Marriage and Divorce

From the book: Understanding the Qur’an: Themes and Style
By Muhammad Abdel Haleem

Islam is the religion of marriage and only allows divorce in order to create better marriages. The Qur’an encourages marriage in many ways and makes it the only avenue for satisfying the sexual instinct.[1] It urges society to bring about the marriages of unmarried men or women[2] and instructs unmarried people to remain chaste until God provides for them out of His bounty.[3] They become married and share in this blessing which figures prominently in Qur’anic discussions of God’s blessings to mankind:

Another of His signs is that He created spouses from among yourselves for you to live with in tranquillity: He ordained love and kindness between you. There truly are signs in this for those who reflect. - 30:21

It reminds men, ‘[Your wives] are [close] as garments to you, as you are to them’ (2:188), suggesting that marriage provides warmth, comfort and protection. It also strengthens human relationships by acquiring relatives through marriage (25:54) and provides a means of acquiring offspring.

‘ . . . it is God who has given you spouses from amongst yourselves and through them He has given you children and grandchildren and provided you with good things’(16:72). Such is the importance of marriage that it is part of the ultimate reward believers hope for: going to Paradise where both spouses will be joined together, along with the righteous ones among their parents and offspring (13:23; 52:20–21; 25:74).

In line with Qur’anic teachings the Prophet Muhammad, who is the model for all Muslims to follow, had a rich, successful married life and said marriage was part of the way of life he brought, and whoever shunned that way of life did not belong with him. Christ does not provide such a model of marriage for Christians, nor did he urge his followers to marry in a similar way. Whereas celibacy is meritorious for those who devote themselves to religious life in Christianity, the Qur’an denounces it as a human invention.[4]

Because Islam attaches such importance to marriage it makes it easy to enter into. There is no bureaucracy involved in getting married and the wedding ceremony is short and simple, requiring no more than a proposal and acceptance spoken in front of two witnesses, and payment of the dowry to the woman. There is no requirement for an official place or person or any specified time.

In common with the treatment of other themes, the Qur’an mainly talks about marriage in general terms, giving some recommendations as stated above. It is not a detailed text guiding people in the conduct of daily lives and goes into detail only in the following areas: (i) when it talks about what is forbidden, or situations that lead to forbidden things; (2) when it talks about people’s rights; and (3) when it replies to specific questions that have been asked.

Thus, the Qur’an lists all classes of people that one is not allowed to marry, then declares: ‘Other women are lawful to you . . . ’ (4:24). It lists individuals’ inheritance rights in great detail (4:11–13; 4:176) and the rights of women are protected – the right to the dowry, lodging and maintenance, and the legitimacy of offspring. The Qur’an sets out rights for the wife and then allows her to waive some, such as the dowry, willingly if she chooses (4:4, 24).

The general statements in the Qur’an are normally elaborated in the hadith of the Prophet. For instance, the Qur’an recommends that men should consider the importance of piety when choosing a wife (2:221) and the Prophet elaborates on this in the hadith. He explains that a woman may be sought for marriage for four reasons: her wealth, her beauty, her family or her piety, but the Prophet recommends that a man choose a woman of piety, otherwise he will end up empty-handed. This stresses the importance of starting families on solid foundations, so that the marriage can last.

According to the teachings of the Prophet, no one should be forced to marry anyone that they do not desire. It is the husband’s responsibility to pay the dowry and to provide for his wife and family. The way that both husband and wife should conduct themselves in marriage is set out in the Qur’an. Marital relationships should involve the qualities of affection, repose and mercy, and the example of the Prophet is the recommended norm. He says, ‘the best of you are those who are best to your families’. Consultations, which are enjoined on all Muslims in conducting their common affairs become important in marriage, and we find mutual acceptance and consultations occurring frequently, always in the reciprocal form: tar¯ad, tash¯awur (2:234; 65:6; 2:232). Another frequent term or expression is ma‘ruf, which means what is good and commendable. Indeed, this occurs four times in one page (2:232–236). Thus compulsion within marriage is prohibited (2: 231,232).

The marriage contract is considered to be a very strong bond, which should stop injustice or ill-treatment.[5] ‘The physical relationship is considered very important, and God commands the believer to partake in it, saying: ‘Seek what God has ordained for you’.[6] Accordingly, the Prophet considered this a meritorious act. When one of the companions said, ‘How can this be so?’ the Prophet explained, ‘If you did it with someone other than your wife, would you not be punished for it? Equally you will be rewarded for it when it is with your wife.’

The Prophet recommended that men should approach the physical relationship with proper affection and the right mood for both parties, saying, ‘Let none of you fall upon his wife like a donkey falls upon a she-donkey’. When women are menstruating, husbands should not have intercourse with them as it is painful and unclean (2:222). We know from hadith that there is no ban on anything other than full intercourse.

When the Muslims migrated from Mecca to Medina, the men found the women of Medina bashful and only willing to sleep with their husbands lying on their side. So the Muslim men asked the Prophet if there was anything wrong with other sexual positions. The answer came in the Qur’an, ‘Your women are your fields, so go into your fields whichever way you like, and send [something good] ahead for yourselves. Be mindful of God: remember that you will meet Him.’ (2:223). So even in this intimate situation, they are reminded that they should ‘send ahead something good’ for themselves. The good deed here is to make the marriage as God has intended, full of affection and mercy, and any misbehaviour in this intimate situation will be recorded and they will face the consequences of their bad or good acts on Judgement Day when they will meet God. The Prophet was asked if it was lawful for men to practise the only form of contraception that was available to them, coitus interruptus, and Muslim jurists have said that this should only be done if the wife consents to it.

Both husbands and wives are reminded that they should literally ‘guard their private parts’ from approaching others or being approached by other than the lawful person (33:35). Believers are described in the Qur’an as:

Those who pray: ‘Our Lord, give us joy in our spouses and offspring. Make us good examples to those who are aware of You’ 25:74

The Prophet advised that if a man sees a woman and feels any desire for her he should rush to his wife. The Prophet says that the best pastime for a husband is to play with his wife, or to train his horse, and the best money spent is money spent on your wife. Placing some food in the mouth of your wife is a meritorious act. The husband who is responsible for maintaining his family should not squander his money or even give it away in charity to the disadvantage of the family. When a companion of the Prophet asked him whether he should give away all his wealth to charity, the Prophet said no. The man said, ‘Can I give half?’ The Prophet said no. ‘A third?’ and even that was too much. It is better for you to leave your family well provided for if you die, rather than leave them to beg from people. He also said, ‘Only a good man treats women well, and only a mean man treats them badly’.

Islam protects married life in many ways. It enjoins chastity on everybody and stipulates a deterrent penalty for violation and defamation of character. No-one should go into other people’s houses without the owner’s permission; and men and women who are not married and are outside the family circle should not mix freely within houses when they are alone together (33:27–31, 58–61).

Polygamy is permitted in the Qur’an. Unlike marriage and divorce, it is only mentioned once and only incidentally rather than having a separate section or verse devoted to it. It is only permitted with the proviso that if you feel you may not be equitable to co-wives then you may only marry one (4:3). So it is neither obligatory, nor highly recommended, merely allowed in certain circumstances.

Muslim scholars have written in justification of this institution.[7] They argue that in some marriages it can be advisable if, for instance, the first wife is unwell or has lost interest in marital relations, or cannot bear children. If the husband is barred from marrying another wife, he may find no alternative to divorcing the present wife. In such circumstances, if polygamy was not allowed, men could be driven towards having an illicit relationship. In situations where women outnumber men, polygamy also provides a solution in a religious morality that does not allow sexual relationships outside marriage.

Women cannot be forced into polygamy, as the second wife enters into the marriage freely and the first wife, or any wife, could stipulate in the marriage contract that the husband may not enter into another marriage without her consent. This is practised by some women in Muslim countries today. Polygamy can actually increase the number of marriages in society and, properly entered into, can protect marriage and lessen the need for divorce.

Difficulties in Marriage

The Qur’an instructs men to live with their wives bi’l-ma‘ruf, with kindness, according to the accepted norms and advises them that if they dislike their wives, they should remember that they may dislike something in which God has placed much goodness (4:19). The Prophet said, ‘A good believer should not loathe his wife. If he dislikes one characteristic of her – there are other characteristics which will be pleasing.’ In difficult situations society is urged to care for families, and send an arbiter from the husband’s side and one from the wife’s side to try to bring about reconciliation (4:35). But serious situations may require firmness.We will discuss this now before we discuss the subject of divorce.

‘ . . . and you may hit them.’

In discussing the position of women in Islam, an important Qur’anic verse, 4:34, is frequently referred to, often in a sensational way, as it is seen to give men the right to beat women. However, a close examination of the verse in question shows that it has been subjected, both in the popular understanding and even by some exegetes, to selective and subjective interpretation, decontextualisation, exaggeration and blatant disregard for the Prophet’s own interpretation of certain elements of this verse. English translations of the Qur’an have contributed to the popular picture of the treatment of women in Islam, and in some translations, most of the words of the passage have been misunderstood and mistranslated. Misinterpretation is usually based on male chauvinism, copying the views of others without close examination of the passage itself, age-old prejudice and media sensationalism.

Our understanding of the verse will be based on three things:

1. Linguistic analysis of the passage itself. The Qur’an is the supreme authority in Islam, and since this is a text from the Qur’an it has to be understood on the basis of accepted linguistic criteria; an understanding reached by this method needs no apology or further justification.

2. The Prophet Muhammad’s own interpretation of key elements of this verse. The hadith is the second authority in Islam. The first role of the Prophet was to deliver the Qur’an and his second was to explain it. It would be presumptuous of anyone to claim to know the meaning of the Qur’an better than the Prophet.

3. What the Qur’an itself says in other verses about difficulties in the marital relationship and how to deal with them and what the Prophet said about how wives should be treated.

Opinions of Muslims or non-Muslims, scholars or laymen cannot be accepted as having higher authority than the Qur’an and hadith in determining the meaning of this verse on marital relations or relations between men and women in Islam.

Let us start by examining one popular translation of the passage:

Men have authority over women because God has made the one superior to the other, and because they spend their wealth to maintain them. Good women are obedient. They guard their unseen parts because God has guarded them. As for those from whom you fear disobedience, admonish them and send them to beds apart and beat them. Then, if they obey you, take no further action against them. God is high, supreme. If you fear a breach between a man and his wife, appoint an arbiter from his people and another from hers. If they wish to be reconciled, God will bring them together again. God is wise and all-knowing. 4:34–5 DAWOOD

In the first verse, I have listed about a dozen words which have been misinterpreted or give rise to misunderstanding in the existing translations.

Let us consider some terms in this verse. First we have ‘men’ and ‘women’. They mean ‘husbands’ and ‘wives’, as the passage goes on to mention intimate relations between couples and arbitration that may lead to divorce. Why does the verse not say ‘husbands and wives’? Because the word zawj (which in modern Arabic means ‘husband’) applies in classical Arabic to both sexes. It has no feminine; it is like the English word ‘spouse’, and it would not have made sense to say ‘spouses are given more than spouses’. This can also be seen in other parts of the Qur’an where husbands and wives are mentioned; the same terminology of ‘men’ and ‘women’ is used. The verse is thus talking about husbands and wives, not men and women in general. This distinction is important because those who misunderstand the verse take it to mean that God has given ‘men’ in general ‘more than women’ in general, applying that very extensively and interpolating what they think men are given more of e.g. strength, intelligence, wisdom; even having a beard is listed by some! They then go on from this to say that women cannot be judges, heads of state or in any position of leadership over men. Secondly, we come to the keyword ’qaww¯am¯una ‘al¯a. In English translations you find such renderings as ‘have authority over them’, ‘in charge of the affairs of’ and ‘protectors and maintainers of’. In Arabic lexicography, the expression q¯ama ‘al¯a means merely ‘maintain her and attend to her affairs’.[8] The hadith also elucidates the meaning of qaw¯ama at the time of the Prophet. A companion of the Prophet explains that he chose to marry an older, experienced woman because he had young orphaned sisters and he wanted a woman taq¯umu ‘alayhinna and to gather them and comb their hair’.[9] However, judging by the rest of the verse, it appears that there is another role, one which makes the husband the chairman of the family, so to speak:

Every one of you is a shepherd and will be held responsible for his charges: the man is a shepherd in his house and is responsible for his charges; the woman is a shepherd and she is responsible for her charges; the servant is a shepherd over his master’s property and he will be responsible for his charges. (Hadith Bukhari)

Good Group Management in Islam

Islam attaches great importance to people being together in a group with a leader. Praying together, led by an imam, increases the reward for each individual twenty-seven times. The Prophet had a distinct desire for good management, and said: ‘If there are three of you on a journey, let them appoint one of them as am¯ir (the one in charge).’ And when he sent a group of people away for any purpose he would see that they had an am¯ir, though not to bully them, because he said: ‘The sayyid (chief ) of a group of people is their servant.’[10]

Similarly, he advised that the pace of a travelling company should be set to suit the weakest among them, the im¯am in prayer should set his pace to suit the old and the mothers who need to attend to their babies.

So in the family, which is the fundamental unit of society, there must be a head or a chairman. In the Qur’an, this role is assigned to the husband, who has the responsibility to maintain the family, whereas the wife is not obliged to maintain the family or even herself.

The qaw¯ama or stewardship of the family that is assigned to the husband does not give him open or unlimited authority. It is limited by the Qur’anic principle of ma‘ruf and works according to the principle of sh¯ura – qaw¯ama is part of mu‘¯ashara (living together). Husbands are ordered:

Live with them in accordance with what is fair and kind: 4:19

Al-ma‘ruf is taken for granted in the marriage contract. In the Qur’an, by virtue of the marriage contract, husbands make a strong pledge to their wives (4:21), understood by exegetes to be ‘living together according to what is honourable and commendable’.

As for the principle of sh¯ura, the Qur’an describes the believers as those whose affairs ‘ . . . are conducted by consultation’ (4:38). This is a general and permanent description that was revealed in Mecca before political life was started in Medina. Naturally, it applies to the most basic social unit, the family. It has been seen above that such expressions of reciprocity as mu’¯ashara, tash¯awur (mutual consultation), tar¯adi (mutual acceptance) are frequent in Qur’anic discussions of family matters.[11]

The role of qaw¯ama, which involves the husband’s responsibility to maintain and look after his wife, is different from merely ‘ruling over’ the wife as made explicit in the Book of Genesis. There, as a punishment for making Adam eat the fruit, Eve was told that her pains would be multiplied in conception and ‘in sorrow shall thou bring forth children, and thy desire shall be to thy husband and he shall rule over thee’.

A third concept that has been misinterpreted is the Arabic expression bi ma faddal Allah . . . which explains the basis of qaw¯ama. There is one translator (Yusuf Ali) who says: ‘Because God has given the one more [strength] than the other . . . ’. Others say: ‘Because God has preferred in bounty one of them over another . . . ’ (Arberry); ‘Because God made the one of them to excel the other . . . ’ (Pickthall) and ‘Because God has made the one superior to the other . . . ’ (Dawood).

The root of the concept of fadl in Arabic means ‘to give more’. Lexically fadl is ziyada i.e. more. That is why some exegetes understood it to be the extra in the share of inheritance, thinking that this is corroborated by 4:32, while others thought it was strength, intelligence, and so on, or the beard. However, this is all based on a hasty, incorrect reading of the text which assumes that ma (in ma faddala) has the same grammatical function in 4:32 and 4:34. It does not. In the former, it is a relative pronoun meaning ‘that which God has given more of to some than to others’. As such it requires an additional preposition and a pronoun bihi. In 4:34, on the other hand, ma is masdariyya. It merely turns the verb into a verbal noun (bi tafdil Allah – ‘by the appointment of God’). Thus in 4:32 men have something extra given to them (the share of the inheritance), while in 4:34 there is only the assignment of the role of qaw¯ama – assignment of the[11] chairmanship of the family to the husband. The verse thus means: ‘Men maintain and attend to their wives because God has assigned this extra role to them and because of what they spend of their money on the family.’ Qur’an 2:228 mentions the rights and obligations of wives: ‘They have rights similar to the rights men have over them according to what is ma‘ruf, but men have a daraja (degree) over them’. Like the above ‘more/extra’, this word daraja (degree) has been interpreted by some as referring to the extra share of the inheritance. However, since within the marriage of two living people the question of inheritance does not arise, the ‘degree’ clearly refers to the role of qaw¯ama circumscribed in the way described above.

It is interesting to note that the Qur’an does not say, ‘Because God has given men more than women . . . ’ but ‘God has given some more than others’. This expression occurs a number of times to refer to the nature of things, namely that in this world some have been given more wealth (16:71) and some more of other things. In our verse, for husbands this ‘more than others’ is the stewardship of the family. Each will be judged according to how they conducted themselves with what they have been given (6:165).

Having established for the husband the role of qaw¯ama, or maintenance and stewardship of the family, the Qur’an goes on to divide wives into two classes: the good ones, who are described as salihat (righteous) and the bad ones, who are not. The salihat does not simply mean good as wives: salah is a general term to describe men or women who are righteous in observing the tenets of religion. These good wives are described in two ways, as: (i) qanitat, which translators render as ‘obedient’ – this is misleading because it gives the impression that they are obedient to their husbands, whereas the term is used in the Qur’an solely as being ‘devotedly obedient to God’ (33:35; 39:9); (ii) hafizat, a term used in the Qur’an for women (hafizun for men) who guard their private parts, so equivalent to ‘chaste’ (23:5; 33:34). This includes guarding their private parts from approaching or being approached by anyone other than the spouse.

Li’l-ghayb means that the wife is chaste ‘in his absence’ (when he is away from her). She is expected to guard her chastity because ‘God has ordered these things to be guarded.’ In the Qur’an, God’s order in this respect is for men and women alike (24:30–31). Thus, being obedient to God and being chaste are the only two qualities by which a good wife is described, and we can see that they are not an excessive requirement. They are required of any Muslim of either sex.

On the other side comes the other class of women, whose ‘nush¯uz’ (translated mainly as ‘rebellion’ though Dawood gives ‘disobedience’)[12] is feared by the husband. It is with these that the husbands are instructed to go through three stages. Here again, we have a misinterpretation of the concept of nush¯uz and misinterpretation and mistranslation of the three stages recommended in dealing with a wife in nush¯uz. The proper meaning should be derived on the basis of the three criteria listed above, namely: linguistic analysis of the text of the Qur’an; what the Prophet said and did, and what the Qur’an says elsewhere about dealing with wives in difficult situations. Let us briefly consider nush¯uz in the light of these considerations:

1. It is clear that the contrast in this passage between the first and second type of women cannot be disregarded. If we say now, ‘Good students attend regularly and submit their essays on time; as for others, they may be warned and barred from entering the exam’, the others must be understood in contrast with those who are said to attend and submit essays. Similarly, the second class of wives here is the opposite of those who are devoutly obedient to God and guarding their private parts, which God has ordered to be guarded. So what we have here is a woman whose husband fears her unfaithfulness and disregard for the commands of God.

2. This linguistic understanding is corroborated by the interpretation of the Prophet in his Farewell Speech, heard by thousands of people: ‘You have rights over your wives and they have rights over you: you have the right that they should not defile your bed, and that they should not commit flagrant lewdness.[13] If they do, God allows you to put them in a separate room, and to beat them, but not with severity.’ ‘To put them in a separate room’ is a mistranslation by Guillaume[14] as we shall see later, it should read: ‘to refrain from speaking to them in the bedroom’. The Prophet did not say here that husbands have the right of absolute obedience or to discipline for any kind of offence. He defined the exact circumstances in which the sanctions apply. We should also point out here that the different stages of treatment are given as a ‘permission’ not an ‘order’, as the Prophet made clear in his speech: adhina lakum ‘God has allowed you’, so husbands may choose not to apply the sanction.

3. In at least six suras the Qur’an mentions difficulties in marriage, divorce and even the aftermath of divorce. Even when husbands dislike their wives they are instructed:

Live with them in accordance with what is fair and kind: if you dislike them, it may well be that you dislike something in which God has put much good. 4:19

Even if they have experienced hostility from their wives and children, men are warned merely to beware of it, but advised that to pardon, overlook and forgive is better because God is forgiving and merciful (64:14). Even in divorce proceedings, with all the attendant bitterness, husbands are forbidden to harass their wives or make their lives difficult (65:1, 6; 4:19). It should be done ‘with kindness’ (2:229), bi’l-ma‘ruf (65:2). However there is a significant exception from this magnanimity (4:19; 65:1 also 4:15, 25): ‘unless they commit a flagrant indecency’(4:19; 65:1). This again corroborates our understanding that the nush¯uz in our present verse means a serious offence of infidelity.[14a]

In dealing with a wife in nush¯uz, the three stages that are permitted are:

1. ‘izuhunna which translators render as ‘admonish them’ but this is not correct. Wa’z in Arabic is ‘reminding of God and His teachings’. This meaning of the word is used in the Qur’an and this ‘reminding’ is the core of the lexical meaning in Arabic, so that the person who is reminded may take heed of the message.

2. Wahjuruhunna fi’l- mad¯aji’, which translators render variously as: ‘Send them to beds apart . . . ’ (Dawood); ‘Banish them to beds apart . . . ’ (Pickthall); ‘Banish them to their couches . . . ’ (Arberry); ‘Refuse to share their beds . . . ’ (Yusuf Al¯i); ‘Leave them alone in bed . . . ’ (Asad). Those who say ‘send them’ or ‘banish them’ have a basic misunderstanding of the verb. Even if it is understood as ‘leaving’, it is men who are asked to leave, not the women. It is mysterious how translators understood the verb to mean ‘sending’ or ‘banishing’ women. Misunderstanding also arises from the term hajr, which people seem to relate to hijra (emigration) but hajr also means a verbal boycott. As the Prophet said, ‘It is not lawful for a Muslim to have hajr with his brother for more than three days. They meet each other; one turns his face one way, the second to the other way. The best of them is the one who first greets the other.’ These are people who meet and the term hajr still applies to them because the one does not speak to the other, and this is what it implies in this verse. This sulking or boycott is suggested only in bed (fi’l-mad¯aj‘), not in front of the children or others. It is remarkable that a husband who fears that his wife may have been unfaithful in his own house and in his absence should be blamed by some for boycotting her for a short while in bed. It must also be remembered that it is the duty of any Muslim, man or woman, if they see someone misbehaving, to go through the stage of wa’z. (verbal reminding) and if this does not work, to show disapproval by boycotting them. It is an obligation on every Muslim, in accordance with the Prophet’s hadith, ‘Whoever sees a munkar (something objected to by religion) should change it with his hand and if he cannot, then with his tongue, and if he cannot, then with his heart, and this is the least degree of faith.’ So the husband here is like any Muslim.

3. The third stage is ‘beating’ – wadrib¯uhunna. This is done only if the first two stages do not work. The husband has no right to jump from one stage to another, or to put them in the wrong order, as al-Shafi‘i said: ‘Start with what God started with.’ This applies to any Qur’anic injunction which lists options in this way.

It should be remembered that the Qur’an mentions ‘beating’ only once, even though it talks about serious difficulties in marriage in several chapters. It should also be remembered that the Prophet, who is the model for all Muslims, never hit any of his wives.[15] He also said: [16]

The best of you are those that are best in treating their wives.

It is only a good man who treats women well, and only a mean man treats them badly.

Is any one of you who beats his wife not ashamed to beat her and then sleep with her?

It may well be asked, ‘How could the Prophet (who was the most obedient person to the instructions of the Qur’an) condemn beating so much when the Qur’an said ‘and beat them’ unless he understood beating here to be only for the serious offence he himself mentioned in the Farewell Speech?’

All Muslim exegetes agree that the husband is not allowed to beat the wife severely, since the Prophet said ‘without severity’. In fact, most say that it has to be so light as to be with something like a tooth stick / toothbrush. The basis for this appears to be in the story that the Prophet was once angered by a servant girl whom he sent on an errand, but she was inordinately late. When she returned, he raised his tooth stick and said, ‘If I did not fear God I would hit you with this.’

The word ‘beat’ causes difficulty. In my efforts to find a suitable word, I looked at dictionaries and found the English language rich in expressions like ‘hit’, ‘strike’, ‘slap’, ‘beat’, ‘bash’, ‘wallop’, ‘belt’, ‘beat up’, ‘thump’, and now ‘batter’, in ‘wife-battering’. Compared to English, Arabic has only a very limited range indeed, including the word daraba. This may be why translators opt for ‘beat’; but you don’t ‘beat’ someone with a tooth stick in English. Moreover, a hadith, said by some to have been the cause of this verse, mentions a husband who slapped the face of his wife once. Thus ‘beat’ is not a suitable translation; ‘slap’ is nearer to the mark. The authority of the husband to slap his wife is circumscribed by a number of things: by the Prophet’s own practice – he is the model for all Muslims to live their lives by – and by the ending of the Qur’anic verse, ‘God is high and great’.

Characteristically, this reminds men that if they misbehave God is watching over them and will deal with them. It is relevant here to mention the story of how the Prophet once saw Ibn Mas‘¯ud with his hand raised, about to hit his slave. The Prophet cried out, ‘God has more power over you than you have over him’, so he dropped his hand and set the slave free. In the theme under discussion it is important to observe that four successive verses end in the following ways: ‘God has full knowledge of everything . . . ’ (4:32), ‘God is witness to everything . . . ’ (4:33), ‘God is most high and great . . .’ (4:34) and ‘God is all knowing, all aware. . . ’ (4:35).

There are still more circumscriptions round the permission to ‘hit’. Many Muslim scholars are also of the opinion that hitting is only permissible if the husband is sure that it will bring the right results, otherwise it should be avoided.

The verse ends by saying, ‘If they obey you, you have no way against them’ – obey at any stage – and ‘obey’, coming in its place here, means ‘refrain’ from the act which caused this problem, as in the Qur’anic verse: ‘listen and obey’ (64:16) (that is, obey what you have heard in that context). The Prophet himself, in his Farewell Speech, explained the Qur’anic phrase fa in ata‘nakum (if they obey you) by using a different word, fa in intahayna (if they desist), in its place. Thus ‘obedience’ here does not mean being submissive to the husband, but refraining from a serious offence. To refrain in this way is an obligation on every believing person. In any case, any obedience is restricted, in Islam, by the Prophet’s statements: ‘There is no obedience for any creature in disobedience to the Creator’; and ‘Obedience is only in ma’r¯uf, which means accepted, decent and commendable norms. As already pointed out, this expression, bi’l-ma’r¯uf, occurs more frequently in situations of difficulties between married couples and in the treatment of wives than anywhere else in the Qur’an. The ‘obedience’ is not carte blanche and Islamic marriage does not include the vow to ‘love, cherish and obey’.

Following this verse we have 4:35 addressed to the relatives and all those surrounding the family, including legal authorities:

If you [believers] fear that a couple may break up, appoint one arbiter from his family and one from hers. Then, if the couple want to put things right, God will bring about a reconciliation between them: He is all knowing, all aware.

In Islamic society, volunteering to bring reconciliation is a meritorious act (4:114). This is on an individual level, but the state is also under an obligation to create a body responsible for implementing Qur’anic teachings. An attitude of ‘It is none of my business’ runs counter to the teachings of the Qur’an and the Prophet. Even at the stage of fearing a breach, the Qur’an states: ‘if the couple wants to put things right, God will bring about a reconciliation’ (4:35).

If, on the other hand, the arbiters find that it is not possible to reconcile a couple, then such a family is not worth preserving. Indeed God promises couples who part amicably that he will give each something more suitable, and ends the verse with: ‘He is infinite in plenty, and all wise’ (4:130). It should be observed that with the two types of wives mentioned above, the husband is not mentioned at all in relation to a righteous wife; he only comes in when the situation of a serious offence is under discussion. In this situation, Muslim authors ask,[17] ‘If the Qur’anic teaching in this matter is not fair and sensible, then what should be the alternatives?’ Either the husband has to allow himself to become a cuckold or he has to take the wife to court, which would affect the whole family and add to the bitterness, or divorce her and thus break up the family completely. Surely it is better to remind the wife of her duty, or sulk for a while, or even strike her lightly and then bring in arbiters who could, if all attempts at reconciliation fail, rule in favour of a divorce. According to the Qur’an, it is not fair that a husband who maintains and pays for everything and is under Qur’anic instructions to live with his wife in an honourable, kind, commendable way should also be asked to put up with acts that undermine the whole family.

As mentioned earlier, verse 4:34 has been subjected to misinterpretation, decontextualisation and sensational exaggeration. For Muslims, all the Qur’an is a revelation from God and husbands should obey God in this verse and in all other instructions given in the Qur’an – not misinterpret this verse and ignore all other teachings of the Qur’an and hadith on the subject.

As explained earlier, the Qur’an has set the proper norms for marital relationships: that the couple may repose in each other in an atmosphere of love and mercy (30:21).

Divorce by the Husband

Divorce has been said by the Prophet to be the most disliked lawful thing in the sight of God. However, it is available and easily carried out by the husband pronouncing it. There is a retarding mechanism of a menstrual cycle, but divorce can be effected after this. Then there is a further waiting period of three months or until childbirth for pregnant women, within which the married couple could reconsider and the wife remains in the marital home. As the Qur’an says, you do not know, ‘God may bring a change of situation’ (i.e. there could be a change of hearts). Within this waiting period the husband can revoke the divorce he pronounced by word or deed (65:1–7). After the waiting period, the divorce becomes final. But if the couple reconciles and then later on divorce is resorted to again, the same procedure as described above will pertain. If divorce is pronounced for a third time, it has been proved beyond doubt that this unhappy marital situation should not continue any longer. The husband may not marry his divorced wife again unless she happens to marry someone else in between. If that second husband were to die or to divorce her, it becomes possible for the first husband to enter into marriage with her again (2:229–30).

So there is freedom of action within limits, and this is also the Qur’anic position during marital difficulties. Thus we find: ‘There is no blame on you for doing such and such’, and on the other hand, ‘these are the bounds which you must not cross’. In two pages, for example, we have the statement ‘There is no blame on you’ repeated seven times but also there are bounds mentioned (2:229–240, 65). This gives freedom of action to deal with the numerous situations that can arise at different times and under different cultures.

The flexibility of Islamic law in this respect is remarkable. In fact, whenever divorce is mentioned in the Qur’an, revocation is recommended, and whenever revocation is recommended we find the statement ‘provided they feel that they can keep within the bounds set by God’ (2:229, 231). This is conditional upon no harm being caused (2:229, 231). A continuation of marriage must involve the original objective of affection and mercy, establishing rights and observing the limits set by God. If this is not possible, then it is better for husband and wife to leave each other, and if they separate God will give to each out of his boundless resources something that would be better for them (4:130). This is stated in the Arabic in a conditional sentence which is understood in the Qur’an to be a promise from God, and He does not break his promises. Divorce, thus, will be effected in order to start solid marriages, and to strengthen the marriage institution itself. After divorce the original state obtains, that marriage becomes highly recommended for any Muslim, and becomes an obligation for those who cannot live without exercising their sexual drives.

During marriage difficulties the Qur’an keeps repeating ‘if you believe in God and the Day of Judgement’ or ‘Remember that God is watching over you’, ‘Remember that he knows better than you’, and ‘Be mindful of God and know that He has full knowledge of everything’ (2:230–242; 4:32–36; 65). In the middle of divorce negotiations and financial settlements, etc., when people can be bitter, the Qur’an interrupts the discussions to state, in one verse, ‘Keep up your daily prayer and stand before God in obedience’ before it resumes the discussion again (2:238).

Divorce, then, carries no stigma whatsoever in Islam, nor does any attach to divorcees who wish to remarry and resume their married sex life. The Qur’an considers that to prevent them remarrying would drive them to doing what is forbidden, and as Islam wishes to build a moral society it provides the institution that would help towards achieving that end. Thus, the Qur’an recognises that those who have been used to married life are particularly likely to need it more and forbids women’s families from interfering and preventing divorced women from remarrying their previous husband.

. . . do not prevent them from remarrying their husbands if they both agree to do so in a fair manner. Let those of you who believe in God and the Last Day take this to heart: that is more wholesome and purer for you. God knows and you do not. 2:232

When a woman or a man becomes divorced, the same original instructions to get married and for society to bring about the marriage of unmarried members obtain.

In this respect there is an obvious difference between the Qur’an and the Gospel. In Mark 10, vv. 11 and 12, Christ says, ‘Whoever divorces his wife and marries other than her, he will be committing adultery, and if a woman divorces her husband and marries someone else she will have committed adultery’. In Matthew 5:32: ‘But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become an adulteress, and anyone who marries the divorced woman commits adultery’. See also in Luke 18:16. In spite of these clear statements, since 1983 the Anglican Church has allowed divorcees to be remarried in church, influenced by the result of changes in English divorce laws in the late 1960s.

Divorce by Wives

So far we have discussed husbands’ rights to divorce. The husband is responsible for maintenance during marriage and for a period after the marriage. He is also responsible for his children’s maintenance. This in itself places some restrictions on his exercising his right to divorce lightly, without going to court. The delayed dowry payment, which can be a considerable sum, falls due on divorce, and can act as a deterrent to hasty proclamations of divorce.

Wives can also instigate divorce. In cases of cruelty, abandonment or harm, or if a husband fails to meet his obligations of maintenance, a divorce can be obtained through the courts.

Wives can also obtain divorce by mutual consent (2:229–31) without having to go to court. If a wife simply wants to leave the husband and he does not consent, she still can obtain khul‘, divorce by applying to a court. Traditionally, in Islamic Shari’a the majority of scholars have thought the consent of the husband to be an essential condition without which the khul‘ does not obtain but, according to Egypt Law no. 1/2001, based still on the Shari’a, a woman can obtain khul‘ whether or not the husband consents, provided the wife forgoes all her legal financial rights and restores the dowry (sadaq) the husband has paid her.

In any case, a woman can stipulate, in the initial marriage contract, her right to divorce her husband at any time without his consent. This is recognised in Islamic law and practised in certain parts of the Muslim world.

When discussing family life, marriage and divorce, the Qur’an does not simply produce regulations couched in dry legal language. Legal instructions are couched in religious, emotional language, employing a powerful use of linguistic techniques of persuasion and dissuasion such as those already mentioned: ‘If you believe in God and know that you are going to meet Him’ or ‘Remember that God is watching over everything and He has full knowledge and full power over you. That is better and purer for you’. ‘He knows and you do not know’. Marriage and divorce in Islam are protected by law, by society and by the strong appeal to the belief in God and the hereafter.

NOTES

1 It sets strict penalties for infringing this code.

2 Qur’an 24:32.

3 24:33.

4 57:27, Musnad Ah. mad 5:162.

5 4:21.

6 2:187.

7 A. M. al-‘Aqqad: Haqa'iq al-Islam wa-abatil khusumih, (Cairo, 1969) pp. 147–52.

8 Al-Fayruzabadi, al-Qamus al-muhit.

9 Bukhari, Sahih, Chapter on Sales, Hadith of Jabir b. ‘Abdallah.

10 Al-‘Ajluni, I., Kashf al-khafa', (Cairo, n.d.) p. 562.

11 E.g. 2:233.

12 The lexical meaning is ‘rising above’, so a wife in this situation puts herself above, not just equal to, her husband.

13 The translator is too polite, using the expression ‘they should not behave with open unseemliness’; it should read: ‘They should not commit flagrant lewdness.’

14 The Life of Muhammad, by Ibn Ishaq, tr. Guillaume, (OUP, 1974) p. 651.

14a Nushuz on the part of the husband is referred to in Qur’an 4:128–135.

15 Even in cases of disagreement (33:29–31; 66:6).

16 In al-‘Ajluni, Kashf al-khafa', op.cit., pp. 187–91; A. M. ‘Aqqad op.cit., pp. 155–7; S. Qut. b, op.cit., commenting on Qur’an 4:34.

17 Ibid.








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