The Right to Divorce

The Right to Divorce

Marriage is not just about bringing the physical relationship between a man and a woman within the bounds of law. It is a contract that lays the foundation of a family. This institution of family is an indispensable human requirement. Without it, many basic physiological, psychological, and social needs remain unfulfilled. The institution is founded on a woman's decision to accept her bond with a man not as his friend but as his wife. The decision implies that she has accepted the man as the head of the institution that their matrimonial bond will create. Just as this institution makes it incumbent upon the man that he take the financial responsibility of his wife and children, it also entails that, in the unfortunate case of the need for divorce, the woman not take any step to end the marriage without first resolving matters with the man. Therefore, in a situation requiring dissolution of marriage, she will not divorce the husband; she will ask for divorce. In usual circumstances, it is expected that a decent husband will not refuse his wife's request in a situation where no reasonable possibility of reconciliation exists. However, if the husband does not accept her request, what should a woman do? The shari'ah does not answer this question; instead, as with many other matters related to life, it leaves this matter also to our discretion (ijtihad). Since the Prophet's (sws) time, the procedure that has been adopted for this purpose is that the woman then approaches the court. In our times, this step is often fraught with innumerable difficulties for the woman. One suggestion to resolve this problem is that the man be asked to delegate his authority of divorce to the woman. However, such a demand is again not easy to make in our society, especially on the occasion of marriage. Furthermore, such stipulation also negates the spirit and the wisdom in not giving a woman the right to divorce her husband. Therefore, in our opinion, a law should be enacted at the level of the state that, after a woman's request for termination of marriage, if the husband refuses to divorce her in the next 90 days, the marriage will stand dissolved; if there are any unresolved matters pertaining to wealth or maintenance, either party may approach the court for resolution. Another possibility is that, in the current marriage form, the section for the option of transferring the right of divorce to the wife be replaced with the following statement:

"This marriage contract takes effect with the proviso that, if the wife ever makes a written request for divorce, the husband shall be obliged to divorce her within 90 days. If he does not do that, it shall be deemed that an irrevocable divorce from his side has taken effect. Thereafter, if the husband demands the return of any property or wealth that she received from him, she shall be obliged to return to him that property or wealth except her mahr (bridal gift that the husband gives as a token of his commitment) and maintenance. In case of any difference of opinion regarding the return of this property or wealth, she shall refer the matter to the court."

It is expected that this form will save the woman and her family the embarrassment of laying down this condition as a demand from their side on the occasion of the marriage ceremony.

If and when the divorce proceedings are initiated in accordance with this stipulation, the husband will get a 90-day period to convince the woman [and her family] to withdraw her request.

The divorce, nevertheless, will be from the husband's side, and, therefore, the sanctity and the wisdom in the Divine law will be preserved.

(Translated by Asif Iftikhar)


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