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Dissolution Of Marriage – Divorce In Islam Empty Dissolution Of Marriage – Divorce In Islam

Post by Adminkunlex on Fri Jul 10, 2020 6:25 pm

Although marriage dissolution through divorce is universal and hence inevitable in principle, the
frequency of its occurrence, the reasons for it, and the
reactions thereto vary in time and space.
In the region where Islam was first preached, marriage dissolution was practiced by the people
among whom early Muslims grew up and with
whom they made external contacts.
Jews, Christians, Arab pagans, and Persian
Zoroastrians more or less resorted to the practice,
with either the explicit, the implicit, or the mutilated
sanction of their respective system.1
With regard to Hebrew law, in particular, a remark
has been made which applies in a general way to
the case of Islam. According to Driver, “Hebrew law .
. . does not institute divorce, but tolerates it, in view
of the imperfections of human nature (. . . Mt. 19: ,
and lays down regulations tending to limit it and
preclude its abuse.”2
The phenomenon of marriage dissolution had existed
before Islam and has persisted ever since. Indeed, if
the contemporary world situation is indicative of any
trend, it appears to foretell a continuing increase in
divorce rates; the gradual decline in some societies is
offset by the continuing rise in others.3
However, Islam has taken a position between
categorical proscription and unqualified liberalization
of divorce. It neither instituted the practice nor
ignored its reality and occurrence. An outright
prohibition would probably remain an “ideal” or
merely a state of mind, but hardly a pattern of actual
behavior, because absolute self-control is not always
attainable.
Such a prohibition, then, would seem incompatible
with Islamic ideology which, as a matter of principle,
prescribes only what is humanly attainable.4
On the other hand, any unregulated liberalization of
divorce is socially inconceivable and would almost
certainly result in chaos, peril, and such traits that are
destructive as well as intolerable.
Instead of demanding the impossible or catering to
the intolerable, Islam adopted a position which has
been variously characterized as “lax” and loose by
some observers, “rigid” and inflexible, or moderate
and perfect by others.
Such characterizations, however, seem to be
oversimplifications. Divorce or repudiation in Islam is
distributed along a continuum encompassing all the
religio legal categories from the one extreme of
prescription through the other of proscription.
It is obligatory, e.g., where there is no conceivable
way of reconciliation or hope for peace between the
parties. It is highly recommended or nearly obligatory
if the wife is unfaithful or defiantly inattentive to her
religious duties.
It is forbidden legally and/or religiously during the
wife’s monthly course and also during the interim in
which an intercourse has taken place. It is strongly
undesirable or nearly forbidden where there is no
good reason for it, because it would be harmful and
Muslims are forbidden by their religion to initiate
harm or inflict injury upon one another.
Finally, it is lawful when there is a valid ground for it,
like recurrent inconsiderateness or failure to realize
the objectives of marriage. Even then, it is designated
by the Prophet as the most repugnant, in the sight of
God, of all lawful things; it is an act which shakes the
throne of God as it were.5
The permissibility of divorce in Islam is thus only one
of several religion-legal categories and represents an
alternative course of action, which is admissible in
response to certain basic human needs.
But beyond this general response, there are some
peculiar factors bearing on the position of Islam. One
of these is that, in Islam, things as such are lawful in
principle. They become
forbidden or undesirable, obligatory or commendable
according to other elements of the situation.
Another factor is that the marriage contract in Islam
is neither a civil act nor a sacramental vow, but a
synthesis of both. Its dissolution therefore is
admissible; it is not unrestricted like some civil
liberties, and it is not indissoluble like some
sacramental vows.
Finally, Islam has been characterized as the religion of
the middle but straight and well-balanced course.13
Marriage dissolution through divorce or repudiation is
recognized as both real and lawful in principle,
however undesirable or repugnant.
This recognition has elicited different reactions from
different scholars. For some, divorce in Islam is a
mechanism of discipline and compassion, a necessary
and sensible corollary of the freedom given to men
and women to choose their marital partners.
“For others, Islam’s position has been an object of
strong and varied criticisms. In Jeffery’s representative
words, “The lightness with which the marriage tie
was regarded in early Arabia has carried over into
Islam, as evidenced by the facility with which a man
may divorce his wives
and by the high frequency of divorce which has
always characterized Muslim society. The Qur’an
grants man complete liberty of divorce and demands
of him no justification for divorcing his wife. Thus he
can divorce her at his own caprice, but no such
facility exists for her.” 6
Criticisms have also been voiced with concern by
some Muslims, who unlike their Western colleagues,
usually hasten to point out the perfection of the
revealed law and attribute any abuse thereof to the
individual’s negligence or lack of integrity.
As far back as the second decade of Islam, the first
half of the seventh century C.E., some people began
to misuse their right of divorce. Until then, it had been
accepted that if a man told his wife that she was
“divorced thrice” the word thrice counted only as one
revocable divorce.
When some people used this thrice formula
carelessly, ‘Umar, the Second Caliph, reacted with
indignation. He consulted with his companions and it
was decided to consider such a formula as a triple
irrevocable divorce. The interesting fact here is that
this new provision was conceived as a punitive
measure to discipline the divorcing men and protect
the divorced women.7
A few centuries later, Ibn Taymiyyah observed that
many people were using divorce formulas like
ordinary casual forms of oath. But he realized that the
breaking of an oath was easily expiable by feeding or
clothing ten poor people or by freeing a slave,
whereas the breaking of a “divorce oath” meant the
breaking of a marriage and a home.
So he ruled that such divorce oaths were void and
inconsequential as far as the marriage bond was
concerned. He also opposed the earlier decision of
‘Umar and other leading schools of law with respect
to the “thrice formula,” counting it as one revocable
divorce, not three.
What Umar had considered disciplinary measures
against irresponsible men turned out, with the change
of time and conditions, to be harmful to innocent
women. Ibn Taymiyyah sought, by his rulings, to
redress this situation.8
Taken as a sociological index, such considerations
seem to indicate (1) that Islamic law regards both
marriage and divorce as highly sensitive and
consequential matters; (2) that people’s reactions do
not always correspond with the intent or spirit of the
law; (3) that, in the early centuries of Islamic history,
the simplicity of divorce was thought of as more
harmful to men than women; but (4) that recent
centuries have witnessed a general reversal of the
effects of divorce.
As many Muslims fail in their behavior to meet the
moral expectations of their religion, so do some critics
appear to fall short of a full appreciation of the logic
of social legislation in Islam. It may be difficult for
Muslim scholars to comprehend the scientific basis of
such assertions as those made by Jeffery, Levy, or
Roberts about what they have called the incredible
simplicity or unjustifiable facility of divorce in Islam.
It seems simplistic to attribute to Muslims, as Roberts
does,9 a greater need for, and a higher frequency of,
divorce because of the separation of the sexes and
the women’s wearing of the veil.
The mixing of the sexes, even in modern enlightened
times, and the discontinuity of the veil have neither
prevented nor curtailed the frequency of divorce. If
anything, they seem to have increased its frequency.
On the other hand, the wearing of the veil over the
face has little or nothing to do with Islam.10
Besides, it is strongly recommended by the Prophet
that prospective marital partners should be enabled
to know each other well enough to build their future
relations on love and compassion but, of course,
without undue familiarity, indulgence, exploitation, or
illicit experimentation.11
Moreover, the fact that women have had less
freedom to divorce their husbands does not
necessarily mean that it has led to an increase in
divorce rates. Rather, it may be one of the effective
restrictions on divorce, for it has been observed that,
at least in Western societies, the long-run trend in
divorce rates is upward and, partly, the increase “is
tied to the emancipation
and the equalitarian status of women,…”12

Source: https://www.muslimhowto.com/2020/05/dissolution-of-marriage-divorce-in-islam.html

Adminkunlex
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