Divorce - II
In our age divorce has become a world problem as all grumble and complain about it. Those whose laws prohibit divorce totally complain of the non-existence of a way to escape from unsuccessful and unsuitable marriages. On the other hand, those who have opened the door of divorce, equally for both man and woman, complain about the growing rate of divorce and the instability of domestic life, and its harmful effects. Those who have given the right of divorce to men only express their dissatisfaction on two accounts:
Firstly, some mean people, after years of married life, unexpectedly divorce their old wives who had spent the best part of their youth with them, simply because they suddenly feel eager to have a new wife.
Secondly, some unchivalrous people refuse to divorce a wife, with whom there is absolutely no possibility of a mutual understanding and a continued joint life.
It often happens that, for some reasons, the differences between a husband and a wife reach such a stage that no possibility of reconciliation is left, and they practically separate from each other. In such circumstances, the only sensible way is to sever, legally, the relations which have already been practically severed, and to allow both of them to choose new partners-in-life. But some men, to harass their wives and to deprive them of enjoying a conjugal life, decline to divorce them. They leave the woman, in the words of the Qur'an, "in a state of hanging".
Such people are far away from the teachings of Islam, though they use the authority of the Islamic law for their improper behaviour. Their conduct gives an impression to those who are not acquainted with the depth and the spirit of the teachings of Islam, that this is the way Islam wants divorce to be.
The critics ask sarcastically whether Islam has really allowed men to harass their wives as much as they like, sometimes by divorcing them and sometimes withholding divorce, and at the same time to have the mental satisfaction that they have only used their lawful and legal right.
The critics say that such an action constitutes a glaring example of injustice and cruelty. They ask "If it is true, as the Muslims claim, that the Islamic laws have been organised on the basis of justice and righteousness, what measures have Islam taken to prevent this kind of injustice?"
About the cruelty and injustice of such acts there can be no doubt. Islam, as we shall show, has taken cognisance of this situation and has thought of measures to counteract it. The important question is: What is the proper way of preventing this injustice and cruelty? Are the acts of injustice due to any inherent defect in the law of divorce, or should their real cause be looked for somewhere else? Can they be stopped by modifying the law or are some other measures required?
Islam has its own view as to the solution of the social problems. Some people think that they can be solved either by framing a new law or by changing the existing one. But Islam realises that a law has its own limits. It can be effective only within the range of the dry contractual relations. As for the sentimental relations, it alone cannot do much, and we should have recourse to other measures also.
As we shall show latter, Islam has fully utilised the force of law as far as it can be effective. It has not failed in this respect.
Ignoble Divorces
First, we take up the present day problem of ignoble divorces.
As a matter of principle, Islam is strongly opposed to divorce. It wants that it should not take place as far as practicable. It allows it only as a last resort in the cases where separation is unavoidable. Those who frequently take a new wife and divorce the old one are denounced by Islam as the enemies of Allah.
The well-known book of traditions, al-Kafi, narrates the following story:
The Holy Prophet asked a man: "What have you done with your wife?"
"I have divorced her", he said.
'Did you find her doing anything wrong?"
"No, I didn't"
The man married again. The Holy Prophet asked him:
"Have you taken another wife in marriage?
"Yes".
Some time later, the Holy Prophet asked him again:
"What have you done with the new wife?"
"I have divorced her".
"Had she done anything wrong?"
"No. She hadn't".
The man married a third time. The Prophet asked him again if he had taken in marriage a new wife. He replied in the affirmative.
After some time the Prophet asked him again:
"What have you done with this wife?"
"I have divorced her also".
"Did you find anything wrong with her?"
No, I didn't"
The Holy Prophet said that Allah dislikes and hates the man who regularly changes his wives, and the woman who regularly changes her husbands. Such people are the enemies of Allah.
It was reported to the Holy Prophet that Abu Ayyub Ansari had decided to divorce his wife. The Prophet knew the woman personally. He also knew that Abu Ayyub's decision was not justified. He said: "Divorcing Umme Ayyub (Abu Ayyub's wife) is a deadly sin".
The Holy Prophet said that Gabriel had exhorted and counselled him so much in respect of women that he felt that it was not permissible to divorce a woman, except when she was guilty of adultery.
Imam Sadiq (P) has reported that the Holy Prophet said:
"There is nothing more pleasing to Allah than the house where a marriage takes place, and nothing is more displeasing to Him than the house where it is severed by divorce"
Imam Sadiq (P) has also said that the word 'divorce' has been mentioned in the Qur'an time and again and its details have been given because Allah hates separation of couples.
AI-Tabarsi in the Makarim al-Aklaq has quoted the Prophet as saying: "Do marry but do not divorce, for divorce shakes the throne of Allah".
Imam Sadiq (P) has said: "No permissible act is more displeasing to Allah than divorce. Allah dislikes those who resort to divorce again and again".
Similar traditions are found in the Sunni books also. Abu Daud in his book, 'Sunan' has reported the Prophet as having said: "Allah has not permitted anything more hateful than divorce'. In other words, though Allah has permitted divorce, He dislikes it the most.
The great religious leaders (Imams) have abstained from divorcing, as far as possible. In their lives the cases of divorce were extremely rare. They resorted to such an action only when they had very solid grounds for it. For instance, Imam Baqir (P) married a woman. She became his favourite, but on one occasion he noticed that the woman was inimical to Imam Ali Ibn Abi Talib and cherished malice against him in her heart. He had to divorce her.
In reply to the question as to why he had divorced her when he liked her so much, the Imam said that he did not want to have a piece of the fire of Hell by his side.
A Baseless Rumour
It is worthwhile to refer here to a baseless rumour fabricated by the unscrupulous Abbasid caliphs. It gained so much currency that it was recorded by a number of prominent writers in their books. According to this rumour, Imam Hasan Mujtaba (P), son of Imam Ali Ibn Abi Talib (P) was one of those who took many wives and divorced them. The rumour was spread nearly a century after the demise of the Imam. It was given currency so vehemently that even many of his devotees believed it, without paying attention to the fact that such an obnoxious act was not worthy of the great Imam and could not be expected of a person who used to go on pilgrimage on foot, and who, more than twenty times, distributed 50% of his entire wealth and property among the poor.
As we know, unlike the descendants of Imam Husayn (P) who were headed at that time by Imam Sadiq (P), the descendants of Imam Hasan (P) co-operated with the Abbasids, during their insurrection against the Umayyads. In the beginning the Abbasids acknowledged their fidelity and devotion to the descendants of Imam Hasan (P), but on becoming successful in seizing power, they betrayed them and put most of them out of their way, either by killing them or by imprisoning them. In pursuance of their policy, the Abbasids started a propaganda campaign against the descendants of Imam Hasan (P), in the course of which they invented many calumnies, one of them being the charge that Imam Hasan's grandfather and the Holy Prophet's uncle, Abu Talib (P), did not embrace Islam and died as an infidel. They wanted to bring out that they themselves, being the descendants of the Prophet's other uncle, who had embraced Islam, were more deserving of being the caliphs. To achieve their purpose they spent huge amounts of money and fabricated a number of stories. A section of the Sunnis, influenced by this propaganda, still believes that Abu Talib was a disbeliever. Though the latest research by some Sunni scholars have clarified the position to a great extent, yet some doubts still linger among a section of them.
Another calumny, fabricated by the Abbasids, was that Imam Hasan (P) succeeded to the caliphate after his father, but, being a licentious person, he could not acquit himself well and had to surrender the caliphate to his keenest rival, Mu'awiyah, from whom he took money, and made himself busy with marrying and divorcing.
Luckily, the research scholars of our age have exposed the source of this fabrication. The first known person who uttered this lie was a Qazi appointed by Caliph Mansur, and detailed by him to concoct and spread rumours against the Imam. A historian, commenting on this lie, observes that if it is true that Imam Hasan (P) took so many women in marriage, then where are his children? Why is their number so small? After all, the Imam was not sterile and contraception and abortion also was not customary at that time.
We wonder at the simplicity of some of the compilers of the Shi'ah traditions. How could they write that Imam Hasan (P) was in the habit of divorcing women, when they themselves report that the Holy Prophet and the Imams have said that Allah dislikes and denounces a man who habitually divorces their wives. It never occurred to these gentlemen that they had to choose one out of the following three alternatives: (i) Divorce is not a bad thing; (ii) Imam Hasan (P) was not a habitual divorcer or (ii) Imam Hasan (P) did not adhere to the teachings of Islam. But they, strangely, not only believe in the authenticity of the traditions, saying that divorce is detestable to Allah, but also, at the same time, despite being devotees of the Imam, quote the reports that he was a habitual divorcer. They skip over such reports without making any comments on them.
Some of the traditionalists have gone to such an extent that they have reported that Imam Ali (P) was not happy with the way his son behaved. In a public speech he asked the people not to give their daughters in marriage to him, for he was in the habit of divorcing them. But, it is said, the people replied that it was a matter of pride for them that their daughters could become the marriage-partners of a descendant of the Prophet even for a short time.
It appears that some people are of the opinion that divorce is not bad, if the woman concerned and her family consent to it. They think that divorce is loathsome only if the other party does not agree to it, but there can be no objection to it if the woman is content to pass only a few days with the man in whom she takes pride.
Anyhow, that is not the real position. The consent of the woman or her parents does not mitigate the detestableness of divorce. It is detestable because Islam wants marriage to be lasting and the family life to be stable. The consent of the couple concerned does not make the position any different. Islam does not consider divorce to be loathsome only for the sake of any particular class of women. It is a matter of principle.
We have dealt with the question of Imam Hasan (P), not only with a view to repeating a false historical charge against a historical personality, but so to warn those unconscientious people who may indulge in such acts and then to justify their behaviour, may try to cite Imam Hasan (P) as an authority.
There is no denying the fact that divorce as such is loathsome and detestable in Islam.
Why Islam has not Prohibited Divorce
Here a few other questions arise. If divorce is so loathsome and so disliked by Allah, why has it not been totally prohibited by Islam? Islam could at least lay down certain conditions for its validity. In that case anybody who wanted to divorce his wife, would have been judicially bound to justify his intended action before a court of law.
The second question is: What does the sentence, "Out of all permissible things, divorce is most detestable to Allah" mean? If it is permissible, it cannot be detestable and, if it is detestable, it cannot be permissible. These are two contradictory terms.
Lastly, has the judiciary, which represents the society, the right to intervene in the matter of divorce to the extent of withholding its implementation till either the husband takes back his decision or it becomes clear that no reconciliation is possible, and hence there is no alternative but to sever the conjugal bond?
Divorce - III
We have said that, from the Islamic point of view, divorce is absolutely detestable. Islam wants the marriage-union to be strong and lasting. At that stage we raised the question that if divorce is so detestable, why has Islam not banned it? Has not Islam prohibited every detestable act like taking wine, gambling, cruelty etc? If the reply is in the affirmative then why has it not totally prohibited divorce by law? It is basically illogical to say that divorce is permissible, but at the same time detestable. If it is permissible, how can it be detestable? If it is detestable, why should it be permissible? Islam, on the one hand, frowns at the man who divorces his wife and, on the other puts no legal obstacle in his way; why?
It is a very pertinent question, and is the key to all the secrets of the problem of divorce. In fact, marriage is a natural and not a contractual relationship. Nature has laid down special rules for it. Other social contracts like sale, hire, mortgage, peace, attorneyship etc. are mere social agreements. Nature and instinct have nothing to do with them. There exists no natural law in respect of them. In contrast, a marriage contract has a special mechanism. It is to be organised on the natural desire of the two parties.
Hence, it is not surprising that a marriage contract has special rules which are different from those of all other contracts.
Natural Laws in Respect of Marriage and Divorce
In a civil society the only natural law is the law of liberty and equality, on the basis of which all social rules should be framed. But in respect of a conjugal contract, besides the general principles of liberty and equality, nature has prescribed certain other laws also, which must be adhered to in the case of marriage, dower, maintenance and the last stage of the process, that is divorce. It is of no use to bypass nature. As Alexis Carrel has pointed out, the biological and other laws of life are as hard, ruthless and irresistible as the astronomical laws.
Marriage means attachment and union, and divorce means separation.
Nature has designed the law of marriage in such a way that man acts with a view to appropriate woman, and woman withdraws with a view to fascinate and mislead man. Man wants to take possession of the body of woman and woman wants to captivate the heart of man. The foundation of marriage is laid on love, union and fellow-feeling, and not on mere co-operation and companionship. In the family structure, the fair sex occupies the central position, and her opposite sex the peripheral one. From all this it automatically follows that nature must have had special rules for the dissolution of family life also.
We have quoted earlier an intellectual as saying that mateseeking means an attack on the part of man for the purpose of appropriation and a withdrawal on the part of woman for the purpose of enchantment and deception. Man being instinctively a hunting animal, his action is offensive and for him woman is a trophy which he must win. Mate-seeking is a battle and a struggle and marriage is appropriation and domination.
A contract which is based on love and the feeling of oneness is not enforceable by compulsion. The law can compel two people to respect their contract on the basis of equality, and to co-operate with each other, but it cannot force them to love each other, to be sincere to each other, to make sacrifices for the sake of each other and to share each other's happiness.
If we want to maintain such a relationship between two people we have to adopt some measures other than legal.
According to the natural mechanism of marriage, on which Islamic laws are based, a wife occupies the position of a person deserving love and respect in the family order. If, for some reason, she loses that position and is deprived of the love and attention of her husband, the base of the family structure falls off and the natural order is deranged. Islam looks at such a situation with regret, but it cannot assume marriage to be alive and constant even after the disintegration of its natural basis.
Islam has taken special steps to ensure that the family life retains its natural form, which means that the wife should be loved and sought after, and the husband should feel attached to her and be ready to serve her.
Islam has urged woman to beautify herself to please her husband, to give a display of her accomplishments for his sake, to satiate his natural desires and not to annoy him by disobedience. It has also exhorted man to love his wife, to show kindness and attachment to her, and not to conceal from her his love for her. These steps have been taken to make the sexual enjoyment limited to the domestic atmosphere, and to keep the wider society a field of work and activities other than sexual. Islam wants that extra-marital contacts between man and woman should be pure and unpolluted. All these steps have been taken with a view to keeping the family organisation free from the danger of dissolution and disintegration.
Natural Position of Man in the Domestic Life
From the Islamic point of view, it is extremely insulting to a woman that the law should force her to live with a husband who does not like her. The law can force a woman to live with a particular man, but it cannot secure for her the position of a beloved and central figure in the household, which she should have. The law can force a man to support his wife, but it cannot force him to be a devoted husband.
Hence, when man's love and attachment cools down the marriage becomes ineffective from the natural point of view.
Here another question arises. If the wife's love cools down, will the domestic life be affected? Will it continue as it is or will it come to an end? If it will remain intact, then how is it that the lack of love, on the part of the husband, terminates the domestic life and on the part of the wife it does not?
Is there any difference between man and woman? If the lack of love on the part of the wife also terminates the domestic life, then naturally women should also have the right of divorce like men.
In fact, the success of the domestic life depends on the mutual attachment of both the husband and the wife. But as we mentioned earlier, there is a difference between the mentality of man and that of woman. We have already quoted the views of the scientists on this point. Nature has so arranged that woman's true and lasting love comes up only as a reaction of man's attachment to her. Hence, woman's attachment to man is the result of man's attachment to her. Nature has placed the key of their mutual love within the control of man. If man loves woman and is faithful to her, woman also loves him and remains faithful to him. Woman's faithlessness is definitely a reaction of man's faithlessness.
Nature has put the dissolution of marriage in the hands of man. It is man's apathy and faithlessness that cools down woman's love. On the other hand, woman's indifference and apathy does not affect man. Hence man's indifference to woman unlike the latter's indifference to him leads to woman's in-difference. Man's frigidity is the end of conjugal life, but woman's is not so. If man is sensible and faithful, he can always regain his wife's love by showing affection and kindness to her. It is not insulting to him to compel his annoyed sweetheart by force of law, to continue to live with him, and to pacify her gradually. But it is unbearable for a wife to resort to the force of law to retain her protector and the object of her love.
Of course, this is the case when woman's indifference is not due to the immorality or cruelty of man. If man shows cruelty, the case is different. He cannot be allowed to misuse his position and to harass or ill-treat his wife. We shall discuss this point separately.
Anyway man is in need of the body of woman and woman is in need of the heart of man. That is the difference between the two. Marriage is unbearable for woman if she does not enjoy her husband's genuine protection and sincere love.
Views of a Lady Psychologist
Recently an article has been published by a French lady psychologist, Beatrice Maryo, who holds a doctorate in psycho-logy and works as a psychiatrist in a hospital of Paris. She herself is a mother of three children.
In this article she has explained very well how a pregnant or a nursing woman needs the kindness and affection of her husband.
She says: "From the time a woman feels that she is going to be a mother soon, she begins to search her body. She repeatedly looks at it and smells it, especially if she is expecting her first child. She feels so inquisitive as if she were a stranger to herself and wants to discover herself for the first time. When she feels the first movements of her tiny little child in her womb, she begins to listen attentively to every sound of her body. The presence of another being in her body makes her so happy that she feels inclined to seclusion and retirement. She wants to be alone with her tiny little child, who has not yet come into this world.
"Men, during the period of the pregnancy of their wives, have important duties to perform, but very regretfully they often shirk their responsibility. The future mother is in need of the feeling that her husband understands her, likes her, and protects her. Otherwise, when she finds that her belly has swollen up; her attractiveness has gone, the morning sickness has commenced, and she is afraid of childbirth pains, she would blame her husband, who had impregnated her, for all her troubles and discomforts. It is the duty of the husband to keep himself, more than ever, at the side of his wife during the months of her pregnancy. The whole family requires a kind and considerate father to whom the wife and the children may talk of their problems, their griefs and their joys. Even if their talk be meaningless or boring, it is still important."
"A pregnant woman very much wants others to talk to her of her child. A woman takes all the pride in becoming a mother. But when she finds that her husband is indifferent to the child, her sense of pride turns into a sense of contempt. She becomes sick of motherhood and pregnancy, and it becomes a sort of mortification to her. It is known that such women suffer a great deal on account of child-birth pangs The relation between mother and child is not a bilateral one. It is a trilateral relation: mother, child, and father. Even if the father is not present (as in the case of divorce), he has an important role in the internal life of the mother, that is in her thoughts and imagination, as well as in her sense of motherhood.
This is what a lady intellectual, who is both a psychologist and a mother, has said.
A Structure Built on the Basis of Sentiments
A woman depends so much on the sincerity, kindness and protection of her husband that without his earnest co-operation even a child has little sense for her. She can endure the hardships of life only with his help. In such circumstances, how can it be possible to compel her, by the force of law, to remain attached to a man who is not willing to accept her?
Is it not ironical that, on the one hand, we create an atmosphere in which men pay little attention to their wives and sow their wild oats elsewhere and, on the other, we try to thrust their wives on them by the force of law? As a matter of policy, Islam wants that man himself should seek a woman and should like her. It does not want to thrust a woman on him.
As a general rule, where there is a question of love, devotion and sincerity, there can be no question of legal compulsion. If a husband dislikes his wife, it may be a matter of regret, but no force can be used to make him like her.
Let us give an example. As we know, in the congregational prayers there is a condition that the leader of the prayers can be only that person who is pious and in whose piety the followers have faith. In this case, the relationship between the leader and the followers is based on the piety of the former, and the faith and devotion of the latter. If the body of the followers loses faith in a particular leader, whether rightly or wrongly, this relationship is severed. The law cannot guarantee its continuity. As it is a matter of feelings and sentiments, nobody can be compelled legally to have faith in a particular person. Even if a leader of the prayers possesses the highest degree of piety and virtue, he cannot compel others to offer prayers behind him. It will be highly ridiculous to file a suit in a court of law in this respect. It is even derogatory to the position of the leader of the congregational prayers to try to force people to offer prayers behind him.
The same is the case with the relationship between the voters and the candidate for election. The people will vote for a candidate in whom they have confidence. If they do not elect a particular candidate, howsoever fit and suitable he may be, he cannot sue them.
The only thing which should be done in such cases is to train the people on the correct lines and to raise their intellectual level, so that when they perform their religious duty, they may find out the really righteous people to follow and, when they perform their social duty, they may select the really deserving people to vote for. If, by chance, the people change their opinion subsequently without any rhyme or reason, that can only be a matter of regret, but there can he no question of compulsion or legal action in the matter.
The domestic duty is exactly like the above-mentioned religious and social duties. Islam regards the family as a natural society, for the smooth running of which it has prescribed a particular procedure to be followed strictly.
It is the greatest achievement of Islam that it has prescribed this procedure, for the West has not so far been able to solve its family problems. Not only that, but problems are multiplying and new problems are being added daily to the old ones. Fortunately, as the result of scientific investigations, the position is gradually becoming clear. We are fully convinced that the Western world will gradually accept the Islamic principles and precepts regarding the family laws. Anyhow, we do not believe that the real Islamic teachings are identical with what is being practised today as such.
What Consolidates the Family Structure is More than Equality
The present day Western world is enamoured of 'equality', not knowing that the question of relationship between man and woman was solved by Islam 14 centuries ago. As far as the family system is concerned, there exists something higher than equality. For civil society nature has laid down only the law of equality, but for the domestic society it has laid down other laws also. Family relations cannot be organised on the basis of equality alone. All other laws of nature, which govern these relations, should be recognised and adhered to.
