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06-23-2013, 01:18 AM #1
Marriage and Divorce in light of Quran and SunnahMarriage and Divorce in light of Qur'an and Sunnah
In order to understand the Islamic law of Divorce, it is necessary to know the nature of the marriage contract in Islam.
Marriage in Islam is not simple contract like other commercial contracts such as sale, hire, surety ship, partnership, donation etc. In essence the marriage tie in Islam consists of two elements of contract and that of ibadat (Worship). Marriage viewed from one perspective is a contractual relationship in that is based on the consent of the parties. From other perspective, it is an act of Ibadat.
This difference in the nature of marriage as opposed to ordinary commercial contracts is due to the following reason:
Firstly, the presence of two witnesses is an essential requirement for the validity of the marriage. In the case of ordinary contracts the absence of witness does not affect their formation.
Secondly, the Khutba ( “Preliminary address”) and the E’hlaan (Announcement) confer on the contract the element of Ibadat.
Thirdly, marriage has been greatly emphasized as opposed to other contracts.
Take the following two Ahadits
1 "Marriage is of my sunnah"
2 “Whoever has the ability to marry, he must marry”
Accordingly, having regard to the difference between the marriage contract and ordinary contracts in relation to their formation, the manner of dissolution of these contracts differs. The dissolution of the marriage is subject to certain conditions which are set out.
Conditions Relating to Dissolution
1 Divorce Instrument of Last Resort
The fact that marriage includes an element of Ibadat means that the marriage relationship must be a permanent one and not be terminated willy nilly at the instance of the husband.
Accordingly, in the event of disputes between the parties, the Qur'an has specified certain preliminary steps such as admonishment in a kind manner, Which are directed towards the settlement of these disputes and the maintenance of the marriage relationship are considered as a cornerstone of a healthy society. Marriage breakdowns not only cause considerable hardship to the parties concerned and any children born of the marriage but are also detrimental to society at large.
If these preliminary steps fail, the Qur'an provides that an effort be made to resolve the dispute by means of arbitration. In this respect the Quran states:
If you fear a breach between them (Husband and wife) appoint a judge from his family and a judge from her family, if they both ( Arbitrators) wish for peace Allah will cause their reconciliation. Allah is all knowing, the most great" ( S4: V35)
The wisdom of appointing arbitrators belonging to the families of the parties is the dispute is confined to the family and is not given adverse publicity. At the same time the arbitrators would most properly understand the dispute being familiar with the parties lifesytles and habits and would be most inclined to upholding the marriage. Again as the verse states , if the arbitrators sincerely desire reconciliation they would receive the unseen help of Allah and such reconciliation would in fact be achieved.
Where all efforts towards reconciliation fail and there is no prospect whatsoever of reconciliation, then in such even the husband may exercise his right of divorce as an instrument of last resort and by way of necessity. In such a case the right may be exercised because it would be unjust to both parties to maintain a marriage which has irretrievably broken down. The right of divorce as an instrument of last resort is clear from the following Hadith:
Last edited by kashif16; 06-23-2013 at 04:49 PM.
06-23-2013, 05:12 PM #2
The worst of permissible things in the sight of Allah is Talaq/Divorce.
2 Right of Divorce Must Be Exercised IN The Prescribed Time: Period of Purity
The contract of marriage should not be cancelled at any time at the arbitrary will of the husband. Ordinaray contracts, on the other hand, may be cancelled at any time bilaterally or unilaterally by words, conduct or writing thereby entitling the contracts parties to enter into new contracts with thrid persons. This difference in the manner of termination between ordinary contracts and marriages is due to the fact that the latter contracts must only be dissolved in the case of the utmost necessity.
The Qur'an has specified a fixed period which the right of divorce must be exercised:
"When you divorce women, divorce them at their prescribed periods" (S65:V1)
The prescribed periods referred to in this verse mean a period of purity in which sexual realtions have not taken palace. This also appears from a statement of a well known companion and jurist Ibn Masud:
"On the authority of Ibn Masud who said: The statment of Allah Divorce them at their prescribed periods means (Divorce them) in period of purity in which sexual intercourse has not teaken palce"
06-23-2013, 05:19 PM #3
In short, therefore, the right of divorce must be exercised in a period of purity in which sexual relations have not taken place.
The benefit of prescribing a fixed time is that by awaiting the arrival thereof, the possibility of reconciliation remains in that tempers may be cool and normal family life restored in the intervening period. it is, therefore, clear that the right of divorce is not a mere tool be manipulated at the will of the husband and subject to his whim and fancy.
08-13-2013, 03:30 PM #4
- Join Date
- Aug 2013
Really informative, thanks a lot for sharing such a nice and informative article to us. As a student of law I always engaged in the search of this kind of article, which may help me in my major studies.
11-22-2013, 11:01 PM #5
there's a trend that if you marry at such a young age, you will get divorced easily.