Friday, May 13, 2011
VBV - Ch. 4 Pt. 8
Okay. Divorce. Take two...
surah al-Baqarah 2:224-237 covers divorce. I'm not going to quote the whole thing, but if you want to you can click on the link to check it out.
The first portion of an Islamic divorce listed in the separation. A separation period is not, as I understand it, required prior to divorce, but just like in many marriages, some couples may want to try it.
" And make not Allah's (name) an excuse in your oaths against doing good, or acting rightly, or making peace between persons; for Allah is One Who heareth and knoweth all things. Allah will not call you to account for thoughtlessness in your oaths, but for the intention in your hearts; and He is Oft-forgiving, Most Forbearing. For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, Allah is Oft-forgiving, Most Merciful. But if their intention is firm for divorce, Allah heareth and knoweth all things."
The problem with the separation period, historically, was this: men would 'separate' from their wives, which meant that they still had to support the wife financially, food, etc. but they didn't live or act as a married couple. For the husband, not such a big deal, considering that most men of the time had more than one wife, plus female servants who were lawful for them to have intercourse with. So it's not like they were all alone, unlike the wife, who was placed into a sort of limbo. Technically she was still married, but she didn't have all the rights of a wife in 'good standing'. And she was unable to find a new husband, because she was still married. Many husbands would use this period as an indefinite sort of punishment for wives they were angry with. The above verses, along with this hadith:
sahih Bukhari 7:63:213 - "Narrated Nafi:Ibn 'Umar used to say about the Ila (which Allah defined (in the Holy Book), "If the period of Ila expires, then the husband has either to retain his wife in a handsome manner or to divorce her as Allah has ordered." Ibn 'Umar added, "When the period of four months has expired, the husband should be put in prison so that he should divorce his wife, but the divorce does not occur unless the husband himself declares it. This has been mentioned by 'Uthman, 'Ali, Abu Ad-Darda, 'Aisha and twelve other companions of the Prophet .""
Show that Mohammed intended to end the use of this period as a punishment for the women. The separation could only legally last for four months. At the end of that period, the husband had to either actually divorce his wife, or they had to reconcile.
It seems to typically be the men who ask for the divorce, and I'm not entirely clear on what is required, Islamically, to divorce one's wife. From what I've read, all the man seems to need to do is say, 'I divorce you' to his wife and mean it while he is not angry or otherwise non-compose, and the wife is not menstruating.
sahih Muslim 9:3473 - "Ibn 'Umar (Allah be pleased with them) reported that he divorced his wife while she was menstruating during the lifetime of Allah's Messenger (may peace be upon him). 'Umar b. Khattib (Allah be pleased with him) asked Allah's Messenger (may peace be upon him) about it, whereupon Allah's Messenger (may peace be upon him) said: Command him ('Abdullah b. 'Umar) to take her back (and keep her) and pronounce divorce when she is purified and she again enters the period of menstruation and she is again purified (after passing the period of menses), and then if he so desires he may keep her and if he desires divorce her (finally) before touching her (without having an intercourse with her), for that is the period of waiting ('idda) which God, the Exalted and Glorious, has commanded for the divorce of women."
" 228: Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah Hath created in their wombs, if they have faith in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree (of advantage) over them. And Allah is Exalted in Power, Wise."
After the divorce is official, the woman goes into a waiting period, Iddah, for three months. The entire point of this seems to be to ensure paternity. If she comes up pregnant, then she remains in Iddah until the child is delivered. If not, then she is free to seek another marriage.
" 229: A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness. It is not lawful for you, (Men), to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons wrong (Themselves as well as others)."
In Islam, a single couple can marry three times, based on the beginning of this verse. This verse is also the basis for the concept of khul'ah, which is the process by which a woman seeks divorce from her husband. The woman essentially has to pay her husband to divorce him, either giving back her mahr or paying him above and beyond the worth of the mahr. And even then, she is warned in a hadith that Paradise is forbidden to a woman who asks for a divorce without good reason.
sunan Abu Dawud 2218: "Narrated Thawban: The Prophet (peace_be_upon_him) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her."
I should remind everyone that the hadith of Abu Dawud seem to be among the generally unused and unaccepted. But I include it because this seems to be what the ruling is based on. There is an example of the khul'ah in sahih Bukhari 7:63:197 - "Narrated Ibn 'Abbas: The wife of Thabit bin Qais came to the Prophet and said, "O Allah's Apostle! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him)." On that Allah's Apostle said (to her), "Will you give back the garden which your husband has given you (as Mahr)?" She said, "Yes." Then the Prophet said to Thabit, "O Thabit! Accept your garden, and divorce her once.""
Okay. So, the couple may marry and divorce three times. After the third time, they are forbidden to one another. Until after the ex-wife has married and divorced a different man. And this can't just be an 'in name only' marriage. It must be a true marriage, with the intent to remain married, and with the couple living as a married couple, i.e.: sex. If that happens, then the original husband and wife pairing can marry each other again, if they so choose.
" 230: So if a husband divorces his wife (irrevocably), He cannot, after that, re-marry her until after she has married another husband and He has divorced her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by Allah. Such are the limits ordained by Allah, which He makes plain to those who understand."
There is also this idea known as the triple Talaq (divorce), wherein if the man says 'I divorce you' three times in a row to his wife then their divorce is final and irrevocable. It's my understanding that this is a practice accepted by some Sunni, but rejected by the Shia. I believe this is based off of some hadith, but honestly, every page that I try to go to to find out which hadith so I can share them has shut down or is having technical difficulties. So we're s.o.l. there.
" 233: The mothers shall give such to their offspring for two whole years, if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be Treated unfairly on account of her child. Nor father on account of his child, an heir shall be chargeable in the same way. If they both decide on weaning, by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. But fear Allah and know that Allah sees well what ye do."
If the women, in her initial Iddah, is found to be with child, her Iddah lasts until she gives birth. After that, she keeps custody of the child for two years according to this verse, though I recall reading that the child remains in the custody of the mother until it is seven, at which point it goes into the custody of the father since it is a part of the fathers' household and family. Either way, the father remains responsible for the upkeep of the child and the mother.
I don't really have a whole lot of comments on this one. You can be certain that there was maybe a quarter of this information in the books section, but I figured, what the hell. It's the second time I've had to do this post, and so help me, if blogger eats this one, I'm saying screw it. Anyway.
Divorce is divorce. We are taught that God hates it, but that it is allowed because of the hardness of men's hearts. I'm not a big fan of the Islamic version of divorce because it seems to be very easy to do and heavily weighted in the favor of the men as far as who can decide when to get a divorce and the women don't seem to have a lot of power or say in the matter. But then again, I think people should be far more careful about who they marry in the first place.