Why Is the Right of Divorce Given to Men in Islam?

Granting men the right of divorce is the most natural and logical way possible because giving it to the couple probably would not end well, for if not coming into an agreement on divorce, they would be obliged to continue their hard life and therefore no freedom from this situation could be gained.

 

Ijtihadnet: Divorce is primarily in the hands of men, although it is accompanied with terms and conditions set by Islam. This suits the natural state of being married and is not in relation to mere contracts or credits because men are naturally suitors and they initiate marriage.

Marriage is a natural mechanism in which women are loved and respected in the family circle. When the man’s flame of love stops burning for his wife, the basic pillar of family will be ruined and this small community will naturally fall apart.

Legal keeping of the woman in the house cannot make her beloved of the man and will not help build the ruins. Therefore, Islam advises women to do something to become absolutely beloved by their husbands and make them infatuated with themselves. The reverse is not true however, i.e. women’s losing interest in their husbands is not the end of their family life, because women’s dislike for their husbands will not only cause them to lose interest in their wives but also it would habitually make this interest even deeper and stronger, since the man wants the woman herself and she wishes for the man’s love and affection. In addition, women can ask for divorce in cases necessary and can even make a provision at the time of marriage to have the right of divorce.

Thus, granting men the right of divorce is the most natural and logical way possible because giving it to the couple probably would not end well, for if not coming into an agreement on divorce, they would be obliged to continue their hard life and therefore no freedom from this situation could be gained. As a result, there is no choice other than granting this right to either women or men. It is clearly not prudent to give this right to women according to the emotional and sentimental aspects of their personality. Therefore, it is men who are granted the right of divorce as a last resort, because their rationality, firmness, foresight and also their grave responsibilities in the family predominate.

Men should not be tyrannical in the exercise of the power to divorce, rather, they must use this power while they adhere to justice and preserve women’s rights even after they separated and got divorced.

In order for the adherence to this principle to be guaranteed, the formula of divorce must be pronounced in the presence of two fair witnesses. This could prevent acrimonious divorces. In other words, married life requires management and the issue of separation and divorce is one of the aspects of this management which does not exceed the following cases:

1. The right of divorce should be vested in the husband.
2. The right of divorce should be vested in the wife.
3. Both should independently have this right.
4. They should have a shared right.
5. There should be no right of divorce at all.

The fifth assumption is incorrect, because separation and breaking the relationship off is sometimes for the own good of the two parties.

The fourth assumption is not rational either and is in contradiction with the philosophy of creating the divorce law, because one person might want divorce while the other might not.

The second and third assumptions would increase the divorce rate as happened in European countries, like France, etc, where they base divorce on them. According to some statistics, 87% of divorces in France have been initiated by women. While in the religion of Islam, divorce is accepted only as an exit from a dead end. It is considered as an emergency and desperate situation that should be as limited as possible.

As further explanation, granting women the power to divorce will increase the divorce rate (based on statistics, women often ask for divorce). The reason is that women are more sentimental and faster in expressing their many emotions and this is a fact which has been proved in modern psychology and sociology. Some western countries have experienced this. Giving women the power to divorce can also lead to a decrease in affection in the family circle as well as in the man’s heart.

As a result, the first case is the best assumption. Of course limitations are put for men in exercising this right in Sharia[1] and law. There are also conditions in which women have the right to divorce which prevents cruelty towards them, like divorce through power of attorney, judicial divorce at the wife’s initiative and uncontested divorce. Therefore, the way is not completely blocked for women.

Nevertheless, the right of divorce is not exclusively granted to women. In addition to the above reasons, financial and economic benefits lie within marriage for women, and not only has it got no benefit for men, but it also puts financial burden like Mahr[2] on their shoulders. So, divorce cannot be exclusively in the hands of women, since it has no costs for them and can even bring economic benefits while that might not be the case for men.

Yet, the right of divorce is transferable. Thus, the woman can transfer this right and authority to herself through the power of attorney with the proviso that she would release herself from marriage if her husband turned out to be a drug addict or a terminal patient. This is done at the time the marriage formula is being pronounced.

Additionally, if a man turns out to be cruel to his wife in their family life and is neither willing or able to change his behavior nor willing to divorce her, the woman can go to the Islamic court so that the judge grants her divorce and free her despite the man’s disagreement.

Article 1119 of Islamic Republic of Iran’s civil code states, “The parties to the marriage can stipulate any condition to the marriage which is not incompatible with the nature of the contract of marriage, either as part of the marriage contract or in another binding contract, so that the wife has the power to obtain a divorce herself.”

Therefore, in terms of Fiqh[3] and the civil code of Iran, although men have the natural right of divorce, it can be transferred to women as a contractual right.

Thus, Islam approves this theory about the right of divorce that there is an open way to getting divorced for women.

Women can stipulate in the marriage contract that they have the power to obtain a divorce through power of attorney.

In case of the husband’s refusal to grant divorce, the wife can go to the judge to obtain divorce.

But the question is: is it the same in other religions?

Before the advent of Islam, women had no respect, nobleness and independence in the eyes of people. They didn’t leave women any inheritance, men were allowed to have as many wives as they wanted, they buried females alive and hearing the news of the birth of a female was evil for them.

Women had no social value and worth. If they had been deemed to be in the human category, they would have been recognized as weak and of low level of humanity. Under all circumstances, divorce was vested in men.

The man divorced his wife whenever he wanted, and if he wished, he would return during the period of Iddah[4]. Sometimes, he repeated this divorcing and returning in a way that made it impossible for her to remarry.

Women could remarry after divorce and the period of Iddah according to the criteria and customs which persisted in that society. Therefore, neither did he live with her nor would he leave her alone so that she could marry another man and lead a married life.

Almost all interpreters in explaining Asbāb al-nuzūl[5] of Sūrah al-Baqarah[6] Verse 229 (“The divorce [shall be lawful] only twice. Then you, [the husband] should either keep the wife on reasonable terms or release her with kindness… .”, translated by Tahereh Saffarzadeh) have stated that Pre-Islamic Arabs divorced and returned during the period of Iddah and did not have any boundaries regarding this. Sometimes, they annoyed women by divorcing them and then returning a hundred times, saying to her, “I would neither grant you divorce to release you nor would I provide you with shelter and live with you. I will divorce you and as soon as the end of the period of Iddah approached, I will return and continue doing this.” It was so until a woman brought a complaint to the Prophet (P.B.U.H) about this issue. Following the complaint, the above-said Verse was revealed and a revocable divorce was limited to two divorces. After a third divorce, it became forbidden for a husband to marry his wife unless she married another man and then they separated.

Two other unfavorable traditions also persisted among Pre-Islamic Arabs and in the location where the Quran was revealed. In these two traditions, the man parted from his wife or practically avoided being with her. One was named Eila’. It meant that the man took an oath as to refrain from having sex with his wife. He took the oath at the time of anger or with the intention of annoying her. He refrained from having sex because of the taken oath and keeping this oath sometimes persisted for a long time like a year or more. Although the woman was married to the man, no sign of matrimony could be seen and she parted eventually. The other tradition was called Zihar. The word derives from “zahr” which means “back”. It was called so because in the age of ignorance, whenever a man wanted to avoid being with his wife and make it forbidden for himself to have sexual intercourse with her, he would liken her to one of the women who were forbidden to be married. He said something like, “Your back is like my mother or my sister’s back.” Therefore, since she became like a mother or sister to him, making love would become forbidden.

Zihar was deemed to be a kind of divorce or physical separation, but in the meantime, the woman could not marry someone else. In fact, as a result of these two traditions, neither did the wife have a husband and enjoy a martial relationship nor was she free to remarry.

Also, as taken from the first verses of Surat an-Nisa and according to the interpreters of the Holy Quran, there was a custom among Pre-Islamic Arabs at the time of the revelation of Quran according to which if a man passed away while leaving wives behind, not only would they not inherit any of their husband’s property, but also they would become the property themselves for the heirs of the deceased. The son of the deceased could marry the women their father married (except their own mother). They could also make the women marry and receive the Mahr, or just prevent them from getting married. It was also possible that someone married a woman and then left her but prevented her from marrying someone else or took money from her in exchange for the prohibitions to be lifted. In another case, a man might have disliked a woman during their married life; he divorced her and during this process, took away the Mahr and all the gifts he gave her. This was a summary of the type of attitude adopted towards women and the way they were treated in an environment where Quran was revealed and it has somehow been reflected in the Quranic verses themselves.

Such views and behavior existed among other tribes and nations as well, from civilized to uncivilized. Quran was revealed in such a time, place and circumstances, and in addition to incorporating some theological and ethical principles, it explained some regulations in the field of social relationships which included issues concerning family, marriage, divorce and women.

Divorce in other Religions

Separation and divorce was and still is done more or less under different and sometimes similar rules in various religions and cultures. In Jewish religion, a man can part from his wife if he has disagreements with her. Only one simple and weak criticism or a small suspicion towards his wife allows him to end their married life. If a woman does not become pregnant after ten years, her husband can leave her without any responsibility.

In Christianity, Gospel of Matthew reads, “Those whom God pronounced husband and wife, no human should be able to separate, (in case a separation happens) the man does not have the right of choosing another wife, and the woman who has been left by her husband does not have the right to lead another married life.” (Gospel of Matthew 32-31-5) In the branch of Catholicism, divorce and separation is not possible in any way. In Protestantism, separation occurs only when the wife commits infidelity. In Hinduism, divorce and separation is not allowed with any excuses, because both husband and wife become one body. Therefore, after the husband’s death, she burns herself with her husband to reunite with him (This custom has now died out.)

Before Islam, divorce was quite simple among Arab idolaters. Whenever a man willed, he could leave his wife without bearing any humane or legal responsibility. He did not even assume any obligation of his family’s life expenses.

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References

[1] a religious law forming part of the Islamic tradition.

[2] In Islam, a Mahr is a mandatory payment, in the form of money or possessions paid by the groom, or by groom’s father, to the bride at the time of marriage, that legally becomes her property.

[3] Islamic jurisprudence.

[4] In Islam, Iddah or Iddah is the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man.

[5] Meaning occasions or circumstances of revelation, it refers to the historical context in which Muslims believe Quranic verses were revealed.

[6] The Cow or Sūrah al-Baqarah is the second and longest chapter (Surah) of the Qur’an.