by Dr. Ali Shehata
Divorce
Divorce is understood to be the act of fully dissolving a marriage bond between husband and wife, releasing them from all marital obligations. Throughout time, this important issue has been the source of much contention and disagreement. The position of the Judaism, Christianity and Islam is rather variable on divorce and reflects much on the position of the woman.
In Judaism, divorce has historically been completely acceptable, and can in fact be performed for any reason of displeasure. The only major stipulation though is that a husband alone can initiate a divorce.
Jewish belief stems from the idea that a man may divorce his wife if she:
… becomes displeasing to him because he finds something indecent about her. [NIV, Deuteronomy 24:1]
In this case, the man may “write her a certificate of divorce,” and send her out of his house. This verse of Deuteronomy has caused much debate amongst Jewish scholars due to the difference of opinions on what the words “displeasing” and “indecent” mean within their context. The Talmud records their differing interpretations:
Beth Shammai say: a man should not divorce his wife unless he has found her guilty of some unseemly conduct, as it says, because he hath found some unseemly thing in her. Deuteronomy 24:1
Beth Hillel, however, say [that he may divorce her] even if she has merely spoilt his food, since it says, because he hath found some unseemly thing in her. Rabbi Akiba says, [he may divorce her] even if he finds another woman more beautiful than she is, as it says, it cometh to pass, if she find no favor in his eyes. Babylonian Talmud Mishnah: Folio 90a
Both historical and modern day Jewish law are based upon this Hillelite interpretation wherein the man may divorce his wife on grounds of any dislike that he may have. Also, according to the teachings of the Talmud, it is obligatory for a husband to divorce his wife if she is barren, defined as not bearing any children for ten years.
The Mishnah (Talmud: Yevamot 6.6) says that when a married couple is childless for many years, the husband must take another wife in order to fulfill the commandment to be fruitful and multiply: “If a man has taken a wife and been with her ten years, and she has not born child, he may not abstain [from fulfilling the commandment to be fruitful and multiply]. If he divorces her, she may be married by another man, and that man may live with her for ten years.
Rabbi Tahlifa bar Abimi quotes Samuel: “even if he has taken a wife and been with her for ten years [during which time] she has not born a child, he is to be forced [to divorce her].” In the time of the Talmud, divorce depended entirely on the man’s wishes; also, polygamy was permitted. The law only began to change on these two issues in the 12th century, with the laws known as the Ban of Rabbenu Gershom. For more on this ban, see Encyclopedia Talmudit, Vol. 16, pp. 384-390.
A woman’s right to divorce though is quite different in Jewish law—it doesn’t exist. In no circumstance can she actually call for a divorce or give a certificate of divorce. If a Jewish wife desires a divorce from her husband, she can appeal to a Jewish court. She must have a valid reason for why she desires such a divorce though. For instance, if her husband has a physical defect or he is not fulfilling his responsibilities, she may succeed with her petition in court. The court though cannot actually dissolve her marriage, only a husband can truly grant a bill of divorce. If judgment is found in favor of the wife, then the court can whip, fine, imprison, or ex-communicate the husband to coerce him to give the wife a bill of divorce. Although these measures may be taken to compel the husband, he still can refuse to grant a divorce to his wife. This right lies solely with him.
This legal structure has a number of far-reaching consequences. In some cases, husbands choose to leave their wives, deserting them. This places the wife in the dilemma of being unmarried and “undivorced”. The woman is left unable to remarry or to live legally with another man, for to do so means to commit adultery. Moreover, if a woman would choose one of these options (in effect committing adultery), and then bears children, these children, called mamzers, and the next ten generations would be considered illegitimate*. Agunah (literally, chained woman) is the name given to women in such a plight. * “A mamzer shall not enter into the congregation of the Lord; even to his 10th generation shall he not enter into the congregation of the Lord.” [Deuteronomy 23:3]
On the other hand, the runaway husband can still legally marry again or live with a single woman. Since it is legal, the children from either of these two relationships would then be considered legitimate.
In Christianity, on the other hand, divorce is completely forbidden in agreement with the Shammai Jewish school position. There is only one exception to that rule—if a wife is unfaithful to her husband. In this case, a husband may divorce his wife. The New Testament records Jesus as saying:
It has been said, “Anyone who divorces his wife must give her a certificate of divorce.” But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become an adulteress, and anyone who marries the divorced woman commits adultery. [NIV, Matthew 5:31-32]
So a husband may then grant his wife a certificate of divorce if she had committed adultery during their marriage. Otherwise, neither husband, nor wife, can divorce each other.
Islam though, stands on a middle ground between Christianity and Judaism with respect to its laws on divorce. Islam does not entirely forbid divorce, yet it discourages it by all means, providing reconciliation remedies for couples to first apply, in hopes of preserving the marriage. Islamic teachings encourage men to be patient and treat their wives with kindness, even if they are is some element of dislike towards them. The Quran states:
Live with your wives on a basis of kindness and equity. If you dislike them, it may be that you dislike something in which God has placed a great deal of good. {4:19}
The Prophet Muhammad pbuh gave a similar instruction:
A believing man must not hate a believing woman. If he dislikes one of her traits, he will be pleased with another. [Muslim]
If however, the marriage reaches the point of no return, Islam gives right to both partners to end their matrimonial relationship. The husband holds the primary right for divorce, while the court, unlike in Judaism, has full rights to grant the wife a divorce. If the husband dissolves the marriage by divorcing his wife, he cannot take back any of the marriage gifts he has given her. The Quran clearly prohibits them from this, no matter how expensive or valuable these gifts might be:
But if you want to replace one wife with another, and you have given one of them a great amount in gifts, do not take back from it anything. Would you take it in injustice and manifest sin? {4:20}
However, the wife, if she dissolves the marriage, she must return the marriage dowry to her husband. In this case, it is considered fair compensation for the husband who did not want the marriage to end while she chooses to leave him. The Quran has instructed Muslim men not to take back any of the dowry they have given to their wives, except in the case of the wife offering it when she is the one choosing to dissolve the marriage:
And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of God. But if you fear that they will not keep [within] the limits of God, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. {2:229}
This act, referred to as Khula’ in Islamic law, means the separation of the wife in return for a payment; the husband takes the payment of the dowry he gave and lets his wife go.
Another evidence for this practice comes from the words of the Prophet when one woman (The wife of Thaabit ibn Qays ibn Shammaas) came to him seeking a divorce, although she found no fault in the character or religious commitment of her husband—she just didn’t like him. The Prophet asked her, “Will you give back his garden [given to you as the dowry]?” She agreed, and so the Prophet said to her husband to take back his garden, and divorce her. [Bukhari]
In other cases, a Muslim woman might be willing to keep her marriage, but find herself obliged to seek divorce because of some compelling reasons such as: cruelty of the husband, desertion without a reason, a husband not fulfilling his conjugal responsibilities, not providing for her as he should financially, etc. In these cases, the Muslim court dissolves the marriage. Sabiq, A.S. (1972). Fiqh al-Sunnah. al-Qa¯hirah: Da¯r al-Kita¯b al-Isla¯mi¯
In fact, even the secular court’s ruling in such cases is considered Islamically valid as well, as evidenced by the following religious verdict (fatwa) given to a physically and emotionally abused woman who divorced her husband in a US court:
With regard to what you mention, that a woman in your country might arrange her own divorce through the [secular court], if this is for a reason for which it is permissible to seek a divorce, such as disliking her husband, not being able to stay with him or disliking him because of his immoral ways and his indulgence in forbidden and illegal actions, etc.—then there is nothing wrong with her seeking divorce, but in this case she should divorce him by khula’ and return to him the dowry that he gave to her.
But if she is seeking divorce for no reason at all, then that is not permissible and the court ruling on divorce in this case does not count for anything in terms of [Islamic law]. The woman still remains the wife of the man. Now we have a problem. The fact that she is still married to him means that she cannot marry anyone else, but according to the court ruling she is apparently divorced from him, and [can remarry after her Islamic waiting period ends]. I think that the only way out of this problem is that good and righteous people should get involved in this matter, to bring about reconciliation between the man and his wife. Otherwise she has to give him some payment, so that it will be a proper khula’. Liqa’ al-baab al-Maftooh, Uthaymeen
In short, Islam has offered the Muslim women some unequalled rights: she can end the marriage through khula'. A Muslim wife thus can never become chained by a bitter and merciless husband.
