Grounds for Divorce
Allah provides general guidelines for the process of divorce with emphasis on both parties upholding the values of justice and kindness in formalizing the end to their marriage. Allah encourages the husband and wife to appoint arbitrators as the first step to aid in reconciliation in the process of divorce. If the reconciliation step fails, both the man and woman are guaranteed the right to divorce as established in the Quran, but the difference lies in the procedure for each one. When a divorce is initiated by the man, it is known as Talaaq. When initiated by women its known Khula.
In order to obtain a divorce you will need to prove that your marriage has broken down irretrievably. There is only one ground for divorce and that is that the marriage has broken down irretrievably. One of five facts must be proved to satisfy that the marriage has broken down irretrievably. Three of these facts depend upon you and your spouse having been separated for two years or more, namely:
1. That you and your spouse have lived apart for a continuous period of at least two years immediately before the start of the divorce and your spouse consents to a divorce.
2. That you and your spouse have lived apart for a continuous period of at least five years immediately before the start of the divorce (your spouse’s consent will not be necessary).
3. That your spouse deserted you for a continuous period of at least two years immediately before the start of the divorce. To prove the fact of separation in the above, it is not always necessary for you to have been living in separate accommodation for two years. Thus may be satisfied if you can prove that for some or all of this period you have been living separately (eg not as husband and wife) within the same household. The remaining two facts which are most commonly relied upon to satisfy the courts that the marriage has broken down irretrievably are:
4. Unreasonable Behaviour – This is where your spouse has behaved in such a way that you cannot reasonably be expected to live with him/her. For behaviour to be unreasonable it does not have to be as extreme as violence, drug or alcohol abuse cheat. It can consist of milder allegations such as your spouse being unsupportive, critical or spending insufficient time at home.
5. Adultery – This is an act of sexual intercourse with a person of the opposite sex. For adultery to be relied upon it must have taken place no more than six months before separation or at any time following separation. It is not necessary to name the person with whom your spouse has committed adultery.
HOW SHOULD THE DIVORCE (TALAQ) BE GIVEN
Islam disapproves of divorce immensely, and in this connection it has cautioned its followers to be very careful, and has pointed out the steps that the spouses have to take for reconciliation in the event of disagreement between them. It has also laid down the correct procedure of giving divorce if it becomes inevitable to do so. In this connection the basic point to note is that Islam has permitted only the divorce to be given on one occasion, but a very large number of Muslims is unaware of these teachings of lslam and because of the moral and social corruption a number of people put divorce to wrong and improper use by giving three divorces at one and the same time, and feel sorry, afterwards. In view of this situation, an urgent necessity is felt to educate the people about the Islamic teachings concerning divorce and to show to them its correct procedure. If even this last measure proves to be ineffective, and there appears to be no sign of reconciliation, then the husband can use his right of giving divorce; and it is definitely better to free the wife from the bonds of nikah than keeping her suspended indefinitely. Islam has kept the avenue of divorce open for man in order that man may lead a righteous life and there should be no difficulty for him to keep within the limits of morality. Similarly Islam has given the right of ‘Khula’ to woman and also to approach a court of law for dissolving her nikah in order that she may also be able to keep within the religious and moral bounds.
In the case of deciding to give divorce, a husband should take care to adopt the Shariah method, and it is better if he reduces this decision to writing. The correct procedure of pronouncing divorce is as under:
1. Divorce should be given when the wife is in a ‘state of purity’, i.e. when she is clean after her menstrual period and the husband had not had sexual intercourse with her. Giving divorce during the menstrual period of the wife has been forbidden in the hadith, on the good grounds that during the menstrual period a husband is not attracted towards his wife, and in her state of cleanliness thereafter he may turn towards her and may give up the idea of divorcing her.
2. Only one divorce be given, that is the husband may say to the wife: “I divorce you ‘. He should not add any numbers to his divorce. If the divorce is being written on paper then it may be clearly stated that it is one divorce (revocable).
3. Divorce be given in the presence of two just witnesses. It is stated in Surah Talaq: And call to witness two just men among you. (Surah At- Talaq-2)
4. After the divorce, the woman will have to pass her term of waiting (Iddat). It is that period in which a divorced woman cannot be re-marry and it is incumbent upon the husband that he should not turn her out before the end of this period of iddat, and he should provide for her maintenance during this time. Similarly it is incumbent upon the divorced woman that she should pass her period of iddat in her husband’s house. The term of iddat is for three menstrual periods. The Qur’an states: “Divorced women shall wait, keeping themselves apart, for three menstrual periods.” (Surah Baqarah-228). When the third menstrual period is over, the period of iddat ends. And if the woman is not menstruating, then the period of iddat is three lunar months, that is from the day the divorce is given till the end of three lunar months. “And for such of your women as despair of menstruation, if you doubt, the ii period (of waiting) shall be three months, and also for those who have it not” (Surah At- Talaq-4). And if the woman is pregnant, then her period of waiting is the termination of her pregnancy (delivery): “And for those with child, their period shall be till they bring forth their burden.” (Surah At- Ta/a q-4)
5. During the period of waiting (iddat) a husband can return to her, i.e. take her back as wife. For this revocation of divorce, two just men should be called as witnesses.
6. If he has not returned to her or revoked the divorce, then after the period of waiting (iddat) is over, the woman would separate from the man. But this would be ‘One revocable divorce’. If after this both the ex-husband and the ex-wife desire, they can re-marry. In other words after the period of iddat, man has no right of revocation, however if he wants to bring her back as a wife, there is an opportunity for him to marry her again with her willingness.
According to the Qur’an and Sunnah this is the correct and better procedure of giving divorce. In this procedure man gets full opportunity to think and to weigh the pros and cons of his steps, and there remains little or no chance for him to regret. The jurists have termed such a divorce that has been given once and in the sate of cleanliness and without an intercourse after the last menstrual period, and no second and third divorce having been given during the period of waiting—but the period of iddat was allowed to pass after one divorce—as ‘the divorce according to Sun na h’.
In the ‘Mughni’ it is stated: “Divorce according to Sunnah is that the woman is divorced in a state of cleanliness (Tohr) without an intercourse, the husband gives one divorces and leaves her as such till the iddat is over.” (Mugni-ibneQuddamah Vol 7P. 98)
And in the Hidayah it is stated: “The best procedure for divorce is that the husband should give one divorce to his wife, and that too when she is in a state of cleanliness and he had not had an intercourse with her. Then he should lea ye her in the same state till the term of iddat is over. This procedure is better, because the Companions of the Prophet (R) desired that more than one divorce should not be given till the period of iddat is over.” (Hidayah- Vol. 1 Page 179)
WHEN SHOULD THE SECOND DIVORCE BE GIVEN
The second divorce is to be given on some other occasion, that is if the husband had taken back the wife after giving one divorce, but in spite of efforts smooth relations did not prevail, then he can give the second divorce in the manner described~ in the above lines, after which the woman will have again to spend her period of waiting (iddat). During this period of waiting, the husband can, if he wishes, return to his wife, i.e. take her back as wife. And if the period of iddat is over, then he can re-marry her with her willingness.
The divorce in which the husband has the right to return to his wife or take her back as wife or to revoke his divorces are the first and second divorces, that is the divorces given on two occasions. In the holy Qur’an it is ordained:
“Divorce is to be given two times, and t/7en (a woman) must be retained in good manner or re/eased grace fully.” (Surah Baqarah-229)
WHEN CAN THE THIRD DIVORCE BE GIVEN
If after giving the second divorce, the husband has revoked his decision and taken her back, but in spite of efforts smooth relations did not prevail, and the husband wants to divorce her, then this time he should arrive at a decision with more careful consideration, because this is the divorce of the third occasion, in which the husband has neither the right of revocation, nor can he re-marry after the passing of the period of waiting unless the woman has re-married and has been divorced by the second husband.
The holy Qur’an directs: “So if a husband divorces his wife (after two times) he cannot after that remarry her until after she has married another husband (and he has divorced her).” (Surah Baqarah-230)
The commands concerning this third divorce are very Strict, and it is called Talaq-i-mughallazah Bainah’. The third divorce is not only ‘baain’ (separator) (irrevocable) but is so absolute that the man and the woman cannot remarry even with mutual agreement unless the woman is married to another man and this other man divorces her by his own free will, and not in accordance with a pre-planned understanding, or unless he dies. If this second husband divorces the woman perchance or he dies, and the woman wants to go back to her former husband, then she can remarry him.
THE WRONG WAY OF GIVING DIVORCE
Generally people, being ignorant of the commands of the Shariah and being carried away by their emotion or rage, pronounce three divorces at one time, and then regret it. This method of giving divorce is against the Sunnah. Therefore, such divorces are called the ‘divorce of bid’at’ (innovative). What is the effect of pronouncing three divorces at one and the same time? Will it be counted as three divorces or only one? There are differences of opinion among the ulema (scholars) on this point, therefore, safety lies in not pronouncing three divorces at one and the same time.Generally people are under the wrong impression that unless a husband pronounces three divorces, the divorce does not become effective, and some Qazis make it a point to write down three divorces in the divorce—document. But such a procedure is absolutely wrong and it is necessary that the matter should be reviewed and the needed reformation effected.