Marriage and Divorce

In Islam, marriage is when a man and a woman decide to live together and share sexual pleasure based on an agreement. It is a strong contrast between the man and the woman. Through this contract, they both gain certain responsibilities and rights. However, Islam does not see marriage as a spiritual act or sacrament, as all the major religions in India do. It has no spiritual meaning beyond a contract between two persons in the name of God. It only requires the consent of the bride, the presence of the guardian and the groom, and not less than two people as witnesses to confirm that this contract has taken place. The groom has to pay a marriage dowry to the bride as she demands. Thus, we understand that there is disagreement between Muslims and other religions even in the basic principles of its marital laws. The influence of these basic principles will be present throughout their matrimonial laws. How is a uniform civil code possible for unifying fundamentally contradictory laws? Viewing marriage as a mere contract would undermine the religious freedom of others, and if it is viewed as a sacrament, it will be against the freedom of Muslims. Therefore, for this reason, marriage laws cannot be unified.

Islam sees marriage as a contract between spouses to live in harmony and enjoy sex in a way that shares love and mercy. It gives both the man and the woman the freedom to withdraw the contract if the standards mentioned cannot be fulfilled. Islam does not put forward the unnatural and impractical proposition of uniting spouses who are not satisfied with each other by the noose of law. Principles such as ‘those who are unified by God cannot be separated by humans’ do not exist in Islam. Islam, which permits divorce when separation is necessary, lays down its laws in a way that does not detract from the rights of men or women nor discriminate against anyone.

Islam teaches that divorce should result only if the spouses’ reasons are severe and they cannot continue to live together. If an ill-conduct is found in either spouse which can never be agreed upon, the Qur’an enjoins correcting it by advice as a first step, and if they persist, in not sharing the bed, and if they persist, then disciplining them gently. However, if the dissent between them is so grave that they are unable to come to an understanding, two righteous mediators from both the male and female sides should sit together and try to reconcile the spouses. The Qur’an says that Allah will restore harmony between them and bless them to continue together. And if that also fails to work out, only then Islam enjoins divorce as a course of action.

It is not Islamically justifiable to disclose absolute personal reasons for divorce in front of the court, reveal all the crimes committed by one’s ex-spouse to the defendant, or destroy the pride of either spouse with their lawyers’ tongues.
Muslims feel that there is no satisfaction or peace in having to live with someone whom one has decided not to live with under a court order. It often leads to violence, and the vulnerable woman is further abused. Therefore, Islam does not agree with the view that divorce is accomplished only when the court is convinced. That is why Muslims oppose it.

Both man and woman have the right to annul the marriage if it no longer meets the goals of marriage, which is a contract between a man and a woman to share sexual satisfaction and love while living in peace together. Since the said contract comes into existence after the man has spent the money called ‘mahr’, if the man cancels the said contract, he is obliged to give the full mahr to the woman. Such a divorce is known as ‘Talaq’. And when the woman asks to cancel the contract by returning the mahr she received from the man, it’s called ‘Khul”. Islam treats all women’s rights fairly and teaches that no matter how large the amount of mahr is paid, a man must not take anything back from it while divorcing a woman, and that he must give her the necessary rewards (mataa’) in addition to the mahr. The Islamic instruction that a divorced woman should be sent away with rewards is enough to show us how honourable it is and considerate of the woman’s feelings.

Islam provides the most psychological guidance in this field, which stipulates that even after (revocable) divorce, the spouse should stay in the husband’s house for three purity periods with all considerations and expenses, and if they stay together and start loving each other during this period, they can continue living as spouses without further conditions. Islam does not restrict any of women’s rights except that it does not create a situation where a divorce can be obtained only after bringing the woman and the man to the court and slinging mud at each other.

Islam allows spouses who have been divorced once to reunite if both of them desire to do so. If the spouses thus united break up again, they have only one more chance to be reunited. If the spouses who are married for the third time separate again, then the first husband cannot marry her unless someone else marries her and she is divorced from him(without pre-agreement). Thus, three divorces were allowed to maximize opportunities for those once married to be reunited. The Qur’an and the sayings of the Prophet teach that these opportunities should be used three times separately. The history of the second Caliph Umar’s punishment of a person who pronounced three talaqs together shows that Islam is against pronouncing three talaqs together.

Translation: Azra Gafoor, Fathima Ameera, Hamida Abdullah & Sumayya Muhammed