I have 2 questions regarding the issue of divorce.
- Having difficulties with her marriage ,a wife refuses to go for mediation or counselling first ,as is enjoined in the Quran(4:35) and just wants to ask for divorce. Should the syariah court ordered counseling to be done first or it can just proceed with the court hearing.
- It is reported in the hadith of the Prophet (peace and blessings of Allah be upon him), “If a women asks her husband for a divorce, for no reason, then the smell of paradise is forbidden for her”. However a hadeeth narrated by al-Bukhaari in his Saheeh (4867) from Ibn ‘Abbaas, in which it says that the wife of Thaabit ibn Qays came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “O Messenger of Allaah, I do not blame Thaabit ibn Qays for any defect in his character or his religious commitment, but I would hate to commit an act of kufr when I am a Muslim.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said, “Will you give him back his garden [which he had given as mahr]?” She said, “Yes.” The Messenger of Allaah (peace and blessings of Allaah be upon him) said (to Thaabit), “Accept the garden, and divorce her once.” It was clearly stated “I do not blame Thaabit ibn Qays for any defect in his character or his religious commitment,” but yet her demand for divorce was being endorsed .How do resolve the above 2 hadiths?
- First the verse 4:35 does not ask the couple to seek counselling, it is asking their closed ones and the community around them to arrange to provide the counselling for them. Second, the counseling is not a prerequisite of the divorce procedure. This is simply an advice to the people who know the couple to try to bring peace between them.
- There is no conflict between the two Hadith. The first Hadith does not say “divorce for no reason”. It is impossible for a human being to demand something for no reason. The Hadith actually says:” “أَيُّمَا امْرَأَةٍ سَأَلَتْ زَوْجَهَا طَلاَقًا مِنْ غَيْرِ بَأْسٍ فَحَرَامٌ عَلَيْهَا رَائِحَةُ الْجَنَّةِ, which means “divorce without any bad thing (in the husband)”. In the second Hadith the wife is indirectly saying that she is not attracted to her husband. This is the “bad thing in the husband” from her point of view.
Please also note that the first Hadith is not reported in the more reliable books of Hadith. Also note that the wording of it should not be taken literally. After all, knowing the criteria of going to heaven or hell in the Qur’an, how is it possible that a woman only by asking for a divorce (without seeing any bad thing in her husband) will become disqualified to go to heaven? If we assume that the Hadith is reliable and its wording is reported accurately then this can only be seen as the Prophet (pbuh) discouraging women from this. This is a common sense use of language in the style of exaggeration that is used in many languages including Arabic language.