Question
With the unfortunate schism of Islam into numerous sects today, it has become almost impossible to obtain an accurate response to my query; the various sources I have consulted all seem to have a divergent opinion on this question, depending upon which sect they belong to. I wish to regard this issue – as any other – in the true light of Islam and the Sunnah.
The question I wish to have clarified is a multi-faceted one.
Firstly, does a woman – by Shariah law – have a right to divorce her husband without his consent? Secondly, if she chooses to divorce her husband and the possibility of reconciliation between the couple arises after the three-month “Iddat” period has transpired, is there any way for them to reunite?
The situation I am describing is one where the right of divorce (Talaq-e-Tafweez) has been delegated to the wife unconditionally by the husband in the Nikah contract at the time of marriage. I have been informed by certain sources that this right is itself un-Islamic and it is not for a man to choose whether or not he wishes to delegate this right to his wife, since Allah has not given him that choice. Following this, I have been informed from another source that if the wife has in fact exercised this right (which is itself a questionable situation) and the Iddat period has transpired, then this would count as a single divorce and the couple may reunite after having a Nikah again.
The legal documentation pertaining to this case pronounces divorce by the wife upon the husband three times. Again, a number of questions arise… firstly, is the treble pronouncement of divorce in a single instance Islamically viable? …and secondly, if this is the case, then would the couple have to undergo “Halala” before they may marry each other again?
Yet another source informs me that the divorce is final and there is no way for the couple to reunite except following a Halala… and again, a counter argument to this has been that the basis for a Halala only arises after three divorces and then too, is applicable where the couple have remarried other people with sincere intentions to begin a new life which then has not worked out for whatever reason… but a Halala cannot be implemented with the intention of the initial couple reuniting after marrying other people for the purpose of convenience.
As you can see, the variegated interpretations have me rather confused and I would greatly appreciate any authentic clarification/explanation you may be able to provide in this regard.Â
Thank you in advance.
Answer
I shall try to present below my answers to your questions, according to my understanding of the directives of the Shari`ah.
You write:
Firstly, does a woman – by Shariah law – have a right to divorce her husband without his consent?
The Shari`ah has entrusted the right of divorce to the husband. A woman cannot divorce her husband of her own accord. However, she may ask her husband to divorce her. Under such circumstances, the husband must consider the woman’s request very seriously and, unless he can find a way of reconciling the differences between the two that have led to such a grave situation, should free his wife. In case of the husband’s refusal to grant divorce to his wife, the wife can approach the state (or its representative court of law) and request for divorce. The court, under such circumstances, after making due efforts of striking a reconciliation between the two, should grant divorce – on behalf of the husband – to the wife, irrespective of the reasons which have prompted to the wife to seek divorce.
You write:
Secondly, if she chooses to divorce her husband and the possibility of reconciliation between the couple arises after the three-month “Iddat” period has transpired, is there any way for them to reunite?
The rules of divorce, whether it is affected through the husband’s decision or through the woman’s request, remain the same. Thus, after the expiry of the waiting period, in case the man and the woman want to reunite, they can enter into a new marriage contract – i.e. Nikah.
You write:
The situation I am describing is one where the right of divorce (Talaq-e-Tafweez) has been delegated to the wife unconditionally by the husband in the Nikah contract at the time of marriage. I have been informed by certain sources that this right is itself un-Islamic and it is not for a man to choose whether or not he wishes to delegate this right to his wife, since Allah has not given him that choice. Following this, I have been informed from another source that if the wife has in fact exercised this right (which is itself a questionable situation) and the Iddat period has transpired, then this would count as a single divorce and the couple may reunite after having a nikah again.
In my opinion, the delegation of the right of divorce to the wife is against the spirit of the directives of the Shari`ah. Please note that there is a difference between being ‘un-Islamic’ and being against the spirit of the directives of Islam. If a contract is ‘un-Islamic’ then it should then be repudiated provided:
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Firstly that both the parties involved in it are Muslims; and
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Secondly, that both the parties agree on the point that the contract is, in fact, un-Islamic.
On the contrary, being against the spirit of the Shari`ah does not by itself render the contract void.
Keeping the foregoing point in mind, if a person has delegated his right of divorce to the wife, through an express contract, then this delegation cannot be altered without the mutual consent of both the parties. Furthermore, if the woman has exercised the right delegated to her, it would then be considered as having been exercised by the husband himself (due to the element of divorce). Thus, all the rules relating to normal divorce would apply to the situation: the husband and wife may, after the expiry of the waiting period, enter into a new marriage contract.
You write:
The legal documentation pertaining to this case pronounces divorce by the wife upon the husband three times. Again, a number of questions arise… firstly, is the treble pronouncement of divorce in a single instance Islamically viable? And secondly, if this is the case, then would the couple have to undergo “Halala” before they may marry each other again?
As I have stated earlier the rules of divorce remain the same whether divorce has been affected through the decision of the husband, through the request of the wife or through the authority delegated to the wife through the husband. The same principle would apply to this situation as well. However, for my opinion regarding the pronunciation of multiple divorce at one time, I would request you to kindly refer to a few of my earlier responses to related questions.
I hope the foregoing clarification shall also take care of your other concerns.
Please note that the foregoing paragraphs present my opinion on the particular issues on which it is sought. Nothing contained in this response should be construed to overrule, refute or in any way alter any laws and legislations that apply to the place of residence of the inquirer.
I hope this helps.
Regards,
Moiz Amjad
January 31, 2003