Why did Islam legalize divorce

 

Many Westerners criticize Islam for permitting divorce , and they consider this evidence of Islam’s disdain for women and the sanctity of marriage. Some Muslims who were educated in Western cultures and were ignorant of the rulings of their Sharia imitated them in this, although Islam was not the first to legalize divorce . Jewish law came before it, and the world knew about it long ago.

These critics looked at the matter from only one angle, which is that it harms women. They did not look at the issue from all sides, and their opinion was based on unconscious emotions that do not understand the wisdom behind it, its causes, and its motives. Islam

assumes , first, that the marriage contract is permanent, and that the marriage continues between the spouses until death separates them. Therefore, it is not permissible in Islam to set a specific time for the marriage contract. However, Islam, while requiring that the marriage contract be permanent, knows that it is only legislated for people living on earth, who have their own characteristics and human natures. Therefore, it legislated for them how to be freed from this contract, if life becomes difficult, the paths become narrow, and the means of reform fail. In this, it is completely realistic and completely fair to both the man and the woman. There are many reasons and motives that occur between spouses, which make divorce a necessary necessity and a definite means to achieve goodness and family and social stability for each of them. A man and a woman may marry, and then it becomes clear that there is a difference in morals and a dissonance in character between them, so each of the spouses sees himself as a stranger to the other, repelled by him. One of them may learn from the other after marriage something he does not like or accept in terms of personal behavior or a hidden defect. It may appear that the woman is sterile and the highest goals of marriage cannot be achieved with her, and he does not desire polygamy or is unable to do so, and other reasons and motives that do not allow love between the spouses and do not allow cooperation in life’s affairs and fulfilling marital rights as God has commanded. Divorce is therefore an inevitable matter to be done to get rid of the marriage bond that has become unable to achieve its purpose, and if the spouses were forced to remain in it, hatred would eat away at their hearts, and each of them would plot against the other and seek to get rid of him by whatever means he finds available. This may be a reason for each of them to deviate. And an outlet for many evils and sins, that is why divorce was prescribed as a means to eliminate those corruptions, and to get rid of those evils, and for each of them to replace his wife with another husband, with whom he may find what he lacked with the first, so that the saying of Allah the Almighty is fulfilled: (And if they separate, Allah will enrich each from His abundance. And ever is Allah Encompassing and Wise). This is the solution to those intractable problems that is consistent with the logic of reason and necessity, human nature and life circumstances. There is no harm in citing what (Beetham), the English jurist, said, to demonstrate to those panting after Western civilization and its systems that what they approve of that civilization, its sons who know its secrets and live its results find ugly.











(Beetham) says:




(If a draft law were to be drawn up that forbade the dissolution of companies, and prevented the removal of guardians, the removal of agents, and the separation of companions, all people would cry out: It is the height of injustice, and they would believe that it was issued by an imbecile or a madman. How strange that this matter, which contradicts nature, is contrary to wisdom, is rejected by interest, and is not in line with the principles of legislation, is decided by laws as soon as the contract is concluded between the spouses in most civilized countries, as if they are trying to distance people from marriage, for the prohibition of leaving something is a prohibition of entering into it. If the occurrence of alienation and the strengthening of discord and hostility is not unlikely to occur, which is better? Binding the spouses with a strong rope, so that hatred eats away at their hearts, and each of them plots against the other? Or dissolving the bond between them, and enabling each of them to build a new home on strong foundations? Or is replacing one husband with another not better than adding a mistress to a neglected wife or a lover to a hateful husband?)

When Islam permitted divorce , it did not ignore the harm that would result from it to the family, especially the children. However, it noted that this was less dangerous when compared to the greater harm that would befall the family and the entire society if the troubled marriage and the weak relationships that bind the spouses together were maintained against their will. So it preferred the lesser of two harms and the lesser of two evils.

At the same time, he legislated legislation that would be a treatment for its effects and consequences, so he established the mother’s custody of her young children, and for her female relatives after her, until they grow up, and he made it obligatory for the father to provide for his children, and the wages for their custody and breastfeeding, even if the mother was the one who did that. On the other hand, he made divorce abhorrent and hated it in people’s hearts, so the Prophet, may God bless him and grant him peace, said: “Any woman who asks her husband for a divorce without a valid reason, the scent of Paradise will be forbidden to her.” He warned against being lax about it, so the Prophet, may God bless him and grant him peace, said: “What is the matter with one of you who plays with the limits of God, saying: I have divorced her, I have taken her back?” And he, may God bless him and grant him peace, said: “Is the Book of God being played with while I am among you?” He said this about a man who divorced his wife without a valid reason. Divorce

is considered the last resort, and should only be resorted to when the matter becomes serious and the disease becomes severe, and when no other treatment is effective. He advised taking many measures before resorting to it, so he encouraged the husband to be patient and tolerant with his wives, even if they dislike some things from them, in order to preserve the marital life, (And live with them in kindness. For if you dislike them - perhaps you dislike a thing and Allah makes therein much good). He advised the husband, if he notices disobedience from his wife, to treat her with gradual discipline: preaching, then desertion, then light beating, (And those from whom you fear disobedience, admonish them and forsake them in the beds and strike them. But if they obey you, seek not a way against them). He advised the wife, if she senses a lack of enthusiasm in the marital relationship and her husband’s inclination towards her, to do what will preserve this relationship and have a good effect in returning souls to their purity, by giving up some of her marital or financial rights, to encourage him and reform what is between them. Arbitration is permitted between them if they are unable to reconcile their differences through their own means. All these procedures and means are taken and tried before divorce is reached , and from this it becomes clear what a great importance relationships and marital life have before God.









What Allah has joined and established should not be severed unless there are serious and grave reasons that require separation. This should not be done except after exhausting all means of reconciliation.

From the guidance of Islam regarding divorce , and from following the reasons and causes that lead to divorce , it becomes clear that just as divorce is in the interest of the husband, it is also in the interest of the wife in many matters. She may be the one seeking the divorce and desiring it, so Islam does not stand in the way of her desire. In this, her status is elevated and her value is appreciated, not belittling her value, as the claimants claim. Rather, her value is belittled by ignoring her desire and forcing her to be bound by a bond that she hates and is harmed by.

This is not belittling the sanctity of marriage, as they claim, but rather it is a means to create a correct and sound marriage that achieves the meaning of marriage and its lofty goals, not a sham marriage devoid of all the meanings and purposes of marriage. Islam

does not aim to maintain the marital bond in any way, but Islam has set goals and objectives for this bond, which must be achieved, otherwise it should be abolished, and replaced by what achieves those goals and objectives.

It is also raised about the wisdom of making divorce in the hands of the man?? And does not that diminish the status of the woman??
In this regard, we say: Severing the marital bond is a serious matter, which has far-reaching effects on the life of the family, the individual, and society. It is wise and just not to give the authority to decide on this and end that bond, except to those who realize its seriousness, appreciate the consequences that will result from it, and weigh matters with the scale of reason, before proceeding to implement it, far from rash whims, impulsive emotions, and sudden desires.

It is certain that a man is more aware and appreciative of the consequences of this matter, and is more capable of controlling his nerves and curbing his emotions when angry and in a state of turmoil. This is because a woman was created with a nature and instincts that make her more affected and more quickly subject to the rule of emotion than a man, because the function for which she was prepared requires this. If she loves or hates, and if she desires or becomes angry, she rushes after emotion, not caring about the results that result from this rush and not considering the consequences of what she does. If divorce were in her hands, she would proceed to sever the bonds of marriage for the most trivial reasons and the smallest disputes that are not absent from married life, and the family becomes threatened with collapse at any moment.

This does not mean that all women are like this, but there are women who are intelligent, patient, and able to control themselves when angry with some men, and there are men who are more affected and quicker to react than some women, but the most common and basic thing is that women are as we mentioned, and legislation is based on what is common and what is the case with men and women, and does not consider rare and exceptional cases. There is another reason for the man’s exclusive right to break the bonds of marriage.

The promulgation of divorce entails financial consequences, which obligate the husbands: it dissolves the deferred portion of the dowry if it exists, and maintenance is obligatory for the divorced woman during the waiting period, and compensation is obligatory for the divorced woman to whom it is due, and the husband loses what he paid as a dowry and what he spent in order to complete the marriage, and he needs new money to establish a new marriage, and there is no doubt that these financial costs that are incurred byDivorce should prompt husbands to be patient, control themselves, and consider the matter before proceeding with divorce . He should not proceed with it unless he sees that it is a matter that is inevitable and unavoidable.

As for the wife, she will not suffer any financial losses from divorce , which would prompt her to be patient and consider before proceeding with it – if she is able to – rather, she gains from it a new dowry, a new home, and a new groom.

It is better for married life, and for the wife herself, that the decision regarding the fate of married life be in the hands of the one who is most concerned for her and most stingy with her.

The Sharia did not neglect the woman’s side in pronouncing divorce , as it granted her the right to divorce , if she had stipulated a valid condition in the marriage contract, and the husband did not fulfill it, and the Sharia permitted her to divorce by agreement between her and her husband, and this is usually done by her giving up to the husband or giving him some money, which they both agree upon, and this is called khul’ or divorce for money, and this happens when the wife sees that it is impossible to live with him, and she fears that if she stays with him she will be violating his rights, and this is what God Almighty explained in His saying: (And it is not lawful for you to take back any 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 be able to keep within the limits of God, then there is no blame upon either of them for that by which she ransoms herself).

She has the right to request a separation between her and him if he is unable to provide for her, and the same applies if she finds a defect in the husband that would cause the marital objectives to be lost, and it is not possible to stay with him while he is present, except with harm that befalls the wife, and it is not possible to recover from it, or it is possible after a long time, and the same applies if the husband mistreats her and hurts her in a way that is not appropriate for her like her, or if he is absent from her for a long time.

All of these matters and others give the wife the right to request a separation between her and her husband, to protect her from falling into what is forbidden, and to protect married life from its objectives from being disrupted, and to protect the woman from being…

 

Divorce is one of the issues raised by Orientalists - like other issues - with the intention that Islam wronged women when it made divorce in the hands of men and not women. Here we would like to ask a question: Why was divorce legalized? Then we will follow it with another question: Why was divorce in the hands of men and not women? Does a woman not have the right to annul the contract if her husband does something that spoils her life or spoils her religion?


Why was divorce legalized?


Some people may think that divorce is one of the rituals of Islam, or that Islam made it obligatory, or praised it or urged it, but the matter is completely different.
Divorce is the dissolution of the marriage bond by explicit or implicit words with the intention, and its ruling may differ. It may be permissible if it removes harm to one of the spouses. Allah the Almighty says:
(Divorce is twice. Then, either keep [her] on acceptable terms or release [her] with good treatment) [Al-Baqarah: 229].
It may be obligatory if the harm caused to one of the spouses cannot be removed except by it. A man complained to the Messenger of Allah (peace and blessings of Allah be upon him) about his wife’s vulgarity, so he said to him, “Divorce her.” Narrated by Abu Dawud.
It may be forbidden if it causes harm to one of the spouses but does not bring any benefit to the other party. In the hadith: “Any woman who asks her husband for a divorce without a valid reason, the scent of Paradise will be forbidden to her.” Narrated by Abu Dawud. He also said, “The most hated of permissible things to Allah is divorce.” Narrated by Abu Dawud.
It may be recommended, and this is when the woman is negligent in the rights of Allah that are obligatory upon her, such as the obligatory prayer, and he cannot force her to do it, or she is not chaste.
Imam Ahmad said: He should not keep her, because it would be a deficiency in his faith and there is no guarantee that it will spoil his marriage.
Ibn Qudamah said: It is possible that divorce is obligatory in these two cases.
Hence, resorting to the judiciary is only the resort of the one in need, and the last resort is the treatment, which is cauterization if no other medicine is available.
Sheikh Al-Qaradawi says: “The divorce that Islam has legislated is more like a painful surgical operation, in which a sane person endures the pain of a wound, or even the amputation of a limb, in order to preserve the rest of the body and prevent greater harm.
Imposing this life by the authority of the law is a harsh punishment that a person does not deserve except for a major crime. It is worse than life imprisonment, rather it is an unbearable hell. One of the wise men said long ago: ‘One of the greatest calamities is associating with someone who does not agree with you and will not leave you.’
Al-Mutanabbi said:
‘One of the hardships of life for a free man is to see an enemy who cannot be friends with him.’
If this is said about a friend whom a person meets for days a week or hours at work, then how about the wife who is his houseguest, his companion, and his life partner?
With this, we can answer the first question, which is why was divorce legislated? The answer is that it was legislated to dissolve the bond of marriage if life


before divorce


became impossible. Since divorce is the end of the road and the painful treatment for a serious illness, it must be preceded by several things so that people do not resort to… To him, and from that:
1. Choosing a good wife, provided that the basis of the choice is religion (“So marry the one who is religious, may your hands be rubbed with dust”) agreed upon.
2. Looking at the fiancée, as it is more likely to lead to affection.
3. The woman and her guardians should be concerned with choosing a man of good character and religion.
4. Stipulating the woman’s consent and not forcing her.
5. Consulting mothers in choosing husbands.
6. The necessity of treating each other well.
If these steps are taken and the unexpected happens, the following steps will result in treatment:
1. Calling for patience, for perhaps there is good in evil (“Perhaps you dislike a thing and Allah makes therein much good”) [An-Nisa’: 19].
2. Making both parties aware of their responsibility towards the other (“Each of you is a shepherd and each of you is responsible for his flock”) narrated by Al-Bukhari.
3. Preaching with gentle words, provided that the words remind of the consequences of the matter and frighten from Allah’s threat (“Advise them”) [An-Nisa’: 34].
4. Abandonment, provided that the abandonment is in the bed (“And leave them alone in their beds”) [An-Nisa’: 34].
5. Hitting, but not severely so that it does not break a limb or leave a mark, and one should avoid hitting the face (“And hit them”) [An-Nisa’: 34].
6. Arbitration, provided that each spouse sends an arbitrator from his side (Send an arbitrator from his family and an arbitrator from her family) [An-Nisa: 35].


Stages of divorce:


It is known that the Sunnah divorce occurs in stages and under certain circumstances, including:
1. That the divorce be during a period of purity in which he has touched her. 2. That the divorce be with
one divorce, during which the woman observes the waiting period in the marital home and does not leave it.
3. If the dispute returns, the second divorce is given.
4. If the situation continues and the husband does not return to his wife, the divorce is a minor irrevocable divorce.
5. If the matter becomes heated after the two divorces, the third divorce is given, and with it the separation is completed, as she is separated from her husband with a major irrevocable divorce, and she is not permissible for him until she marries another husband.


Why is divorce in the hands of the man?


This question is usually raised as if it is unfair to the woman, but first we say that this matter is a test from Allah, the Almighty, and He knows best the condition of His servants (Does He not know who He created? And He is the Subtle, the Acquainted) [Al-Mulk: 14].
Divorce is in the hands of the man for two reasons:
1. The man is the one who provides from the beginning of the marriage, paying the dowry, establishing the home, and spending on the family.
2. The man is naturally prepared to be patient and rational, and for him, matters usually occur after knowledge and deliberation. He is less emotional, more self-controlled, more in control, and more aware of the consequences of things. Allah the Almighty says (Because Allah has favored some of them over others and because they spend from their wealth) [An-Nisa’: 34].


Or does the woman not have the right to annul the contract?


Although Islam has made divorce in the hands of men, women have something similar to it in several cases:
1. Khul’: which is a woman’s ransom from her husband whom she hates with money. This is a form that has been made in the hands of women, similar to divorce being in the hands of men, because if a woman finds that her life with a man makes her not uphold the limits of Allah, and she hates living with him on this basis, then Islam permits her to ransom herself from him with the dowry he gave her. In the case of Zayd ibn Thabit, the Messenger of Allah (peace and blessings of Allah be upon him) said to Zayd’s wife (Do you want to return his garden to him? She said: Yes. He said to her husband: Accept the garden and divorce her once) Al-Bukhari.
2. If the woman stipulates that the divorce is in her hands and the man agrees to that, then the matter is hers.
3. Divorce due to lack of support: If the man keeps his wife and does not support her, then it is permissible for her to take her case to the court and divorce him.
4. Divorce due to absence: This is if the man travels and his whereabouts are not known, or he travels and is absent for a long time. There is a difference of opinion among scholars regarding this period, so the woman may take her case to the judge and divorce her from her husband.