Dissolution of a Marriage
Jamaal al-Din Zarabozo
436
Having said what was just said about marriage, Islam, though, is also a practical religion. It takes into consideration all possible common scenarios. It is possible for a man and woman to enter into a union with good intentions yet their personalities and likes simply do not coincide with one another. There are times in which a good marriage simply cannot be achieved and the spouses enter into a state of misery. Under such circumstances, Islamic law allows for an end to the marriage and their suffering.[1] The goal is to either stay together in a friendly manner or to separate in a goodly manner. Thus, for example,
Allah says,
“And when you have divorced women and they have fulfilled the term of their prescribed period, either take them back on reasonable basis or set them free on reasonable basis”
(2:231).
Allah also says,
“Then when they are about to fulfill their term appointed [bringing an end to the divorce], either take them back in a good manner or part with them in a good manner”
(65:2).
There are basically three ways in which a marriage is dissolved in Islamic Law. The first is talaaq, commonly translated as “divorce.” This is a pronouncement of divorce made by the husband. After this pronouncement, the wife enters into a “waiting period” of approximately three months, during which time they may simply reunite as husband and wife. However, after the third pronouncement of talaaq, reunification during the waiting period is no longer permissible and the two must separate completely. A second form is known as khul’. This is where the wife is not satisfied in the marriage and offers something to the husband to release her from the marriage. For example, she may offer to return the dower in exchange to bringing an end to the marriage. A third form is where the rights of the wife are not being met by the husband and therefore she turns to a judge to bring an end to the marriage.
Obviously, divorce is not a desired goal or a light matter. In a perfect world, all married couples would be in bliss. However, there are times in which this option is the best for all parties concerned.
references
Unfortunately, in some Muslim cultures today, divorce has become so “shameful” they have neglected this important guidance of Islamic Law, leading to spouses suffering in silence. This is definitively not the goal of Islamic Law concerning such issues.
The Rights of a Husband and a Wife
Jamaal al-Din Zarabozo
498
The first thing that every married person must realize that one’s spouse is first and foremost another Muslim. He/she is one’s brother/sister in Islam. Therefore, all the rights that fall upon a Muslim due to the general brotherhood of Islam are also due to one’s spouse. There are books on the behavior of a Muslim, brotherhood and love and loyalty among Muslims and all of those principles apply to a married person as his spouse is part of that Islamic brotherhood and community. Furthermore, the Prophet (peace be upon him) also stressed this point when he stated, “None of you truly believes until he loves for his brother what he loves for himself.”[1] However, one’s spouse has even more rights upon a person due to the great and important contract that has been contracted between them.[2]
Therefore, when discussing the rights of the husbands and wives, this matter should not be looked at in a cold or legal fashion. The relationship between the husband and wife must be much more than a matter of rights stated by the law that each must abide by. Instead, it should be a relationship of love, support and mutual understanding. Each spouse should take into consideration the needs and abilities of the other spouse. They should attempt to make each other happy, even if they have to compromise sometimes, and not simply be out to make sure that they are getting all of their rights in the marriage. Actually, it is usually the case that neither spouse is completely fulfilling the rights of the other and making the other happy. Hence, they both have to realize and accept their shortcomings.
The Prophet (peace be upon him), in particular, advised the husbands to treat their wives in the best way¾ perhaps due to their greater authority or due to their greater strength, in general. The Prophet (peace be upon him) said, “The best of you is the one who is best to his family (wife) and I am the best of you to my family.”[3] The Prophet (peace be upon him) also advised, “I advise you to treat women well for they have certainly been created from the upper part of the rib and the most crooked part of the rib is the upper part. If you then try to make it straight, you will break it off; if you leave it, it will remain crooked. So, I advise you to treat women well.”[4]
Actually, both spouses, in general, fail to some extent in their fulfilling of the other’s obligations. Hence, before criticizing the other or being harsh with the other due to some shortcoming, the person should look to himself and realize what wrong he himself is doing.
At the same time, though, Islamic Law has clearly laid down some rights and responsibilities so that both parties in the marriage know exactly what is expected of them and know what they need to fulfill to be a proper spouse. Thus, for example,
Allah says,
“And they [women] have rights [over their husbands] similar to those over them according to what is reasonable”
(2:228).
In sum, the rights of the wife or the obligations of the husband include, among others, the following:
(1) Receiving her proper dower:
Allah says,
“And give the women their dower with a good heart; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it without fear of any harm”
(4:4).
(2) Being fully and completely financially maintained by her husband: Allah says, “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means” (4:34). Furthermore, in a hadith recorded by al-Bukhari and Muslim, the Prophet (peace be upon him) told Hind bint Utbah, when she complained that her husband (Abu Sufyan) was very stingy and was not maintaining her and she asked if she could take from his wealth without his knowledge, “Take what is sufficient for you and your child, according to what is customary.”
(3) Being treated in a proper and kind manner: Allah states, “And consort with your wives in a goodly manner, for if you dislike them, it may well be that you dislike something which Allah might yet make a source of abundant good” (4:19).
(4) Having the right to sexual intercourse: In the Sahih of Ibn Hibban there is the following narration: The wife of Uthman ibn Madh’oon complained to the Messenger of Allah (peace be upon him) that her husband had no need for women. During the day, he would fast and at night, he would pray. The Prophet (peace be upon him) asked him, “Am I not the best example for you to follow?” He answered, “Certainly, may my father and mother be sacrificed for you.” The Messenger of Allah (peace be upon him) then told him, “As for you, you pray during the night and you fast during the day. Certainly, your wife has a right upon you. And your body has a right upon you. So pray and sleep and fast and break your fast.”
(5) Having the right to “privacy”: Note the following hadith of the Prophet (peace be upon him): “Is there any man among you who goes to his wife, closes the door behind then, covers themselves and conceal themselves by Allah’s concealing.” They said, “Yes.” He then said, “Then he sits after that [with others] and he says, ‘I did this and that.’” They were silent. He then turned to the women and said, “Do you any of you talk about such things?” They were also silent. Then a young girl came walking on her toes so the Prophet (peace be upon him) could see her and hear her and she said, “O Messenger of Allah, they [the men] certainly talk about it and they [the women] also talk about it.” He said, “Do you know what they are like? They are like a female devil who met a devil in the street and they satisfied their desires with the people looking on.”[5]
(6) The right to being taught or learning her religion.
On the other hand, the rights of the husband or the responsibilities of the women include:
(1) Being the head of the household: Allah has said, “Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means” (4:34). Although this is usually stated as a right of the husband, it is actually a heavy responsibility on his shoulders, as it means that he has the responsibility to guide his family and keep them along the straight path.
(2) Having the right to be obeyed: This goes with the first right. A person cannot be the head of something if he has no authority.
(3) Having his wife answer his call to meet his sexual needs: The Prophet (peace and blessings of Allah be upon him) said, “If a man calls his wife to his bed and she refuses to come, the angels curse her until the morning.”[6]
(4) That the wife will not allow anyone in his house except by his permission: In a hadith recorded in al-Bukhari and Muslim, the Messenger of Allah (peace be upon him) said, “Do not allow anyone into his house except by permission.”
If the husband and wife enter into the marriage with the right intention of pleasing Allah and pleasing each other, recognizing their roles and responsibilities in the marriage and treating each other with proper Islamic behavior, Allah willing, their union will be a blessed union that will stretch from this life into the Hereafter.
references
Recorded by al-Bukhari and Muslim.
Allah says in the Quran, “And how could you take it [back] while you have gone in unto each other and they have taken from you a firm and strong covenant” (4:21).
Recorded by al-Tirmidhi and ibn Majah. According to al-Albani, it is sahih. See Muhammad Nasir al-Din al-Albani, Sahih al-Jaami, hadith #3315.
Recorded by al-Bukhari.
Recorded by Abu Dawud. According to al-Albani, it is sahih. See al-Albani, Sahih al-Jaami, hadith #7037.
Recorded by al Bukhari.
Whom One Can Wed
Jamaal al-Din Zarabozo
435
In soorah al-Nisaa’ verses 22-24, Allah has delineated what women a Muslim man may marry. Those categories are straightforward. However, there are a couple of issues that may be of extreme importance for Muslim converts, especially those living in non-Muslim lands. (Note that the question of remaining with non-Muslim spouses was discussed earlier.)
One important issue is that of marrying men or women who are not chaste. There is a difference of opinion among the scholars over whether or not it is allowed to marry a woman whom one knows to be a fornicatress.[1] The majority of the scholars (meaning the Malikis, Shafiis and Hanafis) seem to think it is disapproved but allowable while a group of scholars say that it is forbidden. The difference of opinion revolves around the understanding of the verse, “The fornicator marries none but a fornicatress or a polytheistic woman and the fornicatress marries none but a fornicator or a polytheist. Such a thing is forbidden for the believers” (24:3). The majority of the scholars state that this verse is showing that the act of marriage with such a woman is blameworthy but not prohibited. They also based this on the following hadith: “A man came to the Messenger of Allah (peace be upon him) and said, ‘I have a wife who is most beloved to me but she does not keep the hand of the toucher[2] from her.’ He said, ‘Divorce her.’ The man replied, ‘But I cannot live without her.’ He said, ‘Then enjoy her with that [deficiency].”
However, a number of early scholars clearly stated that it is forbidden to marry a fornicatress until she repents from her act of fornication. This was the opinion of Ahmad ibn Hanbal among others. This seems to be the strongest and correct opinion based on the verse above. As for the hadith that is quoted, Imam Ahmad considered it a weak hadith. Assuming it is authentic, as some scholars have stated, it is not explicit that the woman would actually commit illegal sexual intercourse. Instead, one could say that the woman was a little promiscuous or free with other men but not to the extent that she would commit illegal sexual intercourse. If a man has a wife of that nature, he should divorce her as the Prophet (peace be upon him) explicitly told the man in this hadith. This, in fact, is further evidence that one should not marry a fornicatress.
It could be argued that in the case of a Muslim convert, he should be extremely careful about this issue. If the person is new to Islam, he should want to be with a spouse who would improve his faith and strengthen his resolve to worship Allah properly. A spouse of immoral character would obviously not be the right choice for anyone hoping to be a true believer but it may be even more dangerous for someone whose faith is still new and vulnerable.
Another important question is whether it is allowed for a Muslim man to marry a Jewish or Christian woman. This has been a hotly debated question among the scholars, with the majority permitting it (based on Quranic verse 5:5), a minority prohibiting it and another minority applying strict conditions to it.[3] Without getting into the details of that debate, once again, for the convert, he should consider his particular situation carefully. Being new to Islam, he should not open up doors to temptation and reverting from his new faith. It is not expected that non-Muslim women will support him in his faith and aid him to grow in his faith like pious Muslim women would. Hence, there is no question that, in general, converts to Islam should refrain from marrying non-Muslim women.
As for a Muslim woman or a female convert marrying a non-Muslim man, Al-Ghummaari wrote, “The marriage of a Muslim woman to a non-Muslim man is forbidden, as is clearly stated in the Quran, and this is something that is known by necessity in the religion. If anyone believes that such a marriage is permissible, he is definitively a disbeliever.”[4] In general, the man is the head of the household. Hence, women marrying non-Muslim men presents a much greater danger for the woman and is thus prohibited.
references
A parallel discussion could be given for the question of a woman marrying a man who is known to be a fornicator.
A form of this Arabic word can be in reference to sexual intercourse. However, when it is explicitly used with the word, “hand”, as it is in this narration of the hadith, it is in reference to touch and not to sexual intercourse. Allah knows best.
Even those who allow it (and disapprove of it) lay down some conditions for its permissibility. (1) She must be practicing her religion. (2) The woman must not be from Ahl al-Harb (those peoples who are at war with the Muslims). Ibn Abu Shaibah records in his Musannaf that ibn Abbaas stated, “It is not allowed to marry the women of the People of the Book if they are from the people fighting Islam.” Similar statements were also made by other early scholars. The difference between ahl al-Dhimmah (the non-Muslim women citizens living under the control of the Muslim state) and others seems to be clear, especially when compared to the women living in, for example, the United States. In the United States, the courts tend to favor the mother in custody battles and aspects of that nature, without taking into consideration the question of the religion of the child. Such would not be the case in an Islamic state. (3) The Woman must be afeefah or chaste. A Muslim is not allowed to marry a Jewish or Christian woman who is unchaste, who does not believe that fornication and adultery are bad and so forth.
Abdullah al-Ghumaari, Rafu al-Shakk wa al-Irtiyaab an Tahreem Nisaa’ Ahl al-Kitaab (Tanjah, Morocco: 1989), p. 25.
