1324. Introduction

This is an ingenious legislation of Islam. While terminating a marriage is detested or forbidden when unwarranted, it is still a necessity sometimes to save certain couples from their failed marriages. Islam gives the man the right to divorce, and makes it easy to conduct, because he is the one who is responsible for the expenses of marriage and for the expenses of divorce, including the alimony and maintenance of the wife as well as the ongoing maintenance of his children in a different household. These responsibilities will usually deter him from making a hasty decision to terminate the marriage. On the other hand, Islam does not leave the wife powerless in a failed relationship. If she proves to the court that her husband has harmed her or deprived her of her rights, she will be granted a court-ordered divorce, while retaining all her financial rights. The specifics of those harms vary from one madh-hab to another, but the Ḥanbali madh-hab considers: failure to provide sustenance, unexcused absence, abandonment (eelâ’), and defects that warrant annulment even if they arise after marriage. The Mâlikis explicitly state that the woman deserves to be granted a divorce if her husband has abused her verbally or physically, whereas the Ḥanbalis leave that up to the judge and arbitrators. In some cases, the court rejects a woman’s request for a divorce, or there has been no abuse, but she nevertheless cannot bear to stay in the marriage. If her husband refuses to give her a divorce, she is entitled to khul‘, another form of terminating a marriage, through a process that is somewhat lengthier than that of a divorce. It requires her to return to the husband his ṣadâq and gifts (which is only fair and important to prevent unethical women from abusing the institution of marriage). If the husband refuses to cooperate with her, then judicial intervention is required, and the judiciary should remind the wife of the evils and dangers of an unwarranted termination of marriage.