D.
Project Gutenberg EPUB3 edition
Hughes, Thomas Patrick
“Mothers, when divorced, shall give suck to their children two full years, if the father desire that the suckling be completed; and such maintenance and clothing as is fair for them, shall devolve on the father. No person shall be charged beyond his means. A mother shall not be pressed unfairly for her child, nor a father for his child: And the same with the father’s heir. But if they choose to wean the child by consent and by bargain, it shall be no fault in them. And if ye choose to have a nurse for your children, it shall be no fault in you, in case ye pay what ye promised her according to that which is fair. Fear God, and know that God seeth what ye do.
“It shall be no crime in you if ye divorce your wives so long as ye have not consummated the marriage, nor settled any dowry on them. And provide what is needful for them—he who is in ample circumstances according to his means, and he who is straitened, according to his means—with fairness: This is binding on those who do what is right.
“But if ye divorce them before consummation, and have already settled a dowry on them, ye shall give them half of what ye have settled, unless they make a release, or he make a release in whose hand is the marriage tie. But if ye make a release, it will be nearer to piety.”
“O Prophet! when ye divorce women, divorce them at their special times. And reckon those times exactly, and fear God your Lord. Put them not forth from their houses, nor allow them to depart, unless they have committed a proven adultery. This is the precept of God; and whoso transgresseth the precept of God, assuredly imperilleth his own self. Thou knowest not whether, after this, God may not cause something new to occur which may bring you together again.
“And when they have reached their set time, then either keep them with kindness, or in kindness part from them. And take upright witnesses from among you, and bear witness as unto God. This is a caution for him who believeth in God and in the latter day. And whoso feareth God, to him will He grant a prosperous issue, and will provide for him whence he reckoned not upon it.
“And for him who putteth his trust in Him will God be all-sufficient. God truly will attain his purpose. For everything hath God assigned a period.
“As to such of your wives as have no hope of the recurrence of their times, if ye have doubts in regard to them, then reckon three months, and let the same be the term of those who have not yet had them. And as to those who are with child, their period shall be until they are delivered of their burden. God will make His command easy to Him who feareth Him.
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“Lodge the divorced wherever ye lodge, according to your means; and distress them not by putting them to straits. And if they are pregnant, then be at charges for them till they are delivered of their burden; and if they suckle your children, then pay them their hire and consult among yourselves, and act generously: And if herein ye meet with obstacles, then let another female suckle for him.”
II. The teaching of Muḥammad on the general subject of Divorce is expressed in the Traditions as follows:—
“The thing which is lawful but disliked by God is divorce.”
“The woman who asks her husband to divorce her without a cause, the smell of Paradise is forbidden her.”
“There are three things which, whether done in joke or in earnest, shall be considered serious and effectual, namely, marriage, divorce, and taking a wife back.”
“Every divorce is lawful except a mad-man’s.”
“Cursed be the second husband who makes the wife (divorced) lawful for her first husband, and cursed be the first husband for whom she is made lawful.”—(Mishkāt, xiii. c. xv.)
III. Sunnī Muḥammadan Doctors are not agreed as to the Moral Status of Divorce.
The Imām ash-Shāfiʿī, referring to the three kinds of divorce (which will be afterwards explained), says: “They are unexceptionable and legal because divorce is in itself a lawful act, whence it is that certain laws have been instituted respecting it; and this legality prevents any idea of danger being annexed to it.” But, on the other hand, the Imām Abū Ḥanīfah and his disciples say that divorce is in itself a dangerous and disapproved procedure, as it dissolves marriage, an institution which involves many circumstances both of a spiritual as well as of a temporal nature. Nor is its propriety at all admitted, but on the ground of urgency of release from an unsuitable wife. And in reply to ash-Shāfiʿī, they say that the legality of divorce does not prevent its being considered dangerous, because it involves matters of both a spiritual and temporal character.
The author of the Sharḥu ʾl-Wiqāyah, p. 108, says:—“Divorce is an abominable transaction in the sight of God, therefore such an act should only take place from necessity, and it is best to only make the one sentence of divorce” (i.e. t̤alāqu ʾl-aḥsan).
IV. The Sunnī Law of Divorce:—Divorce may be given either in the present time or may be referred to some future period. It may be pronounced by the husband either before or after the consummation of the marriage. It may be either given in writing or verbally.
The words by which divorce can be given are of two kinds:—Ṣarīḥ, or “express,” as when the husband says, “Thou art divorced”; and kināyah, or “metaphorical,” as when he says, “Thou art free; thou art cut off; veil yourself! Arise! seek for a mate,” &c. &c.
Divorce is divided into t̤alāqu ʾs-sunnah, or that which is according to the Qurʾān and the Traditions, and t̤alāqu ʾl-badiʿ, or a novel or heterodox divorce, which, although it is considered lawful, is not considered religious.
T̤alāqu ʾs-sunnah is either the aḥsan, or “the most laudable,” or ḥasan, the “laudable” method. T̤alāqu ʾl-aḥsan, or the “most laudable” method of divorce, is when the husband once expressly pronounces to his enjoyed but un-pregnant wife the sentence, “Thou art divorced!” when she is in t̤uhr or a state of purity, during which he has had no carnal connection with her, and then leaves her to complete the prescribed ʿiddah, or “period of three months.” Until the expiration of the ʿiddah, the divorce is revocable, but after the period is complete, it is irreversible, and if the husband wishes to take his wife back, they must go through the ceremony of marriage. But it must be observed that after the t̤alāqu ʾl-aḥsan, the woman is not, as in the other kinds of divorce, compelled to marry another man, and be divorced before she can return to her former husband. All that is required is a re-marriage. The author of the Hidāyah says this mode of divorce is called aḥsan, or “most laudable,” because it was usually adopted by the Companions of the Prophet, and also because it leaves it in the power of the husband to take his wife back, and she thus remains a lawful subject for re-marriage to him. Some European writers on Muḥammadanism have overlooked this fact in condemning the Muslim system of divorce.
The t̤alāqu ʾl-ḥasan, or “laudable divorce,” is when the husband repudiates an enjoyed wife by three sentences of divorce, either express or metaphorical, giving one sentence in each t̤uhr, or “period of purity.” Imām Mālik condemns this kind of divorce, and says it is irregular. But Abū Ḥanīfah holds it to be ḥasan, or “good.”
The t̤alāqu ʾl-badiʿ, or “irregular form of divorce,” is when the husband repudiates his wife by three sentences, either express or metaphorical, given them one at a time: “Thou art divorced! Thou art divorced! Thou art divorced!” Or, “Thou art free! Thou art free! Thou art free!” Even holding up three fingers, or dropping three stones, is held to be a sufficiently implied divorce to take legal effect. The Muslim who thus divorces his wife is held, in the Hidāyah, to be an offender against the law, but the divorce, however irregular, takes legal effect.
In both these kinds of divorce, badiʿ and ḥasan, the divorce is revocable (rajīʿ) after the first and second sentences, but it is irrevocable (bāʾin) after the third sentence. After both ḥasan and badiʿ divorces, the divorced wife cannot, under any circumstances, return to her husband until she has been married, and enjoyed, and divorced by another husband. Muḥammadan doctors say the law has instituted this (somewhat disgraceful) arrangement in order to prevent divorces other than t̤alāqu ʾl-aḥsan.
A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause. The divorce of every husband is effective if he be of a sound understanding and of mature age; but that of a boy, or a lunatic, or one talking in his sleep, is not effective.
If a man pronounce a divorce whilst in a state of inebriety from drinking fermented liquor, such as wine, the divorce takes place. Repudiation by any husband who is sane and adult, is effective, whether he be free or a slave, willing, or acting under compulsion; and even though it were uttered in sport or jest, or by a mere slip of the tongue, instead of some other word. (Fatāwā-i-ʿĀlamgīrī, vol. i. p. 497.)
A sick man may divorce his wife, even though he be on his death-bed.
An agent or agents may be appointed by a husband to divorce his wife.
In addition to the will and caprice of the husband, there are also certain conditions which require a divorce.
The following are causes for divorce, but generally require to be ratified by a decree from the Qāẓī or “judge”:—
(1.) Jubb. That is, when the husband has been by any cause deprived of his organ of generation. This condition is called majbūb. In this case the wife can obtain instant divorce if the defect occurred before marriage. Cases of evident madness and leprosy are treated in the same way. Divorce can be obtained at once.
(2.) ʿUnnah, or “impotence.” (This includes ratq, “vulva impervia cœunti”; and qarn, “vulva anteriore parte enascens.”) In cases of impotency in either husband or wife, a year of probation can be granted by the judge.
(3.) Inequality of race or tribe. A woman cannot be compelled to marry a man who belongs to an inferior tribe, and, in case of such a marriage, the elders of the superior tribe can demand a divorce; but if the divorce is not demanded, the marriage contract remains.
(4.) Insufficient dower. If the stipulated dowry is not given when demanded, divorce takes place.
(5.) Refusal of Islām. If one of the parties embrace Islām, the judge must offer it to the other three distinct times, and if he or she refuse to embrace the faith, divorce takes place.
(6.) Laʿn, or “imprecation.” That is, when a husband charges his wife with adultery, the charge is investigated, but if there is no proof, and the man swears his wife is guilty, and the wife swears she is innocent, a divorce must be decreed.
(7.) Īlāʾ, or “vow.” When a husband makes a vow not to have carnal intercourse with his wife for no less than four months, and keeps the vow inviolate, an irreversible divorce takes place.
(8.) Reason of property. If a husband become the proprietor of his wife (a slave), or the wife the proprietor of her husband (a slave), divorce takes place.