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The methodology of divorce

February 2, 2016
By Lubna Khalid

Since marriage is a legal, binding contract, it has to be dissolved in a proper way. You! takes a look...

Since marriage is a legal, binding contract, it has to be dissolved in a proper way. You! takes a look...

Soha got married when she was only 19 years old. Hers was a fairytale wedding. The groom, Harris, was rich, educated and handsome, and Soha was beautiful. Everyone raved about what a great couple they made. Six months on, Soha and her husband had a fight on a minor matter. Her mother-in-law joined the fray, inciting Harris not to brook insults from his wife. In a fit of rage, Harris, who claimed to love Soha, divorced her thrice on the spot. And the couple did not get to live happily ever after.

Ahmer and Maha, on the other hand, escaped similar fate. Although the couple loved each other and their two children, financial problems were taking its toll. Ahmer had become cranky because even after working till late in the evening, he was not earning enough to support his family adequately. There were always unpaid bills or demand notes from children’s schools to throw the budget into chaos. Both were on edge and when an argument escalated, Maha asked Ahmer for divorce. Ahmer was stunned but thought Maha had said it in anger and would be fine in the morning. It was not to be. Next morning, Maha packed her bag and left, leaving her two children with Ahmer.

Unfortunately, Maha’s parents did not try to counsel her at all. Enraged at Ahmer for denying their precious daughter the luxuries of life, Maha’s father sent a notice through his lawyer to Ahmer, demanding divorce. Ahmer’s ego was stung, but being sensible he tried to talk to Maha and her family. Failing in his attempt for reconciliation he consulted a lawyer and a religious scholar, and decided to accede to his wife’s demand. He divorced her just once, and sent it in writing, as instructed by his lawyer. The divorce document gave Maha the right to meet her children and have them stay with her as and when she wanted. The divorce became final after a month, and so ended Ahmer and Maha’s nine-year-old marriage.

Initially, Maha felt as if she had been released from prison. Her father, a rich man, gave her a generous allowance. Her children were sent by Ahmer on weekends to stay with her, and she indulged them with her new-found money. As months went by, Maha started feeling animosity from her sisters-in-law. They hated it when their husbands invited Maha to join them when they went out. They hated the little tiffs between Maha’s children and theirs. Maha had to make a lot of compromises. She used to have breakfast early with her children before they went to school. In her parents’ home, breakfast was a late affair since her father and brothers were businessmen, and hardly went to work before 12 noon. It was not a big thing, but it really irked her the most. For, it was a constant reminder of her new status at her parents’ home. She had to live by their rules, follow their routine. In short, they made Maha realize that it was their home and she was an interloper.

Maha began regretting her impetuous decision. Her children also sensed their mother’s unhappiness and told their father that Mama cried a lot. Maha started regretting her decision to leave her home where she reigned supreme and could do what she wanted.

Ahmer was also having a tough time managing the house and looking after his children. When he heard Maha was unhappy, he decided to talk to her. He called her and asked to re-consider marrying him. Since he had only divorced her once, they could marry each other at will. The horrific halala condition did not apply to them. Maha thought hard, but not long. She realized that she still loved Ahmer, and, after being mistress of her home, she did not like playing second fiddle to anyone. So they had a quiet nikah ceremony, and after 11 months, she went back to Ahmer. This time, hopefully, to live happily ever after.

Is it possible for people who hate their bosses to just up and leave a job without any repercussions? In some cases where people work without contract, the answer is yes. The other day, my friend’s maid was offended when chastised for remaining absent without official leave (AWOL) for two days. She rudely told my friend what she could do with her money, and left. Just like that! On the other hand, people who sign work contracts cannot get away from their hateful bosses just like that. They either forego a month’s salary, or hand in a notice to quit. In the same way, the odious bosses cannot dismiss their staff without handing a month’s salary if they dismiss a worker without proper notice.

So, why is it that marriage contract is taken so lightly by most people, who, in a fit of rage, terminate the contract irrevocably without thinking of the ensuing consequences?

The answer probably is lack of knowledge. Since marriage is a legal, binding contract, it has to be dissolved in a proper way, which people don’t bother to do, as upholding laws is hardly our national trait.

Marriage, union of two souls, sanctified by religion, solemnized by society is one of the oldest institutions, but it seems that the foundation of this institution is now crumbling. Divorce, dissolution of the institution of marriage, on the other hand, is becoming commonplace. A word that was taboo previously has now become a part of daily discourse. Divorce is at times a necessary evil, but can still be devastating - not only to the man and woman, but to their children and other family members. No wonder the act of divorce, although halal (permissible), is not approved by most religions. “The most hateful permissible thing (al-Halal) in the sight of Allah is divorce.” (Abu Dawud, Hadith 1863, Ibn Majah, Hadith 2008).

But, when it becomes impossible for a couple to co-exist, there are ways to end their misery in a civil manner, leaving an opening to join again in matrimony, if done right. Here is how!

Common ways to end marriage

One divorce is sufficient to end a marriage. There is no need to utter the filmy dialogue of ‘talaq, talaq, talaq’ to bring marriage to an end. Unfortunately, lack of knowledge in this regard makes people utter the divorce words thrice. This, according to some sects’ beliefs, makes the divorce irrevocable. According to Islamic law, dissolution of marriage can be done in different manners.  Pronouncement of divorce or talaq by the husband; khula; talaq-e-mubarat (mutually negotiated divorce as part of the khula process) and talaq by the wife through delegated right of divorce. Dissolution of marriage through court of law is also an option.

Revocable divorce or talaq-i-rajaee

According to sharia law, terminating marriage with a proclaimed divorce is an inalienable right of the man, which he can exercise when he wants. The holy Quran directs a man to give one divorce at a time, in order to keep the door of reconciliation open. The divorce should be pronounced when the woman is in a state of purity. If she is pregnant, the man must wait till the baby is born. Then starts the waiting period of iddah, during which the husband and wife must live under the same roof. The husband has the right to revoke the divorce within this period, and make up, without any ado. After one month, if reconciliation is not effected, the divorce is deemed as final and the woman is free to marry any other man. The husband and wife can even marry each other unconditionally later if they decide they had made a mistake. This divorce is called revocable divorce or talaq-i-rajaee. This was the method employed by Ahmer, who is now living a happy life with Maha.

Irrevocable divorce of minor degree or talaq-i-bain sughra

A man who has used his right to divorce his wife once still has two more divorces in his repertoire. He can use it one more time and make up with his wife within the period of iddah by rescinding divorce. If the divorce is not rescinded within the iddah period, a new nikah with haq mehr is needed, with the wife’s consent, if the husband and wife wish to re-marry. This type of divorce is called talaq-e-bain sughra.

Irrevocable divorce of major degree - talaq-e-bain kubra or mughallaza

After exhausting two divorces, the man has only one option left - the irrevocable divorce, which becomes effective after the third pronouncement. It is called talaq-e-bain kubra or mughallaza. The third divorce means that the couple cannot re-marry, unless the condition of halala is fulfilled. Halala, as we all know, is the condition where a divorced woman marries some other guy and then becomes a widow or divorcee, without any design. After that she can remarry her first husband.

Divorce through khul, or khula

If a husband refuses to divorce his wife, she has the right to obtain khula, through court. In this case, a wife is required to pay her husband the mehr, or any agreed amount to obtain her freedom. The judge can fix that amount for the couple. The divorce pronounced in case of khula, in whatever words it is done, is deemed final and irrevocable. The husband does not have the right to revoke it. However, after the iddah, the woman can marry her husband again. This form of divorce is considered as one. The ex-husband cannot add further talaqs or divorce proclamations onto his ex-wife, as it would be ineffective, and cannot remarry his ex-wife except with new nikah and mehr. Iddah for the wife who obtained khula is one menstruation period.

All people aspiring to enter the state of matrimony should read the injunctions regarding marriage and divorce. A bit of due diligence could save a lot of heartbreaks later.

Less known ways to dissolve marriage...

Talaq-e-mubarat

The literal meaning of the word mubarat is ‘obtaining release from each other.’ When the husband and wife, with mutual consent, seek release from married state. It can be initiated either from the wife or from the husband. As soon as it is accepted, dissolution is complete. It is equivalent to one irrevocable divorce without the aid of the court.

Khiyar-al-buloogh

A woman can also dissolve her marriage if it was arranged before she reached the age of puberty, whether with consent or without her consent, solely by declaring that she has now become an adult and does not recognize the marriage.

 Liaan - dissolution of marriage after charges of adultery

When a husband accuses his wife, he is required to prove his claim. The wife can accept the charge and the ensuing punishment, or deny it. If the man cannot prove it, he is required to take an oath in front of the judge that he believes his wife has committed adultery and the wife has to swear that she is not guilty as charged. After oaths of husband and wife, court can pass order for dissolution of marriage.

Divorce through the delegated right of divorce to women - Haq-e-Tafweez-e-Talaq

Haq-e-Tafweez-e-Talaq is another option for dissolution of marriage under which a woman is granted the right to annul her marriage. It can be delegated by husband to wife both verbally as well as in writing, at the occasion of marriage solemnization or afterwards, with different forms and conditions. If she has this right, she can divorce herself and dissolve the marriage. Once this right is delegated, it cannot be repudiated. The husband’s right of divorce remains intact even after he delegates it to his wife. This option is rarely availed by women, mostly due to ignorance about this provision in the nikahnama. Although the option is there on the official nikahnama, people normally cross it out, often without even consulting the bride. The parents of a bride also do not seek this right for their daughter considering it a bad omen for the beginning of her marital life. In present times, an increasing number of women are seeking this right, especially on the occasion of marriage.

Dissolution of marriage through court

In extreme cases, a woman may seek to terminate her marriage through the court. Courts usually resolve each divorce case within a period of six months. Under Section 2 of the Dissolution of Muslim Marriage Act 1939, a judge can terminate a marriage even without the consent of a husband in the instances: when a husband: is missing, has failed to provide maintenance, is sentenced to imprisonment for seven years, has failed to perform marital obligations, is impotent, is insane, is suffering from leprosy or venereal disease, is cruel, is associated with women of evil repute, attempts to force her to lead an immoral life, dispossesses her of her property, or obstructs her from practicing religion.