Judicial Divorce

By judicial divorce we mean a divorce which is obtained through a judge and not through the husband.

In many of the world’s systems of law, the authority of divorce is altogether in the hands of the judges. The judiciary is the only forum which can adjudge the plea of divorce and the dissolution of marriage. Under those laws all divorces are judicial divorces. In our previous sections, by taking note of the spirit of the union of marriage and the purpose in setting up a peaceful family environment, and also by keeping in view the position and status that a wife should have in the family milieu, we clarified the invalidity of this approach. We have submitted our reasons, and have shown that divorces which culminate through the natural course of events and as a result of these events cannot depend upon the decision of a judge.

The question a present is whether, in the view of Islam, a judge (qadi) - with all the strict and stringent necessary attributes that Islam has prescribed for him - has no right to give a divorce in any case, situation or circumstances. Or whether under certain special conditions that right does devolve on him, however exceptional or rare those cases might be.

Divorce is a natural right of man, provided that he behaves in a normal manner towards his wife. The normal behavior of a husband towards a wife is that, if he likes to live with his wife he should look after her properly, respect her rights and behave with love towards her. In case there is no way in which he can continue to live with her, he should courteously and kindly divorce her, i.e., he should not abstain from divorcing her. He should pay what is due to her, and something over and above that as an expression of gratitude:

Yet make provision for them, the affluent man according to his means, and according to his means the needy man (2:236). And inform her about the termination of their relationship as husband and wife. However, if the husband does not act according to the normal code of behavior, what should be done? We mean to say that we come across a man who does not wish to live with his wife, who neither behaves in a congenial manner nor provides a happy and Islamic environment for the family, nor even sets the wife free to her own fate, who in other words, neither cares to perform the responsibilities of married life, nor cares to take measures to create suitable situation for his wife, nor even consents to divorce his wife, in such circumstances what is to be done?

A normal divorce is similar to a normal childbirth, which makes natural progress by itself, but a divorce from a man who neither performs his duties as a husband nor consents to divorce his wife is similar to an unnatural and abnormal birth in which, with the help of a doctor and a surgeon, the new child has to be delivered.

Whether some marriages are a cancer which the wife must suffer and put up with:

Now let us see what Islam says about this kind of divorce and this kind of man. Does it still say that the matter of divorce depends completely upon the will of the husband? If this kind of man does not agree to a divorce, should the wife suffer and put up with it? Does Islam helplessly wash its hands before each of them and observe this cruel position from a far?

The belief of the majority of jurisconsults is the same. They believe that there is no remedy for this in Islam. As if this is a sort of cancer, and as if, by chance, some individuals are made a victim of it and there is no remedy for them. The woman must grin and bear it till eventually she meets her end.

In my own opinion this way of thinking is absolutely in consistent with the accepted principles of Islam, the religion which always declares its belief in justice, “qiyam bi-qist” (the upholding of justice), that is, which considers that the real and the basic purpose of all the prophets of God was to maintain and uphold justice:



Indeed, We sent Our Messengers with the clear signs, and We sent down with them the Book and the Balance so that men might uphold justice. (Qur’an, 57:25)

So, how is it possible that for such a clear and glaring justice as this no remedy has been provided. As if it is possible that Islam has arranged its laws in such a way that as a result of them a miserable person would suffer like terminal cancer patient.

It is regrettable that some individuals, in spite of their admission and acknowledgement that Islam is the religion of justice, and in spite of counting themselves as followers of the doctrine of justice, express an opinion like this. If it is agreed that we can ascribe an unjust law to Islam under the excuse of ‘cancer’, there can be no grounds for raising an objection to some other peoples oppressive law which excuses itself as a ‘tetanus’, and someone else’s law which counts itself as tuberculosis’, and someone else’s as ‘paralysis’, and anothers’ on some other pretext and their excuses should therefore be acceptable.

If it is really like this, what about the principle of justice which is the foundation stone of Islamic legislation, and what about the establishment of justice which was God’s main purpose in sending the prophets.

They say ‘cancer’, I say all right, let it be cancer. But if a patient suffer, from cancer, and minor operation, if promptly done, can cure the patient, what then?

A woman submits herself to a man as a partner for life, and afterwards there is a change in the state of affairs, the circumstances take such a turn that the husband takes undue advantage of his authority and also refuses to divorce her. He takes this step only to prevent her from marrying some suitable man, and not so as to live with her thereafter amicably as husband and wife, and leaves her, in the words of the Qur’an, like someone hanging on. No doubt, such a woman is confined like a cancer patient, although, as a matter of fact, she suffers from a kind of which can be cured by means of a minor operation. The patient can become well, and can completely recover, by means of a minor operation. This kind of operation is possible at the hands of competent religious authorities and judges.

As we pointed out in our previous articles, one of the two difficult problems in our society is the abstention of a section of merciless men from divorce, and this act of severe cruelty they commit in the name of and under the pretext of religion. These cruelties are the outcome and an offshoot of a wrong conception of Islam, which, according to them, says; “A woman must bear such cruelties like a terminal cancer patient.” This has created an impression of Islam which is more harmful than any of the evil propaganda against our faith.

In spite of the fact that the arguments concerning this matter are of a rather technical and a specialized nature and are somewhat out of place in these articles, I think it worthwhile to examine the factors surrounding this subject. My object is to show the pessimists that what Islam really says is different from the above nonsense.

Deadlocks:

Such deadlocks as this are not limited to matters of marriage and divorce. In other spheres of life, say, in money matters, situations like this present themselves. Firstly, let us see what Islam has done in matters other than marriage and divorce as regards certain difficult situations. Did it leave them as deadlocks and as irremediable phenomenon, or did it disregard the idea of a deadlock, and find a remedy?

Suppose two individuals get the right of ownership by succession or by some other way to an indivisible property like a jewel or a ring, or an automobile, or a rare painting, and do not agree to make use of it in partnership. Neither of them agrees to the suggestion that the property should remain for sometime with one of them and for sometime with the other. Neither of them is prepared to sell his share to the other partner. Thus, they do not arrive at any mutual agreement about making use of that thing. Also we know that if one of them makes use of it, it depends upon the permission and consent of the other. Now, what should be done in situations like this? Should that property be left alone without being used and the matter be left as too complicated and insoluble? Or has Islam provided a remedy and a solution for situations like this?

The fact is that Islamic jurisprudence does not leave a problem like this as insoluble. When there is a case of property not being used and going to waste, Islam does not acknowledge the inviolability of the right of ownership and possession. In cases like this Islam allows the religious authority to deal with it as a matter of social welfare, to take his decision on it as problem of dispute, despite the will and obstinacy of the owners, and to make the correct arrangements. For example, the article in question may be rented out, and the rent may be divided according to their shares; or the property may be put up for auction and the sum received may be shared between them. Anyhow, it is the duty of the religious authority or the judge as “wali-e mumtani’” [1] to make proper arrangements. The owners of the property may agree or may not agree; it is immaterial.

Why is the right of ownership, which is a legal right, not kept in view? For the good reason that another basic principle is being taken into account. The principle of preventing property from going to waste and lying unused. Regard for ownership and possession by the owners is to be observed, as long as that right does not lead to the waste of property and wealth.

Suppose that the disputed item is precious stone or a sword or some other thing like this; and that neither of the owners is prepared to sell his share to the other partner; but suppose that each of them agrees to break the item into two, and each one is ready to accept half of it as his share. It means that they have gone to such a limit in their begrudging and ill-will that they are prepared to render the property worthless and spoil it. It is obvious that a precious stone, or a sword, or an automobile, when is broken into two, becomes useless. Does Islam allow this? No. Why not? Because this is a waste of property.

‘Allamah Hilli, [2] one of the most celebrated jurisconsults in Islamic history, said: “If they want to do an act like this, the religious authority should prevent them from taking this step. The assent and agreement of the owners of the property is not enough for them to be allowed to do something like this.”

The deadlock of divorce:

Now let us see what is to be done in the problem of divorce. If the man has an incompatible attitude and does not grant those rights and perform those duties, which he is bound by Islam to do, what is to be done? Some of those duties are financial (maintenance). Some of them are moral (courteous behaviour), and some concern sexual matters (the right of sexual relations and intercourse), If he does not grant these rights and fulfill these responsibilities, or some of these responsibilities, and, in spite of that, is also not prepared to divorce the wife, what course is to be adopted. Does the maxim of (asl-e lazim) ‘priority of the principle’ or (mawrid-e ahammiyati) ‘the matter of priority’ apply in this case so that Islam can allow the religious authority or the judge (qadi) to take proper steps, in the same way as it allowed them in the matter of property; or does that maxim or principle not apply here?

The view of Ayatu’llah Hilli:

Hence forward I would I would like to place this discussion in the hands of one of the first rank jurisconsults of our time, Ayatu’llah Hilli, who lived in Najaf. [3] This illustrious jurisconsult has given his view on this subject in a book called Huququ ‘z- zawjiyyah (Conjugal rights).

The summary of his opinions in so far as they are related to the rights of women and limitations on men are as under:

“Marriage is a sacred contract and is at the same time a kind of partnership between two persons, and this brings about a series of contracts between the two of them. The peace and prosperity of each one of them depends only upon compliance with the terms of those contracts. Moreover, the prosperity of society as a whole also lies in their prosperity and the performance of the terms of the contracts concluded by each one of them.

“The main rights of the wife are maintenance, dress, sexual relations and intercourse as husband and wife with courteous behaviour. If man neglects to perform his duties towards his wife, and also abstains from divorcing her, what is the proper course for the wife to pursue, and how should the husband be dealt with?

“In eventualities like this, two courses become incumbent. One course is that the religious authority should have the right to intervene and by granting a divorce settle the matter for good. The second course is that the wife herself should, in the same way as the man, refrain from performing and complying with her part of the contract.

“Now, regarding the first line of action, namely, the intervention of he religious authority, let us see under what principle and on what grounds the religious authority has the right to intervene in situation like this.

‘The Qur’an in surah al-Baqarah (The Cow) makes the following commandment:



Divorce is twice; then honourable retention or setting free kindly (2:229)

And again in surah al-Baqarah it is ordained:

“And when you divorce women, and they have reached their term, then retain them honourably or set them free honourably; and do not retain them by force, to transgress; whoever does that has wronged himself (2: 231)

“From these verses a general principle can be deduced and that is that every man in family life should make a choice between two alternatives: either he must fulfill all rights and perform all duties politely (‘honourable retention’) or break the tie of the union and set the woman free (‘setting free kindly’) Any third possibility that he may neither give her rights properly and politely nor divorce her, is not known in Islam. The phrase: And do not retain them by force to transgress negates this very possibility.

“It is not unlikely that the above phrase may connote a general rule; that is, it may include those cases when a husband intentionally and out of negligence makes the life of his wife difficult and miserable, and it may also include those cases where, in spite of the husband not being at fault intentionally, as far as the matter of honourable retention is concerned, there is nothing but loss and hurt for the wife.

“Although these verses were revealed in connection with the period of ‘iddah and the revocation of divorce or its non revocation by man, and throw a light upon the proper course of action for him, yet he is advised that the revocation must be with the intention of behaving considerately and looking after the wife and not of harming or hurting the poor woman. Nevertheless, it is not limited exclusively to that occasion. It lays down a general principle, and lays down the rights of a wife for all times and in all conditions. It signifies that a husband should choose for himself one of the two above-mentioned alternatives, and that there is no third course possible for him.

“Some juristconsults are involved in an error at this very juncture, and have thought that these verses are exclusively about those men who want to revoke the divorce within the period of ‘iddah. No, that is not so. These Verses shed a light on the duties of all husbands in all circumstances, in respect of their wives. Our argument concerning this, besides the sequence and trend of the verses is that the Holy Imams have expounded and cited these verses on occasions other than ‘iddah. For example, Imam al-Baqir (a.s.) said, concerning a man who makes a vow of “ila’” (which means that somebody declares on oath that he will not have sexual relations with his wife for four months or more) that he must, after the four months have passed, either break his oath and make atonement, or else he must divorce his wife, for the good reason that God commands, honourable retention or setting free kindly.

“On another occasion, when a man had appointed another man as his attorney to make a marriage contract with a woman on his behalf and to fix a dower, the attorney complied with the request but the man who had appointed him as his attorney afterwards denied having given him that authority. Imam as-Sadiq (a.s) said that for that woman there was no obstacle to her choosing another husband. Nonetheless, if that man had really made another person his attorney and the marriage that took place was through a rightful attorney, the who appointed the attorney must, for the sake of God, divorce that woman and must not let her go without a divorce. The Imam said, ‘because God in the Qur’an commands: then honourable retention or setting free kindly’. Thus, it is clear that the Holy Imams pave treated this verse as a general principle, and not limited it to specific occasions.

“When a man neither performs the duties which he must perform as a husband, nor divorces his wife, the religious authority should call the husband. Firstly, he should ask him to divorce his wife. If he does not divorce her, the religious authority should divorce them. In a tradition, related by Abu Basir, Imam as-Sadiq (a.s.) said, ‘If there is anyone who has a wife and does not arrange for her dress and does not provide her maintenance, it is obligatory on the leader of the Muslims to enforce a separation between them (through divorce).’”

This was a very short summary of the views of a contemporary first-rank jurisconsult. Anyone who wants to study his views in detail may go through the book Conjugal Rights, which is a compilation of his lectures for his students.

As you have seen, the phrase retention honourably or setting free kindly is a principle and a general rule in the frame of which the Holy Qur’an has inscribed the rights of wifehood. Therefore, under this principle, and in accordance with the emphasis with which the phrase and do not retain them by force to transgress is ordained; husbands are not allowed in any case to take undue advantage of their authority. A man is not allowed to keep his wife by force if he has no intention of living amicably with her and only wants to keep her in distress and prevent her from marrying another man.

Other arguments and citation:

Besides, the references and arguments which have been mentioned in the book Conjugal Rights there are other, more convincing arguments and references to support our viewpoint. On the strength of those arguments we arrive at the conclusion that in the view of Islam the Qur’anic phrase retention honourably and setting free kindly is a general and absolute principle. Within that framework the rights of women can be read and should be observed. The more a man studies the pros and cons of this point, the more clear he will find it, and the more intensely he will realize the soundness of the regulations of the sure religion of Islam.

In al-Kafi, vol.5, p. 205, Imam as-Sadiq (a.s.) is quoted as saying:



Which means that whenever a man wants to marry a woman he should say:
“I acknowledge the promise which God has taken from me, that I will retain the woman honourably or shall set her free with kindness.”

In verse 21 of Surah an-Nisa in Holy Qur’an it says:

How shall you take it, when each of you has been privily with the other, and they have taken from you solemn compact?

The Sh’ite and Sunni commentators both agree that by ‘solemn compact’ is meant the same covenant that God has taken from men with the phrase: retention honourably or setting free kindly, This is the same promise about which Imam as-Sadiq (a.s) said that, on the occasion of marriage, the man should promise and acknowledge: retention honourably or setting free kindly.

There is a well-knowing hadith of the Prophet which he said on the occasion of his last hajj (hajjatu ‘l-wida ‘) and which the Shi ‘ah and Sunni have both related:




“O people! Keep Allah in mind and fear Him in respect of women, because you have taken them as trust from Allah and you have made lawful their chastity for yourselves by the word of Allah.”

Ibn al-Athir [4] in Kitab an-nihayah said: “by word of Allah”, which the Holy Prophet said, and by which the chastity of women becomes judicial, is the same as that which is expressed in the Qur’an by the phrase: retention honourably or setting free kindly.

The view of Shaykh at-Tai’ifah:

Shaykh at-Tai’fah at-Tusi [5] in the book Khilaf, vol.2, p.185 after expressing his view regarding ‘impotence’, said that after it is proved that a man is impotent, the wife has the right to dissolve the marriage and there is consensus of opinion of the learned on this point. At that juncture he said: “and also it has been argued on the grounds of the verse retention honourably or set her free kindly, that, because an impotent man is unable to retain his wife honorably and properly, he should set her free”

From all this it can be understood for certain that Islam never allows a deceitful man to take undue advantage of the right of divorce, and retain a woman as a prisoner.

However, from what has been said it should be understood that not everyone who calls himself a qadi has the right to interfere in matters like this. In the eyes of Islam, there are very serious and stringent conditions to fulfill to be eligible and to be competent as a qadi However, this is not the occasion to define and explain them.

The other point which requires due attention is that from the Islamic standpoint, in spite of all Islamic efforts to maintain the peace of the family, the occasion for judicial divorce only occurs in very rare, exceptional and uncommon cases. Islam never allows divorce to take the form which it has taken in Europe and America, examples of which we read daily in the newspapers. For example, a wife complains and demands a divorce from her husband on the ground that he does not appreciate the film which she likes most, or that her husband does not kiss Fifi, her dear dog, or other ludicrous matters like this, which are manifestations of the breakdown of human values.

The worthy reader will, we hope, have fully understood, by what we have said in these few articles, the points which we raised and set down to be thought over at the beginning of our section. In this section we have detailed five points regarding divorce the following order:
1. The unimportance of divorce and the lifting of all moral and social checks and hindrance from control over divorce.
2. The concept that all marriages are eternally binding, and that divorce is not permissible for any reason. (The view of the Catholic Church)
3. That marriage can be terminated by the man, but not by the woman in any circumstances.
4. That marriage should be terminable by the man as well as by the woman under special conditions, and that the way to put this into practice should be one and the same for both of them.
5. That recourse to divorce should be open for man and for woman too. It should not be altogether barred, but the door by which the husband should come out of the marriage should be is different from the door for the wife.

We have said in this section, that Islam approves the fifth viewpoint. From what we have said regarding the conditions at the time of the conclusion of the marriage contract and also on the subject or judicial divorce, it is, we hope, clear that, although Islam does not recognize divorce as taking the form of a natural right for woman, yet it has not altogether barred the way for her and has provided special doors for her.

On the subject of judicial divorce, we could have said more in the light of the guidance of the Imams and the jurisconsults of all the sects of Islam, and how, according to those views, laws are enforced in all the countries of Islam. Anyhow, we think that what we have said in these articles will suffice.