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The three religions have remarkable differences in their attitudes towards
divorce. Christianity abhors divorce altogether. The New Testament unequivocally
advocates the indissolubility of marriage. It is attributed to Jesus to
have said, "But I tell you that anyone who divorces his wife, except for
marital unfaithfulness, causes her to become adulteress, and anyone who
marries the divorced woman commits adultery" (Matthew 5:32). This uncompromising
ideal is, without a doubt, unrealistic. It assumes a state of moral perfection
that human societies have never achieved. When a couple realizes that their
married life is beyond repair, a ban on divorce will not do them any good.
Forcing ill matched couples to remain together against their wills is neither
effective nor reasonable. No wonder the whole Christian world has been
obliged to sanction divorce.
Judaism, on the other hand, allows divorce even without any cause. The
Old Testament gives the husband the right to divorce his wife even if he
just dislikes her:
"If a man marries a woman who becomes displeasing to him because
he finds something indecent about her, and he writes her a certificate
of divorce, gives it to her and sends her from his house, and if after
she leaves his house she becomes the wife of another man, and her second
husband dislikes her and writes her a certificate of divorce, gives it
to her and sends her from his house, or if he dies, then her first husband,
who divorced her, is not allowed to marry her again after she has been
defiled" (Deut. 24:1-4).
The above verses have caused some considerable debate among Jewish scholars
because of their disagreement over the interpretation of the words "displeasing",
"indecency", and "dislikes" mentioned in the verses. The Talmud records
their different opinions:
"The school of Shammai held that a man should not divorce his wife
unless he has found her guilty of some sexual misconduct, while the school
of Hillel say he may divorce her even if she has merely spoiled a dish
for him. Rabbi Akiba says he may divorce her even if he simply finds another
woman more beautiful than she" (Gittin 90a-b).
The New Testament follows the Shammaites opinion while Jewish law has followed
the opinion of the Hillelites and R. Akiba [33]. Since the Hillelites view
prevailed, it became the unbroken tradition of Jewish law to give the husband
freedom to divorce his wife without any cause at all. The Old Testament
not only gives the husband the right to divorce his "displeasing" wife,
it considers divorcing a "bad wife" an obligation:
"A bad wife brings humiliation, downcast looks, and a wounded heart.
Slack of hand and weak of knee is the man whose wife fails to make him
happy. Woman is the origin of sin, and it is through her that we all die.
Do not leave a leaky cistern to drip or allow a bad wife to say what she
likes. If she does not accept your control, divorce her and send her away"
(Ecclesiastes 25:25).
The Talmud has recorded several specific actions by wives which obliged
their husbands to divorce them: "If she ate in the street, if she drank
greedily in the street, if she suckled in the street, in every case Rabbi
Meir says that she must leave her husband" (Git. 89a). The Talmud has also
made it mandatory to divorce a barren wife (who bore no children in a period
of ten years): "Our Rabbis taught: If a man took a wife and lived with
her for ten years and she bore no child, he shall divorce her" (Yeb. 64a).
Wives, on the other hand, cannot initiate divorce under Jewish law.
A Jewish wife, however, could claim the right to a divorce before a Jewish
court provided that a strong reason exists. Very few grounds are provided
for the wife to make a claim for a divorce. These grounds include: A husband
with physical defects or skin disease, a husband not fulfilling his conjugal
responsibilities, etc. The Court might support the wife's claim to a divorce
but it cannot dissolve the marriage. Only the husband can dissolve the
marriage by giving his wife a bill of divorce. The Court could scourge,
fine, imprison, and excommunicate him to force him to deliver the necessary
bill of divorce to his wife. However, if the husband is stubborn enough,
he can refuse to grant his wife a divorce and keep her tied to him indefinitely.
Worse still, he can desert her without granting her a divorce and leave
her unmarried and undivorced. He can marry another woman or even live with
any single woman out of wedlock and have children from her (these children
are considered legitimate under Jewish law). The deserted wife, on the
other hand, cannot marry any other man since she is still legally married
and she cannot live with any other man because she will be considered an
adulteress and her children from this union will be illegitimate for ten
generations. A woman in such a position is called an agunah (chained woman)
[34]. In the United States today there are approximately 1000 to 1500 Jewish
women who are agunot (plural for agunah), while in Israel their number
might be as high as 16000. Husbands may extort thousands of dollars from
their trapped wives in exchange for a Jewish divorce [35].
Islam occupies the middle ground between Christianity and Judaism with
respect to divorce. Marriage in Islam is a sanctified bond that should
not be broken except for compelling reasons. Couples are instructed to
pursue all possible remedies whenever their marriages are in danger. Divorce
is not to be resorted to except when there is no other way out. In a nutshell,
Islam recognizes divorce, yet it discourages it by all means. Let us focus
on the recognition side first. Islam does recognize the right of both partners
to end their matrimonial relationship. Islam gives the husband the right
for Talaq (divorce). Moreover, Islam, unlike Judaism, grants the wife the
right to dissolve the marriage through what is known as Khula' [36]. If
the husband dissolves the marriage by divorcing his wife, he cannot retrieve
any of the marriage gifts he has given her. The Qur'an explicitly prohibits
the divorcing husbands from taking back their marriage gifts no matter
how expensive or valuable these gifts might be:
"But if you decide to take one wife in place of another, even if
you had given the latter a whole treasure for dower, take not the least
bit of it back; Would you take it by slander and a manifest wrong?" (Qur'an
4:20).
In the case of the wife choosing to end the marriage, she may return the
marriage gifts to her husband. Returning the marriage gifts in this case
is a fair compensation for the husband who is keen to keep his wife while
she chooses to leave him. The Qur'an has instructed Muslim men not to take
back any of the gifts they have given to their wives except in the case
of the wife choosing to dissolve the marriage:
"It is not lawful for you (Men) to take back any of your gifts
except when both parties 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" (Qur'an 2:229).
Also, a woman came to the Prophet Muhammad seeking the dissolution of her
marriage, she told the Prophet that she did not have any complaints against
her husband's character or manners. Her only problem was that she honestly
did not like him to the extent of not being able to live with him any longer.
The Prophet asked her: "Would you give him his garden (the marriage gift
he had given her) back?" she said: "Yes". The Prophet then instructed the
man to take back his garden and accept the dissolution of the marriage
(Sahih Bukhari).
In some cases, A Muslim wife might be willing to keep her marriage but
find herself obliged to claim for a divorce because of some compelling
reasons such as: Cruelty of the husband, desertion without a reason, a
husband not fulfilling his conjugal responsibilities, etc. In these cases
the Muslim court dissolves the marriage [37].
In short, Islam has offered the Muslim woman some unequalled rights:
she can end the marriage through Khula' and she can sue for a divorce.
A Muslim wife can never become chained by a recalcitrant husband. It was
these rights that enticed Jewish women who lived in the early Islamic societies
of the seventh century C.E. to seek to obtain bills of divorce from their
Jewish husbands in Muslim courts. The Rabbis declared these bills null
and void. In order to end this practice, the Rabbis gave new rights and
privileges to Jewish women in an attempt to weaken the appeal of the Muslim
courts. Jewish women living in Christian countries were not offered any
similar privileges since the Roman law of divorce practised there was no
more attractive than the Jewish law [38].
Let us now focus our attention on how Islam discourages divorce. The
Prophet of Islam told the believers that:
"among all the permitted acts, divorce is the most hateful to God"
(Abu Dawood).
A Muslim man should not divorce his wife just because he dislikes her.
The Qur'an instructs Muslim men to be kind to their wives even in cases
of lukewarm emotions or feelings of dislike:
"Live with them (your wives) on a footing of kindness and equity.
If you dislike them it may be that you dislike something in which Allah
has placed a great deal of good" (Qur'an 4:19).
Prophet Muhammad gave a similar instruction:
"A believing man must not hate a believing woman. If he dislikes
one of her traits he will be pleased with another" (Sahih Muslim).
The Prophet has also emphasized that the best Muslims are those who are
best to their wives:
"The believers who show the most perfect faith are those who have
the best character and the best of you are those who are best to their
wives" (Tirmidhi).
However, Islam is a practical religion and it does recognize that there
are circumstances in which a marriage becomes on the verge of collapsing.
In such cases, a mere advice of kindness or self restraint is no viable
solution. So, what to do in order to save a marriage in these cases? The
Qur'an offers some practical advice for the spouse (husband or wife) whose
partner (wife or husband) is the wrongdoer. For the husband whose wife's
ill-conduct is threatening the marriage, the Qur'an gives four types of
advice as detailed in the following verses:
"As to those women on whose part you fear disloyalty and ill-conduct,
(1) Admonish them, (2) refuse to share their beds, (3) beat them; but if
they return to obedience seek not against them means of annoyance: For
Allah is Most High, Great. (4) If you fear a break between them, appoint
two arbiters, one from his family and the other from hers; If they wish
for peace, Allah will cause their reconciliation" (Qur'an 4:34-35).
The first three are to be tried first. If they fail, then the help of the
families concerned should be sought. It has to be noted, in the light of
the above verses, that beating the rebellious wife is a temporary measure
that is resorted to as third in line in cases of extreme necessity in hopes
that it might remedy the wrongdoing of the wife. If it does, the husband
is not allowed by any means to continue any annoyance to the wife as explicitly
mentioned in the verse. If it does not, the husband is still not allowed
to use this measure any longer and the final avenue of the family-assisted
reconciliation has to be explored.
Prophet Muhammad has instructed Muslim husbands that they should not
have recourse to these measures except in extreme cases such as open lewdness
committed by the wife. Even in these cases the punishment should be slight
and if the wife desists, the husband is not permitted to irritate her:
"In case they are guilty of open lewdness you may leave them alone
in their beds and inflict slight punishment. If they are obedient to you,
do not seek against them any means of annoyance" (Tirmidhi)
Furthermore, the Prophet of Islam has condemned any unjustifiable beating.
Some Muslim wives complained to him that their husbands had beaten them.
Hearing that, the Prophet categorically stated that:
"Those who do so (beat their wives) are not the best among you"
(Abu Dawood).
It has to be remembered at this point that the Prophet has also said:
"The best of you is he who is best to his family, and I am the
best among you to my family" (Tirmidhi).
The Prophet advised one Muslim woman, whose name was Fatimah bint Qais,
not to marry a man because the man was known for beating women:
"I went to the Prophet and said: Abul Jahm and Mu'awiah have proposed
to marry me. The Prophet (by way of advice) said: As to Mu'awiah he is
very poor and Abul Jahm is accustomed to beating women" (Sahih Muslim).
It has to be noted that the Talmud sanctions wife beating as chastisement
for the purpose of discipline [39]. The husband is not restricted to the
extreme cases such as those of open lewdness. He is allowed to beat his
wife even if she just refuses to do her house work. Moreover, he is not
limited only to the use of light punishment. He is permitted to break his
wife's stubbornness by the lash or by starving her [40].
For the wife whose husband's ill-conduct is the cause for the marriage's
near collapse, the Qur'an offers the following advice:
"If a wife fears cruelty or desertion on her husband's part, there
is no blame on them if they arrange an amicable settlement between themselves;
and such settlement is best" (Qur'an 4:128).
In this case, the wife is advised to seek reconciliation with her husband
(with or without family assistance). It is notable that the Qur'an is not
advising the wife to resort to the two measures of abstention from sex
and beating. The reason for this disparity might be to protect the wife
from a violent physical reaction by her already misbehaving husband. Such
a violent physical reaction will do both the wife and the marriage more
harm than good. Some Muslim scholars have suggested that the court can
apply these measures against the husband on the wife's behalf. That is,
the court first admonishes the rebellious husband, then forbids him his
wife's bed, and finally executes a symbolic beating [41].
To sum up, Islam offers Muslim married couples much viable advice to
save their marriages in cases of trouble and tension. If one of the partners
is jeopardizing the matrimonial relationship, the other partner is advised
by the Qur'an to do whatever possible and effective in order to save this
sacred bond. If all the measures fail, Islam allows the partners to separate
peacefully and amicably.
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Fiqh
