ISLAM

Divorce
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Divorce

Islam prefers to see marriage as a life-time commitment but if this is impossible then divorce may be necessary. In most cases the husband divorces the wife and loses his dowry.

The least approved form of divorce is Talaq al-bida where the husband says to the wife: "Talaq. Talaq. Talaq". Because this is irrevocable, Caliph Umar used to whip the husband who divorced his wife in one pronouncement. Also irrevocable is Talaq al-Bain where the husband

pronounces "Talaq" on three separate occasions. This is a less hasty form of divorce and so is more preferred.

With Talaq ar-Raji the husband pronounces "Talaq" only once and abstains from sex with her for three months. If in this time he has intercourse with her, even if she is unwilling, then the talaq is revoked. The exact iddah (waiting period) is a question of debate among jurists. In all cases, talaq must not be pronounced while the woman is having her period or still bleeding after childbirth as her inaccessability may be off-putting to the husband. A pregnant woman may be divorced according to most jurists.

After the triple divorce it is haram (unlawful) and punishable for the former partners to have intercourse. Moreover if they wish to remarry it is necessary for the woman to first marry and divorce someone else. This second marriage must be consummated under Islamic law so that the former husband can see if he feels any jealousy, that is whether there is any real feeling left. This practice, called halala, was considered as adultery by Caliph Umar.

The wife can divorce her husband by the remedy of Faskh if approved by the Qadi, Court. The grounds vary among the different Schools of Law but include apostasy, cruelty, lack of maintenance, going missing, insanity, dangerous contagion, even incompatibility.

One may ask why it is so easy for the man to obtain a divorce but so difficult for a woman. "If women were given the power of unilateral divorce, it is probable millions of them would divorce their husbands. " 10 because there are times of the month when a woman is not in full control of her faculties; she may suffer bouts of ill-temper, depression or jealousy-be upset by trivia which normally would not bother her.

The Qur'an (4:28) reveals a method whereby a wife can ask her husband for a divorce, Khul, if he is willing and if she is able to repay part or all of the dowry which she received. The release may bind her to maintaining a child until it is weaned. Khul must not be undertaken lightly:

"If any woman asks for a divorce from her husband without specific reason, the fragrance of Paradise will be unlawful to her." (Muhammad)

A man who accuses his wife of adultery but has no witnesses must declare on oath four times that the accusation is true. The fifth time he must declare on oath that the curse of Allah may fall on him, if the accusation be false. This solemn statement of the husband renders the wife liable to punishment. The only way to save herself is to deny the accusation four times on oath and swear that the wrath of Allah be upon her if she is telling an untruth. The way out of this impasse is for the court to divorce them.

The adultery laws are often not in accord with the Sunna and are a bone of contention with the fundamentalists. For example in Egypt the punishment for an adulteress is only two years' prison sentence. For a man the punishment is six months, if and only if, it was committed in the family home. If a man is caught in the act with a prostitute, he is not punished but used as a witness against her.

If the woman cannot get a divorce through the court or by Khul, she can apostacise and so separate. This is possible in India where she cannot be legally murdered for apostasy, "till such time when an Islamic Government is established... in India. "11 (Hindus and free-thinkers be warned!)

The divorced woman lives in the matrimonial home until the iddah (waiting period) is over. She may not leave it nor may the husband demand that she go. He has to maintain her unless she left his home, had travelled (except the Haj) without his permission, had refused him his conjugal rights or had been imprisoned for a crime.

Custody of Children

Custody depends upon which Islamic School of Jurisprudence is involved. The traditional view is that boys are taken by the father after they have been weaned, that is at age two, while little girls leave their mothers at seven years of age. As this led, in many cases, to socially harmful consequences the Malechite School of Sunni Islam allows girls to stay with their mother and boys up until puberty. She does not get custody if she is not a fit person nor does she retain custody if she re-marries. Her mother, provided that they are not living together, or her former mother-in-law look after the children. The mother must not have a full-time job; she should have plenty of time to look after them.

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