Author is Senior lecturer at KCEF Law College Pulwama
Lessons From The Law
It has been pointed out by several authorities that prior to Islam divorce among the ancient Arabs was easy and of frequent occurrence, and that this tendency has persisted to some extent in Islamic law. But to take a fair and balanced view it must be observed that the Prophet (SAW) showed his dislike to it in no uncertain terms. He is reported to have said that ‘with Allah the most detestable of all things permitted is divorce.
The reforms of Prophet Mohammad (SAW) marked a new departure in the history of Eastern legislation. He restrained the power of divorce possessed by the husbands; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge. He pronounced talaq to be ‘the most detestable before the Almighty God of all permitted things’ for it prevented conjugal happiness and interfered with the proper bringing-up of children. The permission, therefore, in the Quran, though it gave a certain countenance to the old customs, has to be read with the light of the Lawgiver’s own words. When it is borne in mind how intimately law and religion are connected in the Islamic system, it will be easy to understand the bearing of the words on the institution of divorce.
It is sometimes suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause. Dower to some extent results the use of this power. But experience shows that greater suffering is engendered by the husband’s withholding divorce than by his irresponsible exercise of this right. Under such conditions the power to release herself is the surest safeguard for the wife. No system of law can produce marital happiness, but human laws may at least alleviate suffering. And when marital life is wrecked, the home utterly broken up by misunderstanding jealousy, cruelty or infidelity, what greater boon can a wife have than the power to secure her liberty? The unfortunate position of the women of India in due to the fact that women, being illiterate, are ignorant of their rights; and men, being callous, choose to remain ignorant.
This view is shared by a modern author who says: Few will disagree with the passage from Lord Westbury’s speech in Show Gould ( 1868 LR 3 HL 55 ) in which he said : ” Marriage is the very foundation of civil society, and no part of the laws and institutions of a country can be more vital importance to its subjects than those which regulate the manner and conditions of forming and , if necessary , of dissolving , the marriage contract.
If this is true, and it seems to be more true now when so many of the other props of civilization have been weakened, it follows that any legal doctrine which may operate to render uncertain the status of divorced persons, and which may therefore prejudice the stability of a later marriage by either party is a social evil that calls for the intervention of the law reformer. Divorce since it disintegrates the family unity, is of course a social evil in itself, but it is a necessary evil. It is better to wreck the unity of the family than to wreck the future happiness of the parties by binding them to a companionship that has become odious. Membership of a family founded on antagonism can bring little profit even to the children, but though divorce is unavoidable we can at least do our best to ensure that there is no uncertainty in the status of the members of the family after the decree absolute.
The law of divorce, whatever it’s utility during the past, was so interpreted at least in the Hanafi School that it had become a one – sided engine of oppression in the hands of the husband. And almost everywhere Muslims are making efforts to bring the law in accord with modern ideas of social justice.
