Divorce Part 5

Our worthy reader may remember that in the second part of this section on divorce, we said that our worries about divorce came from two directions, we said that our worries about divorce came from two directions. One concerned the unmanly divorces arising from the faithless and callousness of a section of men. The other is the unmanly refraining from divorcing a wife by those men with whom there is no hope reconciliation. They restrain themselves from divorcing only so as to persecute the woman, and not so as to take advantage of such time to reach a compromise.

In the two previous chapters we have discussed the first category. We said that Islam welcomes all means that may serve as an obstacle to unmanly divorce, and it has itself endeavoured by special contrivances to see that divorces of this description do not place. Islam is only against the use of force for the continuation of the union of marriage.

From what has been said it is evident that a family is a living unit, and that Islam endeavours that this living unit should continue to live. Nevertheless, when the living entity expires, Islam regards it with regret ad issues the permission to bury it; but Islam is not ready to mummify its dead body with the balm of law, and does not approve of the idea that with this mummified body there should be a display of feigned liveliness.

The reason is now intelligible why a husband has the right of divorce. The association of married life rests upon the pillar of spontaneous attachment and has a unique mechanism. Creation has given the key to strengthening it, and also the key to bringing it down and shattering it, into the hand of man. Under the command of creation, every woman and man has a certain disposition and certain characteristics, when compared with each other, which cannot be exchanged and are not the same. This disposition and these distinctive characteristics are by themselves the root-cause of many things and one of these things is the right of divorce.

In other words the source if this situation is the particular and distinctive role of both man and woman in love and in their search for a mate, and nothing else.

The right of divorce arises from the particular role of the man in the matter of love, and is not based upon his ownership:

From here you can have some idea of the worth of the propaganda of elements that are against Islam. These elements sometimes say that the cause of the giving of the right of divorce to men in Islam is that it does not acknowledge women as having the capacity to will, to desire or to want. It considers them in the category of material things and not persons. Islam considers man to be the owner of woman, and naturally, according to the law “an-nas musallatuna ‘ala amwalahum” (people have mastery over their property) it gives them the right to discard his property at any time he may wish to.

it is clear that the logic of Islam is not based upon man’s ownership and woman’s status of being owned. This much is evident, that the rationale of Islam is too deep and too far above the level of comprehension of these writers. Under the guiding light of revelation, Islam has realized the secrets of the foundation and structure of the family and family-life to which learning and science, after a lapse of fourteen centuries, is trying to approach.

Divorce is a release in the same way as the inherent nature of marriage is dominance:

Sometimes these people ask: “Why does divorce take the form of a release, an emancipation? Surely it should have a judicial form.” To these people it should be said: “Divorce is a release in the same way that marriage is a state of dominance. If you can possibly do so, change the natural law of seeking a mate in its absoluteness with regard to the male and the female, remove the natural state of marriage from the condition of dominance; if you can make the role of the male and female sex in all human beings and animals identical in their relations, and change the law of nature. Then you will be able to rid divorce of its aspect of release and emancipation.”

One of these people writes, “Generally, the Shi’ite jurisconsults count the contract of marriage as an irrevocable contract, but I wish to say that the contract of marriage, according to Islamic jurisprudence and the Civil Law of Iran is irrevocable only in relation to woman. As far as man is concerned it is revocable contract, for he can any time make the above contract ineffective and breaks the marriage pact.”

Afterwards he writes, “The contract of marriage is revocable as far as man is concerned, jut as far as woman is concerned it is irrevocable. This is an injustice of the law that has made woman a captive of man. Whenever I read the wordings of sec. 133 of the Civil Law of the Royal Land of Iran (law of the right of man to divorce), I feel ashamed in front of Iranian women, in front of these schools and colleges and this age of atoms, satellites and democracy.”

This gentleman, first of all, could not understand a very simple thing. That is that divorce is different from the dissolution of marriage. When it is said that the contract of marriage in its essence is irrevocable, that means neither the husband and wife (with the exception of special cases) has the right to dissolve it. If a marriage is dissolved, all its consequences are nullified and it be comes a nullity. When in special circumstances a marriage is dissolved, all its consequences, including dower are eliminated. The woman then has no right to demand it. Likewise, there is no question of maintenance for the period of ‘iddah. In contrast to this is the case of divorce, in which the relation of conjugality is broken up, but the consequences of the marriage contract are not absolutely eliminated. If a man marries a woman and agrees to a dower of five hundred thousand tumans and after one day’s married life wants to divorce that wife, he must pay the whole amount of the dower and, over and above that, maintenance for the period of ‘iddah. If a man, after the marriage contract, but before the consummation of marriage, divorces his wife, he must pay half the amount of the dower, and, because a woman thus divorced is not bound by ‘iddah, maintenance for that period is out of question. So it is clear that divorce is not able to nullify all the consequences of the marriage contract; but in the case where the marriage is dissolved, the woman has no right to claim the dower. It is thus evident that divorce is different from dissolution. The right of divorce being with the husband does not make marriage incapable of being an irrevocable contract. Islam has acknowledged two things: dissolution and divorce. The right of dissolution obtains in such cases where there may he some defect in the man or in the woman. This right is given to the man and also to the woman as opposed to the right of divorce. The occasion for divorce is on the death of family life, and this right exclusively belongs to the husband.

The fact that Islam has made a distinction between the category of dissolution and the category of divorce and has laid down different regulations for each of them, shows that the fact that the power of divorce has been given to man does not arise from the intention of Islam to favour man with a privilege.

To the above-mentioned gentleman it should be said that, so that they need not feel ashamed in front of the schools, colleges and satellites, it would be a good idea for them to take the trouble of receiving a little education and learning something for once. They may then be able to differentiate between dissolution and divorce, and they may also become acquainted with the deep and subtle philosophy of Islam concerning society and family life. In this way, they would not feel ashamed in front of schools and colleges, but rather they would be able to pass them by holding up their heads. However, we are sorry to say that ignorance is a totally incurable disease.

Penalty for divorce:

In some of the world’s legal systems they used to impose a penalty for the prevention of divorce. I do not know whether there exists any such law as this in the world at present or not. Nevertheless, records show that in the Holy Roman Empire penalties were imposed on husbands who divorced their wives for no good reason.

Obviously this is another manner of resorting to force but it is not effective.

Wife having the right of divorce as an entrusted right:

At this juncture it is necessary to mention one thing. Up to this time all our discussion has been about the fact that divorce is a natural right peculiar to man. Nevertheless, a man can give his wife the right of divorce as an absolute attorney, or in special circumstances on his own behalf. This is something else which according to Islamic jurisprudence is, acceptable, and the Civil Law of Iran has also explicitly mentioned it. By the way, so that the man may not waive his appointing of an attorney, and so that he may not deny the ceding to the woman of this right, that is, so as to give it the form of an irrevocable attorneyship, an attorneyship of this description is usually concluded by the contrivance of making it a binding condition in the marriage contract. According to this condition, the woman may unconditionally, or in special circumstances that have been specified beforehand, divorce. In this way, from the olden times, those women who had a cause to be anxious about some aspects of their future husbands, kept the right of divorce, secure in their hands in the form of a binding conditions contained in the marriage contract, and made use of it when absolutely necessary.

Thus, in the view of Islamic Law, a woman has no inherent natural right of divorce, but as a stipulatory right, namely in the form of a condition contained in the marriage contract, she may have that right.

Clause 1119 of the Civil Law lays down: “The parties to the marriage contract may put forth any condition that is not inconsistent with the named contract in connection with the marriage contract or some other binding contract. For example, there may be the condition: whereas the husband marries another wife, or disappears for a certain period, or ceases to maintain his wife, or has evil intentions against the life of his wife, or develops a bad character so that their life together become unbearable, the woman is an attorney and can appoint an attorney so that after the establishing of the condition in the law- court and before the legislature, she may consider herself divorced.”

As you see, the thing which is all the time repeated, that, in the view of Islamic law and the Civil Law of Iran, divorce is a one-sided right and is absolutely denied the woman, is just not true.

In the view of Islamic law, and also according to the Civil Law of Iran, the right of divorce as a natural right is not meant for the woman, but as stipulated and conferred right it can exist, and can be made use of by her.

Now we have arrived at the stage where we can take up the second part of our subject, namely the cruel and unmanly refusal of certain men to divorce. We have to see whether Islam has provided some way for the solution of this difficulty which is really a very problematic situation. We shall discuss this subject under the heading of ‘Judicial Divorce’. Meanwhile, we mention our regret that our discussion of the first part has become so long.