's share in the family house. In the historical record talaq appears to have been less common than khul'.
Available evidence from Mamluk Egypt indicates that talaq was not the principal means of divorce. This led to repudiation without good reason being considered socially improper. Talaq types can be classified into talaq al-sunnah , which is thought to be in accordance with Muhammad's teachings, and talaq al-bid'ah , which are viewed as a bid'ah innovation deviations from it. Talaq al-sunnah is further subdivided into talaq al-ahsan , which is the least disapproved form of talaq, and talaq al-hasan.
The ahsan talaq involves a single revocable pronouncement of divorce and sexual abstinence during the waiting period. The hasan divorce involves three pronouncements made during the wife's state of ritual purity with menstrual periods intervening between them, and no intercourse having taken place during that time.
In contrast to talaq al-sunnah , talaq al-bid'ah does not observe the waiting period and irrevocably terminates the marriage. Shiite jurisprudence does not recognize talaq al-bid'ah.
The husband can delegate the right of repudiation to his wife. Commonly, the contract gave the wife the right to "repudiate herself" if the husband married a second wife. It is justified on the authority of verse . It is not licit for you to take back anything you have given them unless the two of them fear that they cannot conform to the bounds of God, no blame attaches to them both.
If the woman gives back that with which she sets herself free. These are the bounds set by God; do not transgress them. It is further based on a hadith in which Muhammad instructs a man to agree to his wife's wish of divorce if she gives back a garden received from him as part of her mahr. A khul' is concluded when the couple agrees to a divorce in exchange for a monetary compensation paid by the wife, which cannot exceed the value of the mahr she had received, and is generally a smaller sum or involves forfeiting the still unpaid portion.
If the husband pressures his wife to agree to khul' instead of pronouncing talaq, which would let him avoid attendant financial responsibilities, the divorce is considered to be invalid. In studies of Mamluk Egypt and the Balkans under Ottoman rule, khul' was shown to have been the principal means of divorce. Women employed a number of strategies to force a settlement from their husbands. Some neglected their marital and household duties, making family life impossible for the husband.
Others demanded immediate payment of the deferred mahr, knowing that the husband had no means to comply and would be jailed if he failed to do so. In some cases the khul' contract involved no compensation from the wife, while in other cases women would waive all of their husband's financial obligations. A marriage can also be dissolved by means of judicial divorce. Either spouse can petition a qadi court to obtain judicial divorce, but they must have compelling grounds for dissolving the marriage.
The court starts the process by appointing an arbitrator from each of their families in order to seek a mediated reconciliation. If this effort fails, the court adjudicates the dispute by apportioning fault for the breakdown of the marriage with the associated financial consequences. Different legal schools recognized different subsets of these grounds for divorce.
In some areas under Ottoman rule it was hardly possible for women to obtain divorce except through khul' due to the restriction imposed by the prevailing Hanafi school, though some exceptions have been found. The most serious problem was abandonment, which was not recognized as grounds for judicial divorce. To address this, in some cases a man setting out for travel would leave his wife a letter authorizing talaq if he did not return within a specified period of time.
In other cases, Hanafi judges invited a Maliki or Hanbali colleague to pronounce divorce, or the woman herself took the initiative to seek out a judge from one of these schools. The same approach was used to effect a divorce in cases of failure to provide maintenance. In the Ottoman Balkans a woman could file for divorce on the grounds that her husband was "not a good Muslim".
Since marriages between non-Muslim men and Muslim women are forbidden under Islamic law, when a married woman converted to Islam but her husband did not, the marriage would be considered void by Muslim authorities and the woman obtained custody of the children. Seventeenth-century sources indicate that non-Muslim women throughout the Ottoman Empire used this method to obtain a divorce.
Ila is an oath whereby the husband vows to refrain from sexual relations with his wife for at least four months. If he fulfils his oath, the marriage is dissolved; if he breaks it, the marriage continues.
The husband is able to break the oath and resume the marriage. Breaking either oath requires expiation by means of feeding the poor or fasting. In the li'an oath, the husband denies paternity of his wife's child. The wife is given an opportunity to take an oath denying infidelity, and if she does so and the husband persists in his accusation, the marriage is dissolved by a judge and the couple can never remarry.
This oath can serve as a protection for the wife or as a threat by the husband, depending on the specified act. Studies of practices under Mamluk and Ottoman rule found no instances of the oaths of li'an or abstinence being used, while conditional talaq seems to have played a prominent role.
It was used to issue various threats to the wife as well as to make promises. In Ottoman Egypt marriage contracts commonly included stipulations of conditional talaq which were not otherwise recognized by the prevailing Hanafi school as grounds for judicial divorce, such as non-payment of maintenance or marrying a second wife. Islamic law does not recognize the concept of communal property, and division of property is based on its attribution to either spouse.
The wife obtains custody of the children until their majority whose definition varies according to legal school , while the father retains guardianship.
Child custody practices under Ottoman rule appear to have followed the rules of Hanafi jurisprudence, although in Ottoman Egypt children generally stayed with their divorced mother beyond the prescribed age. A divorced woman could keep custody of the children unless she remarried and her husband claimed custody, in which case it generally passed to one of her female relatives. Under the Mamluks, women could waive the right to child support in order to obtain extended custody.
Mahr is a nuptial gift made by groom to the bride at the time of marriage. Upon receipt, it becomes her sole property with complete freedom of use and disposal. The marriage contract is not valid without the mahr. The amount of the mahr generally depended on the socio-economic status of the bride.
The payment of a portion of the mahr was commonly deferred and served as a deterrent to the exercise of the right of unilateral divorce by the husband, although classical jurists disagreed about the permissibility and manner of deferring payment of the mahr. Islamic jurisprudence has clear guidance on handling of mahr in the case of divorce, depending on who asks for the divorce and whether or not the intercourse occurred. If the husband asks for a divorce and intercourse has occurred, he pays full mahr ; if the husband asks for a divorce and the intercourse has not occurred, the husband pays half the dower; if the wife asks for a divorce and intercourse has occurred, the husband pays half the mahr ; and if the wife asks for a divorce and intercourse has not occurred, then no mahr is required to be paid by the husband.
In the modern era, sharia-based laws were widely replaced by statutes based on European models, and its classical rules were largely retained only in personal status family laws. Several scholars have argued that because these laws are more extensively specified in the Quran and hadith than others, it has been difficult for believers to accept deviating from these rules.
Important changes in family laws took place in the modern era. The laws underwent codification by legislative bodies and were also displaced from their original context into modern legal systems, which generally followed Western practices in court procedure and legal education. In her article 'An unequal partnership', Sulema Jahangir insists that, Convention on the Elimination of all Forms of Discrimination Against Women and other international standards expect that non-financial contributions of women to a marriage ought to be recognized to enable an equal standing between spouses.
Changing social conditions have led to increasing dissatisfaction with traditional Islamic law of divorce since the early 20th century. Various reforms have been undertaken in an attempt to restrict the husband's right of unilateral repudiation and give women greater ability to initiate divorce. According to Sulema Jahangir in Turkey, the revised Civil Code expects equal division of property and assets acquired during the marriage as the default property regime. The All India Muslim Personal Law Board issued a code of conduct in April regarding talaq in response to the controversy over the practice of triple talaq in India.
It also warned that those who resort to triple talaq, or divorce recklessly, without justification or for reasons not prescribed under Shariat will be socially boycotted. In India, The Muslim Women Protection of Rights on Marriage Act, was passed in July, which made instant triple talaq talaq-e-biddah in any form — spoken, written, or by electronic means illegal, void, and punishable by up to three years imprisonment.
According to Yossef Rapoport, in the 15th century, the rate of divorce was higher than it is today in the modern Middle East , which has generally low rates of divorce.
The Dissolution of Marriage in Islam
Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The theory and practice of divorce in the Islamic world have varied according to time and place. According to the Quran, marriage is intended to be unbounded in time, as indicated by its characterization as a "firm bond" and by the rules governing divorce. Similarly for a non-menstruating woman, At-Talaq prescribes the waiting period. This is to give the husband time to reconsider his decision. The Quran substantially reformed the gender inequity of divorce practices that existed in pre-Islamic Arabia, although some patriarchical elements survived and others flourished during later centuries.
The Rights of Women in Islam pp Cite as. Although in most societies divorce is met with social disapproval, nonetheless it is a natural and inevitable phenomenon in human society. Hence, we find that in every society there are ways and means which allow the marital link to be dissolved if it fails to fulfil its objective. Unable to display preview. Download preview PDF.
feature of marriage and divorce in the Muslim family law which are the focal symbols of the Islamic society. A slight discussion shall be made regarding the.
Divorce in Islam
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Conditions for a valid talaaq:
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