Directives Regarding Divorce

Family is the basic unit of society. A
family comes into existence when a man and a woman declare their commitment to live
together through the lifetime. Islam attaches great importance to this basic unit and
explains the laws governing family affairs in more detail as compared to any other aspect
of life. Moreover, if at any point the man and the woman realize that they cannot fulfill
their commitment and cannot live their lives together, then Islam prescribes a procedure
to sever the relationship that had come into existence through marriage. This procedure is
called the law of divorce. Due to the great importance of the family unit, Islamic law of
divorce is such that if it is followed in letter and spirit, it gives a lot of
opportunities for the married couple to reconcile during the process of divorce and even
after that. Islam has granted the right of divorce only to the head of the family that is
the husband. However if the wife wants a divorce, Islam does not object to it, only the
wife cannot sever the relationship on her own, whereas the husband can. According to the
Islamic law if the wife wants a divorce she can demand divorce from her husband. In this
situation it is better that a decent person, if he realizes that there is no chance of
reconciliation, should give divorce to the wife according to the law. A man should always
remember that if he tries to exploit his wife in this regard, he should prepare himself
for the wrath of Allah in the hereafter. If, on the wife’s demand, a husband refuses
to divorce her, then she can go to a competent legal authority (generally a court) and
demand a divorce through the court.

The Qur’an has described this law of
divorce, in detail. According to the Qur’an, the following directives must be
followed in the procedure:

Pronouncing The Divorce:

According to the Qur’an a man should
pronounce one divorce while keeping in mind the “Iddat” (waiting period
before the divorce actually becomes effective) and its directives. The directives relating
to the period of iddat are:

• The wife shall live in the same house during this period;
• The husband can reconcile, during this period, if he wants
  to; and
• The husband shall be responsible for the daily needs of the
  wife just like before.

Moreover, it also seems more in accordance
with the Qur’an that a man and a woman should be quite clear about the duration of
“Iddat” before the pronouncement of divorce, because the period of “Iddat”
can vary according to the physiological condition of the woman.

The Duration and Directives for the Period
of Iddat:

Iddat, as a special Qur’anic term
is used for that waiting period after the pronouncement of divorce for which the Shari`ah
has given special directives. In the Qur’an the directives related to this period are
explained in Surah Baqarah and Surah Talaaq. These directives are as under:

• Iddat for those women who have an active sexual
  relationship with their husbands and who menstruate, is three menstrual cycles.
• There is no Iddat for those women who are divorced
  before any sexual relations are established between them and their husbands.
• Iddat for all those women who have reached menopause
  (but have active sexual relationship with their husbands) or who do not menstruate for any
  other reason, is three months. However, those women who have reached menopause and who
  have had no sexual relationship with their husbands for a long time do not have any Iddat.
• Lastly, Iddat for pregnant women is till the time of
  delivery, whether it is three days, three weeks or three months or even nine months.

Following are the directives related to Iddat
as mentioned in the Qur`an:

• A woman cannot marry another man during Iddat.
• If a woman is pregnant, she is strictly forbidden to hide her
  pregnancy.
• A man has the right to reconcile during Iddat, if he
  does not intend to manipulate or exploit the woman.
• Both the man and the woman have been directed to keep count
  of this Iddat precisely, because this is an important matter for both of them. For
  a husband, for instance, in the sense that during this period he can reconcile and take
  his decision back. And for the wife, for instance, in the sense that she cannot marry
  another man during this period.
• A man is directed not to turn his wife out of the house
  during Iddat. The only exception is if the wife has committed adultery. Similarly,
  a woman is directed not to leave her house.
• It is obligatory for the man to provide for the wife’s
  regular expenses during Iddat according to his financial position.

Reconciliation:

The man has the right to reconcile with his
wife and take back his decision to divorce. In case the man decides on withdrawing his
decision of divorce, the couple shall be allowed to live together as man and wife. On the
other hand, if at the end of the Iddat the man is still of the opinion that it is
in the best interest of both the parties concerned to live a separate life, he shall then
uphold his initial decision — the Qur’an advises the man that whatever decision he
takes at the end of the iddat he should ask two just and honest persons to act as a
witness to his decision. In case the initial decision of divorce is upheld at the end of
the period the relationship of man and wife shall now be severed. The woman shall no
longer be the wife of the man and vice versa. Both the man and the woman can now marry
anyone of their respective choice and if the two want to reunite, they can do so by
entering into a new nikah (marriage) contract.

These directions, are the basic prescription
of the Qur’an regarding divorce. However, there are certain extensions to this
prescription also given in the Qur’an:

As stated earlier, if during the iddat the
man decides on withdrawing his decision, the couple can carry on their lives as man and
wife. Later on, if such circumstances arise once again where the man decides on divorcing
his wife, the same directions shall apply (as explained above). If once again (after the
second instance of divorce) the man decides (during the iddat) to withdraw his
decision he shall be allowed to do so, and the two shall carry on living as man and wife.
On the other hand, if the man decides on upholding his decision of divorce (at the end of
the iddat) the two shall now be separated. Now, once again, if at some later time
the man and the woman wish to reunite, they can do so by entering into a new nikah (declaration
of marriage).

If a person, who had divorced his wife
twice, and in both the instances had withdrawn his decision during the iddat, due
to any reason, decides for the third time to sever his relationship with his wife, he
shall once again be allowed to do so with the following alterations in the directions
explained above:

1. He shall not be allowed to withdraw his decision during iddat;
   and
2. he shall not be allowed to remarry the woman after the expiry
   of iddat.

In this way, the Qur’an has practically
closed all doors of reunion between the man and the wife after the third instance of
divorce. There is only one exception to this rule: If (after the third instance of
divorce) the woman marries another person and then due to any reason (other than to let
the woman reunite with her first husband) that other person divorces the woman (or dies),
the woman shall now be allowed to remarry her first husband. It must be kept in mind that
after the second husband divorces the woman, all rules that were applicable to the divorce
of the first husband shall apply to this divorce as well.

After the third instance of divorce, the man
is not supposed to provide for the regular daily expenses of the woman nor is it required
that the woman stay in the same house. The reason is that now the man and the woman are
separated forever and there is no chance of reconciliation or remarriage. While the
purpose of these directives during the period of Iddat is primarily to make the
environment conducive for reconciliation. The only exception is if a woman is pregnant. In
this case a man will provide the regular expenses of the woman, but even in this case, he
would not be bound to provide for her lodging. This is inferred from the same directive of
the Qur’an in Surah Baqarah which directs the man, who has not reconciled
after the first or second divorce and is separated from his wife, to provide for the
regular expenses of the woman if she is feeding his child, till the time that she does so.
The reason is that in both these cases the woman is providing nourishment to the child and
it is the responsibility of the father to provide for the expenses incurred on this
nourishment.

Some Other directives related to divorce:

According to the Qur’an, if a husband
finally comes to the conclusion that both he and his wife cannot live together then he
should send her away “in the best of manners”. In this regard there are a few
directives of the Qur’an, which have to be followed.

• The Qur’an forbids the husband to take back any material
  things that he has gifted to his wife.

The two exceptions in this case are:

1. If a man is hesitant to divorce his wife
   because he has given too much wealth to his wife and fears that he will be left with
   nothing after the divorce, then the matter should be taken before the court. If the court
   is satisfied that both of them cannot live together and the man is only hesitant to give
   divorce because of the amount of wealth that he would lose, then there is no harm if the
   woman gives back some of the wealth to get the divorce.

2. If a woman is guilty of adultery then the
   man has the right to take his wealth back.

• If a man divorces his wife before deciding about the amount
  of “Meher” and before any physical relationship, then he is not supposed
  to give his wife any “Meher”, although it will be an act of “Ihsan”
  if he gives his wife something before she leaves. Likewise, if a man divorces his wife
  after deciding about the amount of “Meher” but before any physical
  relationship is established, then the man is supposed to give her half of the amount of
  “Meher” decided. But the wife with her own free will can forgo that
  amount. Similarly, the man, with his own free will may give the full amount. Here the
  Qur’an has strongly recommended the man to give the full amount as it is an act of
  “Taqwa”.

• In Surah Baqarah, once more the man is strongly
  recommended to allow their wives to take anything that they may desire from their house,
  while they leave. This act according to Qur’an is a sign of those who fear God.

• According to Surah Baqarah, The husband has the right
  to reconcile only if he truly believes that he and his wife can try to live a decent life
  together. If a man reconciles with the intention to exploit his wife and to “get even
  with her” in some way, then he is setting himself for Divine punishment.

• The husband, the family and other relatives are strictly
  forbidden to create difficulties and hindrances for a woman who wants to get married to
  any other man after the expiry of her iddat.

• The Qur’an has directed the families and relatives of a
  husband and a wife, seeking divorce, to intervene and try to find a resolution to the
  conflict that is resulting in the divorce so that the family – the relation between
  the husband and the wife — is not broken.

This is the Shari`ah as far as the
directives regarding divorce are concerned.