Reclaiming women's right to divorce in Islam
by: : Hasan Mahmud [http://www.ahl-alquran.com/English/document.php?page_id=548}
"If our religious leader didn't grant the divorce, then under sharia I could not remarry", she said. Under sharia law her husband had to consent to the divorce-- even though he had abandoned the family four years earlier and married another woman. The imam had to "negotiate" with his demand of $100,000 plus all her jewellery in exchange of his consent to end the marriage bond. The best the poor wife could do was to borrow $5,000 to pay him and agree to give up child-support payments and alimony, and not to take legal action against him in future. This time he was generous to agree to release her.
This is not centuries ago but in recent time. Not in the Middle East, Pakistan or Somalia but in Canada. It represents "A Muslim woman's sharia ordeal" of centuries.[i] Europe is not any better.[ii] In UK the council in Leyton has dealt with more than 7,000 divorce cases, ninety-nine percent of which were initiated by women "seeking relief". Parvin Ali, founding director of the Fatima Women's Network in Leicester said, "There is no outside monitoring, no protection, no records kept, no guarantee that justice will prevail." Such dire lack of accountability can hardly be called a court, let alone an Islamic one.
In Sharia Law only husbands have the right of "Divorce" that literally means releasing an animal bound with a rope. For a wife it is a struggle in the court through the law of "Khul" which is – "For the purpose of dissolving a connubial connexion in lieu of a compensation paid by the wife to her husband out of her property…….A release for payment means separation in return for remuneration given to the husband….".[iii]
Obviously this law has historically been grave injustice to women; we will see some documents from 17th century Sharia Courts later. It does not take a rocket scientist to realize how much agony and torture she goes through before she wants to break her home. Few years ago when the Egyptian government passed a law that if a wife was willing to pay the remaining of bride-money the court could dissolve the marriage without husbands' consent. In only six working days a staggering number of 3000 women applied in Cairo alone.
Believers willingly follow religious laws even if they suffer. That is why call of justice and humanity is not enough to end violation of Human Rights; we need to bring up a better explanation from the same religion. It is amazing to see that Prophet gave women absolute right of ending unwanted marriage even if it went against his plead and even if the husband was a loving one. Let us look into this:-
Narrated Ibn 'Abbas: Barira's husband was a slave called Mughith, as if I am seeing him now, going behind Barira and weeping with his tears flowing down his beard. The Prophet said to 'Abbas, "O 'Abbas! are you not astonished at the love of Mughith for Barira and the hatred of Barira for Mughith?" The Prophet then said to Barira, "Why don't you return to him?" She said, "O Allah's Apostle! Do you order me to do so?" He said, "No, I only intercede for him." She said, "I am not in need of him."[iv]
It cannot be clearer. On the other hand we did not find a single case where Prophet forced a wife to stay in an unhappy marriage. A well-known report shows that a woman complained to Prophet that her father had forced her into a marriage without her consent. The Prophet in clear words gave her the independent and absolute right to continue or end the marriage.
Even Prophet's wives had the right to leave him without any middle-man:-
Narrated 'Aisha: Allah's Apostle gave us the option (to remain with him or to be divorced) and we selected Allah and His Apostle . So, giving us that option was not regarded as divorce.[v]
Narrated 'Ikrima: The sister of 'Abdullah bin Ubai narrated (the above narration, 197) with the addition that the Prophet said to Thabit's wife, "Will you return his garden?" She said, "Yes," and returned it, and (then) the Prophet ordered Thabit to divorce her……. Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to Allah's Apostle and said, "O Allah's Apostle! I do not blame Thabit for any defects in his character or his religion, but I cannot endure to live with him." On that Allah's Apostle said, "Will you return his garden to him?" She said, "Yes."[vi].
The Quran nowhere says that women do not have the right to divorce. Rather it instructs men to release wives whenever they want: -
"Ye are forbidden to inherit women against their will. Nor should ye treat them with harshness, that ye may take away part of the dower ye have given them, - except where they have been guilty of open lewdness".[vii]
The word "inherit" does not mean inheriting women like property. It was a cultural linguistic expression of that desert society where only slaves could be inherited. "Dower" (Bride Money) cannot be given to anyone except wives. That is why many Islamic scholars including leaders of Sharia Law agree that this verse talks ab
out wives.[viii] Many of them translate the verse as: - 'It is not lawful for you to try to hold your wives against their will"[ix] or "it is not lawful for you to take women as heritage against (their) will".[x]
Still we see Sharia Law stipulating – "A husband has the authority to take his wife back after one or two divorces, eve
n if she does not want to come back".[xi] This is the attitude of Sharia Law to women. These laws, established as Allah's Law, are not only torture on Muslim women but also upfront violation of the Quran and Prophet.
There is another dimension of Khul. If the husband applies his authority of instant divorce he does not have to pay alimony. If he divorces in three progressive steps he has to pay the unpaid amount of Bride Money, child-support and alimony (wife-support) . So he tortures the wife to push her to initiate Khul so that he doesn't have to pay Bride Money, child-support and alimony rather he gets money. It happens today and it historically happened in past Sharia courts in Muslim Khelafat.[xii] Many court cases are recorded to show that the Sharia courts also developed a form for the wife to sign giving up child-support and alimony in addition to more money. This is exactly as it happens even today to Muslim women in Muslim world and even in the West.
It is nothing but mockery to justice and Islam. Muslim women believe in these laws as Allah's Law, submit willingly and unnecessarily suffer so much. Muslim societies will never progress unless they realize the anti-Islamic spirit and contents of Sharia Law and abandon them. In this case it is possible by following the Quran and Prophet. [i] http://www.theglobe andmail.com/ servlet/story/ RTGAM.20050908. wxsharia08/ BNStory/National /[ii] http://www.iht. com/articles/ 2008/11/19/ europe/19shariah .php
[iii] Shafi'i law Reliance of the Traveler – n.5.0, Hanafi Law Hedaya page 112, Codified Islami Law Vol 1
Law#355, Sharia the Islamic Law – Dr. Abdur Rahman Doi page 192 etc.
[iv] Sahi Bukhari Vol 7 – 206 – Dr. Muhsin Khan, Medina University
[v] . Ibid Vol 7-188
[vi] Ibid Vol 7-198
[vii] Yusuf Ali– 4:19 - http://www.usc. edu/dept/ MSA/quran/ 004.qmt.html
[viii] Gender Equity in Islam – Dr. Jamal Badawi –
http://www.scribd. com/doc/4931814/ Gender-equity- in-islam -By-Jamal-Badawi, The daily Inqilab 04 January 2006 etc.
[ix] http://www.crescent life.com/ thisthat/ feminist% 20muslims/ 4_34.htm
[x] http://www.aaiil. org/text/ hq/trans/ ch4.shtml
[xi] Codified Islamic Law Vol 1, Law # 352
[xii] Women, the Family and Divorce Laws in Islamic History – Amira El Azhary Sonbol