Can a husband divorce his wife unilaterally? Divorce (talāq) means freeing oneself from the contract of nikāh (or the bond of holy matrimony). Marriage is a solemn contract, a strong commitment and a tenacious bond [Q. 2/235, 2/237, 4/21]. By virtue of this solemn contract a man and a woman make pledge to accept the rights and obligations laid down by the Qur’ān in respect of their being husband and wife in order to lead a life of companionship. Since this contract was made between two parties, namely a man and a woman, no one of them has the right to revoke it on one’s own, whenever one wants, by just saying, “divorce, divorce, divorce”. The rights of the other person have also to be safeguarded. Qur’ān does not leave the matter of divorce to an individual. The society is ordered to take up this matter which decides on the disputed issue. Nowadays, this is either called a government or a court. Qur’ān says in 4:35: “If you fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for agreement, Allāh will cause their reconciliation: For Allāh hath full knowledge, and is acquainted with all things.” [4:35] If we see the above verse carefully, the addressees are neither the arbiters nor the husband or wife but Islamic Authority or the Court. If the arbiters succeed to persuade them to come together, then well and good, but if their efforts fail, they will have to report to the court that appointed them. This court will decide whether a divorce should become effective and what the conditions should be. When the Prophet [sws] was alive, he himself was the judge (of such a court). The first verse of SurahAt-Ṭalāq reads: O Nabī (sws), when you divorce your women [65:1]…… In 65:1, Nabī has been ordered to make the divorce effective. Nabī never divorced his own wife. This order from Allāh is for deciding the divorce cases for believers. In 4:59, the believers have been commanded by Allāh to refer their disputes to Allāh and His Messenger (Rasūl). The verse 4:65 also makes this point clear. “O you who believe! Obey Allāh, and obey the Messenger, and those charged with authority among you. If you dispute in anything among yourselves, refer it to Allāh and His Messenger, if you do believe in Allāh and the Last Day: That is best, and most suitable for final determination. [4:59] But no! by your Lord! they do not believe (in reality) until they make you a judge of that which has become a matter of disagreement among them, and then do not find any resistance in their hearts as to what you have decided and submit with entire submission. [4:65]. Now if we come back again to verse 65:1, the key word used for divorce is “Ṭallaqtum” which is a plural word. This signifies that the Prophet [sws] may not be the only one to affect the decisions about divorce. Those who He charged with authority could also make such decisions when and where the prophet [sws] would not be present, as is also suggested by 4:59. From this, it is clear that in respect of divorce, it is the Islamic Authority i.e. the Islamic Court that makes the final decision and the husband and wife cannot do so individually. The court should announce its decision when the monthly period of the woman expires, because ‘iddat’ will be counted onwards. This shows that a unilateral announcement of divorce by a husband is nothing more than his intention to do so. Divorce will take effect from the day the court of law decides the case after observance of due formalities. The wife shall then complete her iddat prescribed by the Holy Qur’ān before she chooses to remarry. If this is the process of divorce according to Qur’ān then what shall be the position of divorces inflicted in contravention of these laws?
Regards,
Muhammad Latif Chaudhery
Answer
wa alaykum assalaam!
You have understood from some of the verses of the Qur’ān that divorce cannot be carried out by the husband but can only be carried out by the court. I do not agree with your conclusion. Allow me to go through your arguments one by one in order to explain why:
– You wrote:
“Since this contract was made between two parties, namely a man and a woman, no one of them has the right to revoke it on one’s own”.
A typical contract includes conditions and procedures with regard to cancelling the contact. If the conditions state that one of the two parties can revoke the contract on one’s own then there is no legal problem with this. We can see many examples of contracts with similar conditions of revoke around and they are all deemed legitimate.
– You referred to verse 4:35 and concluded:
“If we see the above verse carefully, the addressees are neither the arbiters nor the husband or wife but Islamic Authority or the Court. If the arbiters succeed to persuade them to come together, then well and good, but if their efforts fail, they will have to report to the court that appointed them. This court will decide whether a divorce should become effective and what the conditions should be.”
There is no indication in the verse to conclude that its addressee is Islamic authority. Also there is nothing in the verse to say what should be done if the arbiters do not succeed. The main message of the verse is that in severe conditions an arbitrator from each side should try to settle things down. While an Islamic Authority can facilitate this, its involvement is not a must. Appointment of arbitrators can in normal circumstances be carried out by the elders and well wishers. This is a very natural and obvious measure that is common even among some of the non-Muslim societies. The very fact that one arbitrator should be from the husband’s side and one from the wife’s side shows that the issue is under the control and within the domain of the extended family.
You referred to 65:1 and concluded that the order in this verse is for the Prophet (sws) to decide the divorce cases for believers.
I invite you to read the whole verse and the verse after:
“O Prophet! When you (people) divorce your wives, divorce them according to their waiting periods, and count accurately this waiting period, and fear God your Lord. [During this waiting period] turn them not out of their houses, nor should they [themselves] leave, except in case they are guilty of some open lewdness. And [remember] these are the bounds set by Allāh and those who transgress the bounds of Allāh, it is they who wrong their own souls. You know not that God might thereafter create new circumstances. Thus when they approach the end of their waiting period, either take them back on equitable terms or part with them on equitable terms. And call to witness two honest men among you. And [you witnesses] establish this testimony for God. It is this thing to which those are exhorted who believe in God and in the Last Day. And [if] those who fear God [encounter any difficulty], God will find a way out for them”. (65:1,2)
I think it is very obvious from both the plural verbs as well as the directives themselves that the addressees of these two verses are in fact men who are in the process of divorcing their wives. You have interpreted the plural verbs to mean the Prophet (sws) or the authorities. I think what you are not appreciating is the irrelevance of phrases like اتَّقُوا اللَّهَ, فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ , فَارِقُوهُنَّ بِمَعْرُوفٍ to any one or any authority other than the husband.
The verse starts with the expression يَاأَيُّهَا النَّبِيُّ but it immediately expands the addressees to all men among believers. The Prophet (sws) was himself a husband (who like any other husband could find himself in the situation of divorcing a wife) and he was at the same time the head of his people (therefore responsible to make sure people will understand these directives), so the verse singles him out at the beginning and then expands its meaning to all. This is like saying to the leader of a group (e.g. Zaid):
“Oh Zaid, when you (people) want to travel you need to get tickets first”.
This simply means that Zaid and his people need to get ticket for travelling and that Zaid has to make sure people understand this.
In verses 2:231 and 2:232 the same expression (i.e. when you divorce your wives) has been repeated without addressing the Prophet (sws) which again is an evidence for the above interpretation of the verse 65:1 (i.e. it addresses the husband).
– You referred to verses 4:59 and 4:65 as support for your argument. It would have been possible to consider using these two verses as support for your argument only if we had no explicit verses of the Qur’ān to give authority of divorce to the husband. As I explained in the last point I think we do have numerous verses of the Qur’ān that give authority to the husband. I therefore do not find it necessary to discuss these two verses. Nevertheless I invite you to read from 4:59 to 4:70 (with some deliberation on the link of the verse 4:60 with other verses) in order to see the whole context within which the two verses you referred to are placed.
– You referred to verse 2:237 and argued that here too the addressee cannot be the husband since it is about the payment or remission of the appointed portion. Your argument is: “The person in whose hand is the marriage tie can be anyone except the husband because he is the debtor and a debtor cannot forgo his own debit.”
The verse is not about the husband forgoing his own debt (dowry). As you correctly said this would have been nonsense. The verse is in fact about the husband forgoing the right that is given to him earlier in the verse, that is, the right to reduce his payment of dowry to half of its value.
The verse 2:237 is as follows:
I invite you to think about the phrase وَ أَن تَعْفُواْ أَقْرَبُ لِلتَّقْوَى (and if you forgo your right, it is nearer to piety). The verb تَعْفُواْ here is for male so it cannot be for the wife. It also cannot refer to the authorities because it does not make sense to say that if authorities forgo part of the dowry then it is closer to piety! Getting closer to piety here can only apply when one forgoes one’s own right. The verb is therefore only applicable to the husband who is advised to forgo his right of keeping half of the value of the dowry.
Based on the above explanation, the interpretation of the verse will be as follows:
“And if you (men) divorce them (i.e. your wives) before touching them, but after the fixation of a dowry for them, then half of this fixed dowry should be given to them, unless they (i.e. wife) forgo it or he in whose hands is the marriage knot (i.e. the husband) forgoes it (that is the half that you can keep); and if you (men) forgo (the half that you can keep), it is nearer to piety. And do not forget your superiority among yourselves. For Allāh sees well all that you do.”
Another interesting point here is that if you agree with me that based on the above argument الَّذِى بِيَدِهِ عُقْدَةُ النِّكاَحِ (one in whose hand is the marriage knot) is actually the husband, then this is another proof from the Qur’ān that men have authority to divorce their wives.
Conclusion:
As far as I see I have addressed all your arguments and while I am not insisting that you should accept them, I really hope that they are at least clear enough.
At the end I would like to emphasize the point that in numerous verses of the Qur’ān (some of which I have referred to in my answer) husbands have been the sole addressees when it comes to directives of divorce. In almost all the details about the procedure of divorce, men (husbands) are the addressees. This is inline with the fact that the Qur’ān explicitly gives a degree of superiority to the husband when it comes to the marriage contract (2:228 وَ لِلِّرجَالِ عَلَيْهِنَّ دَرَجَه ) and puts the husband in a higher position when it comes to managing of the family affairs (4:34 الرِّجالُ قَوَّامُونَ عَلَى النِّساء). The almighty wants the social unit of family to have a leadership system like any other social unit and has given this responsibility to men. It is only inline with this responsibility that men are given the authority of divorcing their wives.
I would also like to raise the point that rules related to divorce are in fact part of the Sunnah of the Prophet (sws). The basics of these rules actually existed among Arabs before the advent of Islam and they were the survivers among Bani Ishmael from the Sunnah of Ibrahim (as). The verses of the Qur’ān have only revived and revised these directives rather than bringing something totally new. The idea that divorce was only possible by the Prophet’s intervention does not have any evidence from the Sunnah of the Prophet (sws) and is in fact against what was/is practiced as the Sunnah of the Prophet (sws). Also records are evident that people used to divorce their wives at the time of the Prophet (sws) and afterwards without referring to the Prophet (sws) or to the court. Of course referring to the court will become necessary when there is a dispute about divorce and its surrounding issues that cannot be resolved otherwise. An example of such situation will be a wife demanding divorce from her husband where the husband is not fulfilling the demand. Also, if we are living in a country where according to the law any divorce needs to be authorised by the court, then of course as a resident of that country we are bind to obey this rule.
