Muslim Personal Law

Muslim Personal Law

1986 2 February 18-24 Muslim Personal Law (2941) “Childless couples tend to have higher divorce rates than couples with children.” So says last year’s Encyclopaedia Britannica (7/163-64) on the basis of data collected in western countries. A western divorce court judge confirms that “every little youngster born to a couple is an added assurance that their marriage will never be dissolved in a divorce court.”

In spite of these apparently favourable psychological factors and natural, traditional attachments of parents and children, the rising incidence of divorce is a new and observable phenomenon of the modern world. One of the most important contributing factors is the ease with which women can now make a living. On this the Encyclopaedia Britannica says: “Industrialization has made it easier for women to support themselves, whether they are single, married, divorced, or widowed. In this connection, it is interesting to note that the Great Depression of the 1930s stopped the rise in the number of divorces in the United States for a time” (7/163, 1984).

While marriage is the rule of life, and divorce only an exception, the latter must also be accepted as a reality. Indeed there already exist commandments to deal, accordingly, with such cases in both divine and human laws.

The only true, authentic representation of divine law now exists in the form of the Quran, it having been preserved in its entirety by God, and free, therefore, from all human interpolations. In the Quran, and in the Hadith (the sayings of the Prophet) there are various commandments regarding divorce, the main point being that divorce should be sought only under unavoidable circumstances. The Prophet spoke of it as being the most unpleasant of all the lawful things in the eyes of God, and said that when it does take place, it should be done in an atmosphere of good will. In no way should one harbour ill-will against the other.

The Meaning of Provision

In Islamic jurisprudence, the material arrangements which a man makes for his divorced spouse is termed ‘divorce provision’. There is a consensus among Muslim scholars that this provision in no way means life-long maintenance, there being absolutely no basis for this in the divine scriptures. The concept of maintenance for life is, in fact, a product of modern civilization. It was never at any time enshrined in divine laws, either in Islam, Judaism or Christianity. In material terms ‘provision’ simply takes the form of a gift handed over by the man on parting, so that the woman’s immediate needs may be catered for, and in all cases, this is quite commensurate with his means.

But the Quran makes it explicit that the parting must above all be humane and that justice must be done: “Provide for them with fairness; the rich man according to his. This is binding on righteous man. Do not forget to show kindness to each other ……reasonable provision should also be made for divorced women. That is incumbent on righteous man. (The Quran 2:236-241)

When divorce takes place before the settling of the dowry and the consummation of the marriage, even then the man must give the woman money or goods as a gesture of goodwill. In this instance the question of his repaying dowry money does not arise. The Quran is also quite explicit on this; “Believers, if you marry believing women and divorce them before the marriage is consummated, you have no right to require them to observe a waiting period. Provide well for them and release them honourably.”

(The Quran 33.49)

This “waiting period” actually applies to a woman who has been married for some time and who may, subsequent to the divorce, discover that she is pregnant. This statutory waiting period of three months makes her position clear and then the man is required to pay her additional compensation if she is expecting his child. But again there is no question of maintenance for life, for the Quran seeks a natural solution to all human problems. It would, therefore, be wholly against the spirit of the Quran for a woman to be entitled to life maintenance from the very man with whom she could not co-exist. Such a ruling would surely have created a negative mentality in society. The Quran again has the answer: “If they separate, God will compensate each of them out of His own abundance: He is Munificent, Wise (4:130).

The munificence of God refers to the vast provision which God has made for his servants in this world.

In various ways God helps such distressed people. For example, when a woman is divorced, it is but natural that the sympathy of all her blood relations should be aroused. And, as a result, without any pressure being put on them, they are willing to help and look after her. Besides, a new will-power is awakened in such a woman and she sets about exploiting her hidden potentialities, thus solving her problems independently. Furthermore, previous experiences having left her wiser and more careful, she feels better equipped to enter into another marital relationship with more success.

After Divorce

The question that arises immediately after divorce is of ways and means to meet one’s necessary expenses. One’s answer is to resort to the Islamic law of inheritance. If women were to be given their due share according to Islamic law, there would be no question of woman becoming destitute. But, sad to say, the majority of Muslim women fail to get their due share of inheritance from their deceased fathers and husbands as stipulated by Islamic Law. If they could do so, this would be more than enough to meet such emergencies.

However, Islam has not just left women’s financial problems to the vagaries of inheritance, because parents are not invariably in possession of property which can be divided among their children. Further arrangements have been made under the maintenance law, but this has no connection with the law of divorce. The answer to this question must be sought therefore in the Islamic law of maintenance. Here we shall briefly describe some of its aspects:

1. In case the divorced woman is childless or the children are not earning, according to Islamic law, the responsibility for her maintenance falls on her father. That is, her situation will be the same as it was before marriage.

To quote from Fathul Qadir: * “The Father is responsible for bearing the expenses of his daughter till her marriage, in the event of her having no money. The father has no right to force her to earn, even if she is able to. When the girl is divorced and the period of confinement is over, her father shall again have to bear her expenses.

2. If the divorced woman has a son who is an earning member of the family, the responsibility for her maintenance falls entirely upon him. “All that rightfully belongs to a wife, will be the duty of the son to provide, that is, food, drink, clothes, house and even servants, if possible (Radd Al-Mohtar Vol. 2, p. 933).

3. In the case of father being deceased, and where even her children are unable to earn, her nearest relatives such as brothers or uncles are responsible for her upkeep. In the absence of even this third form, the Islamic Shariah holds the State Treasury (Baitul Mal) responsible for bearing her expenses. She will be entitled to receive the money for her necessities.

Because of the number of provisions made under Islamic law for women it has never been the case in Islamic history that Muslim divorced women have been cast adrift, helpless, with no one to look after them.

Khushwant Singh has remarked that we do not hear of Muslim women committing suicide or being tortured like Hindu women, which is a proof that Islam has already given them adequate liberty and has made enough provision for them to be supported in times of emergencies.

A new dimension has been added to the issue since the women of this day and age can leave their homes to work, and are therefore not entirely dependent on men as they used to be in the past; there is no need then to make law which provide for them at the expense of their menfolk. When they are earning like men, what is the point in making such a law? Only in exceptional cases, surely do they need to be looked after, and ways and means of doing so can generally be worked out quite satisfactorily on a personal level.

* A standard book on Islamic law

The Problem of Modern Civilization

In the modern age, western civilization has been beset by many problems, many of which are more artificial than real. In many things western civilization has adopted unnatural ways, thus giving rise to unnatural problems. The matter has further been worsened by attempts to solve them unnaturally. Problems have thus gone on increasing instead of decreasing. The problem of divorce is one of them. The initial stimulus of the women’s lib movement in the west was not wrong, but its leaders did not care to define its limits. In a bid to make a free society, their efforts culminated in the creation of a permissive society. Affairs between men and women knew no limits and this had the effect of weakening the marriage bond. Men and women were no more husbands and wives. In the words of the Prophet, they became sensual, pleasure-seeking people. This, state of affairs was given a boost by industrialization, as a woman could easily procure an independent livelihood for herself. This had never before been possible. Because of this, she has frequently refused to live under the guardianship of men which, in consequence has created a large number of social problems leading to greatly increased rates of divorce.

The western philosophers who wanted to check divorce advocated legal curbs upon men, which would legally bind them to provide maintenance to the wife after the divorce. This maintenance sum was fixed according to western living standards, so that, in most cases, divorce meant that the man had to part with a fair amount of his hard earned money for the whole of the rest of his life.

A victim of this unnatural state of affairs was Lord Bertrand Russell, one of the most intelligent and outstanding intellectuals of his time. Soon after his marriage, he discovered that his wife no longer inspired any feelings of love in him. Although realizing this incompatibility, he did not seek an immediate separation. Inspite of severe mental torture he tried to bear with this situation for ten years. He refers to this period as one of “darkest despair”. Finally he had to separate and remarry, but he was not satisfied even with the second match and he married for the third time. Two divorces were a costly bargain. According to English law, the amount of alimony and maintenance he had to pay his wives upset him greatly. He writes in his Autobiography:

“ ... the financial burden was heavy and rather disturbing: I had given £ 10,000/- of my Nobel Prize cheque for a little more than £ 11,000/- to my third wife, and I was now paying alimony to her and to my second wife as well as paying for the education of my younger son. Added to this, there were heavy expenses in connection with my elder son’s illness; and the income taxes which for many years he had neglected to pay now fell to me to pay.” Bertrand Russell, Autobiography, Unwin Paperbacks (London) 1978, pp. 563-64.

Such a law had been passed in order to ensure justice for women who had to resort to divorce. But when people began to realize that divorce inevitably led one into financial straits, the marriage bond began to be dispensed with altogether. Men and women simply started to live together without going through the formality of the marriage ceremony. Now more than fifty percent of the younger generation prefer to live in the unmarried state.

It was only natural that a reaction should have set in against a law which so patently disfavoured men and brought corruption, perversion and all kinds of misery in its wake. Children – even newborn babies – were the greatest sufferers.

Now take the situation prevailing in Hindu society in which the extreme difficulty of divorce acts as a deterrent. Obviously this was a bid to reform, but this has served only to aggravate the matter. The ancient Indian religious reformers had held separation as being illegal. They even prohibited women from remarrying so that they would be left with no incentive to seek divorce. The laws were made in such a way that once marriage ceremonies were finalized, neither could a man divorce his wife, nor was it possible for a woman to remarry after leaving her former husband.

But such reformations were unnatural, and have been generally detrimental to individuals in Hindu society. When a man and a woman are unable to satisfy one another, the whole of their lives is passed in great bitterness because of there being no provision for remarriage. They are doomed to continue to live a tormented life alongside partners with whom they have nothing in common. I shall cite here only one of the hundreds and thousands of such instances which are reported in newspapers almost everyday, leaving aside those cases which go unreported. Manu, 25, was a cousin of Mr. Khushwant Singh. He has written in detail about her tragedy in his “Malice” column (12 October 1985). Manu had a flourishing business selling ready-made garments in Los Angeles. As she did not want to marry a foreigner, she decided to come to India to find a husband and return with him to the States. She found her own husband in a tall handsome, powerfully built Hindu boy who was anxious to go abroad. The marriage took place with all pomp and splendour in a five-star hotel. It took her some months to arrange for her husband’s visa, during which time she maintained him and paid for his passage. The marriage was a disaster. The boy turned out to be an alcoholic, prone to violence and averse to doing any work. Manu sought her parent’s consent to wind up her business, divorce her husband and return to India. Her parents travelled to America and tried to persuade her not to be hasty. A few days after her mother returned to Delhi, Manu’s husband strangled her and dumped her body in a deserted spot. He collected all he could in the house and was planning to flee the United States when the police caught up with him. He is now in jail on a charge of murder.

It is obvious that Manu was not careless in selecting her partner. She traveled from America to find a suitable match in her birth place. But all that glitters is not gold. Our human limitations make it impossible for us to understand every facet of a person’s character before entering into a relationship with him. The question arises if, after such revelations, one should feel forced to respect a marriage bond even at the cost of one’s life? When society considers separation taboo, or the laws on this show no human leniency, the only alternatives left for such incompatible couples are either to commit suicide, or waste away the whole of their lives in the “darkest despair”. Even when one dares to surmount the hurdle of divorce, it is very difficult to get remarried in societies where divorcees are looked down upon. One can at best marry someone beneath one’s social status. But in Islam remarrige is not a taboo: the Prophet himself married a widow. The provisions of Islam are thus a great blessing to couples who realize only too late that they have erred in making their choice of a partner. Islam provides for them to separate amicably, in a spirit of goodwill.

Just think of the couples wasting away the whole of their lives in mental torment only because the conditions of separation and its consequences are hard to meet. It is as unnatural as anything can be.

Islam is a natural religion. That is why such a situation has not developed in Muslim communities because Islamic law on marriage and divorce provides for all, or almost all, eventualities. For example, when a woman wishes to divorce her husband, she has to put her case before a religious scholar, or a body of religious scholars. This facility is available to her in all the great Arabic schools in India. They then give consideration to her circumstances in the light of the Quran and the Hadith, and, if they find that there are reasonable grounds for separation, they decide in her favour. The reason that the woman must have scholars to act on her behalf is that women are more emotional than men – as has been proved by scientific research – and it is to prevent hasty and ill-considered divorces taking place that she is thus advised. If we seldom hear of Muslim women committing suicide, or being murdered by their in-laws, it is because they have the alternative – separation.

Separation, of course, is strongly advised against in the case of minor provocations. Are we not commanded by God to be tolerant and forgiving? It is meant only as a last resort, when it has become truly unavoidable.

Islamic law is thus fair to both husband and wife, unlike occidental law, which places an undue burden on the man, while Hindu Society forces the woman into familial rejection, destitution and social ostracism.