Tribulation of Divorce in the Muslim World

 

بِسۡمِ اللّٰہِ الرَّحۡمٰنِ الرَّحِیۡمِ

In the Name of Allah, the Rahman, the Merciful

All praise belongs to Allah, Lord of the worlds

Peace and benedictions upon you, my Master, Apostle of Allah

The Holy Prophet Muhammad صلى الله عليه وآله وسلم said:

أَبْغَضُ الْحَلاَلِ إِلَى اللَّهِ تَعَالَى الطَّلاَقُ

The most hated of the permissible things to Allah Most High is divorce (Sunan Abi Dawud, #2178, Isnaduhu Hasan)

Although a man divorcing his wife is permissible in our Shari’a as it was permissible in the Mosaic Law, it is not something good and Allah hates it. It has only been made permissible as a necessary measure as there are circumstances in which a man has no other option but to put away his wife. But in every instance a divorce is a tragedy and never something to be desired or celebrated. According to the Christian Gospels, Jesus Christ عليه السلام abrogated the lawfulness of divorce: “It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement: But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery” (Matthew 5:31-32, KJV), “And he saith unto them, Whosoever shall put away his wife, and marry another, committeth adultery against her. And if a woman shall put away her husband, and be married to another, she committeth adultery” (Mark 10:11-12; Matthew 19:9, KJV). If it is historically true that Jesus Christ عليه السلام said these words and abrogated the lawfulness of divorce in the Mosaic Law by declaring it adultery for either to remarry another afterwards that is a testament to the delegated authority of a Prophet. But the Holy Prophet Muhammad صلى الله عليه وسلم is the Seal of Prophets and his Shari’a abrogates anything at variance with it that came from the prior Prophets and Scriptures, and in this Shari’a a man is allowed to divorce his wife. But although Jesus Christ عليه السلام supposedly prohibited divorce, declaring it the cause of adultery, it is ironic that today it is the world of Christendom in which divorce is most widespread. In 2020, Portugal, a predominantly Roman Catholic nation, registered a divorce rate of 92 per 100 marriages!

Yet it is also shameful that in our time divorce rates are skyrocketing in much of the Muslim world. According to both our Islamic Shari’a and the Mosaic Law divorce can only be initiated by the husband: “Under Jewish law, a man can divorce a woman for any reason or no reason. The Talmud specifically says that a man can divorce a woman because she spoiled his dinner or simply because he finds another woman more attractive, and the woman's consent to the divorce is not required. In fact, Jewish law requires divorce in some circumstances: when the wife commits a sexual transgression, a man must divorce her, even if he is inclined to forgive her... Under Jewish law, divorce can only be initiated by the man; thus, if the husband cannot be found, he cannot be compelled to divorce the wife and she cannot marry another man. A woman in this situation is referred to as agunah (literally, anchored, commonly translated as chained). The rabbis agonized over this problem, balancing the need to allow the woman to remarry with the risk of an adulterous marriage (a grave transgression that would affect the status of offspring of the marriage) if the husband reappeared. No definitive solution to this problem exists. It is particularly problematic in Israel, where a woman without a proper get from a past husband cannot legally remarry, and there are husbands who flee the country to leave their wives chained.”

The law in the Islamic Shari’a is similar, meaning a wife can’t obtain a khul’ (dissolution of the marriage) from a court or judge without her husband’s consent. One of the reasons for the skyrocketing of reported divorce rates in Muslim countries, particularly Arab countries, is due to the judiciaries and laws of such countries granting women the right to unilaterally dissolve their marriage, without their husband’s consent. Such laws and decisions made by such courts is a clear violation of the Shari’a, which does not validate a khul’ without the husband’s consent. In such a scenario, if the woman “marries” another man her marriage is not only invalid she will be guilty of the grave sin of adultery and any children born from such an unholy union will be considered illegitimate (bastards). In Egypt, “On January 29, 2000, President Mubarak signed a new law granting Egyptian women the right to file for a divorce on the basis of ‘incompatibility,’ without providing evidence of harm. In order to file for a ‘no-fault’ divorce (khula), a woman need not provide grounds for filing the divorce request, but must agree to forfeit her rights to alimony and her deferred dowry (mu’akhar) as well as repay her advanced dowry (muqaddam). For some women, khula has proved to be faster than the fault-based divorce process, since they are not required to demonstrate evidence of harm or find witnesses, and men do not have the right to appeal the no-fault divorce to a higher court.” As can be expected, divorce rates increased significantly in Egypt since the passage of this law. Regrettably, much of these satanic reforms that violate the Islamic Shari’a have been facilitated by many so-called “scholars”, or Ulama as-Su as they are dubbed, who are influenced by feminism and reformist liberalism. At present, it seems only the traditionalist Hanafi Ulama, particularly those of the Subcontinent, have the most jealousy for the Shari’a in this regard in not recognizing the validity of a unilateral divorce initiated by a wife, without her husband’s consent. One of the modernist, feminist and ignorant influencers, namely, the swine known as Engineer Mirza of Jhelum, declared that a woman can obtain a unilateral dissolution of her marriage from the courts for any reason or none without her husband’s consent. Here we see a major problem with modern Salafism and similar methodologies, like the approach of the so-called Ahle Hadith sect in the Subcontinent which has no regard for Fiqh or classical Islamic scholarship but irresponsibly makes rulings based on their deficient understanding of Hadith narrations. Such an approach has resulted in a disaster on the issue of the validity of Khul’ without the husband’s consent, practically leading to breakup of so many marriages and families. Although they claim to be following the blessed Salaf رضى الله عنهم and sticking to the literal purport of the Hadith, the modern-day Salafis, Ahle Hadith and like-minded groups, precisely because they are a modern phenomenon and have no continuity in the past their rulings and positions are more in line with that of the reformists, “progressives” and feminists as opposed to us traditional Sunni Muslims. Now one sees the wisdom of the Shari’a in this matter in preventing unilateral dissolution of marriage initiated by the wife, as such a thing has resulted in skyrocketing breakup of marriages and families as already occurred in Western civilization. The stupid Salafis have no concern for the present social problems and the breakdown of traditional Islamic values and lifestyle, as they are only obsessed with hairsplitting over theology and opposing traditional Sunni scholarship. Hence, it is observed that many of the youth who are strongly under the influence of Western culture and ideas have gravitated toward the non-Madhhab and anti-Madhhab variants of Salafism. Giving the right to women to unilaterally dissolve their marriage is a disaster, as it is in the nature of women to make rash decisions without properly thinking through the consequences, including on themselves, their children and society in general. This false gospel of absolute equality between the sexes has only served to fast track the destruction of the precious institution of the family which is the bedrock of society.

Muslim minorities, especially here in the West, must struggle to establish a parallel legal system consisting of our own private courts managed by our qualified Sunni Ulama. The community will have to start popularizing such courts and tribunals, even if they have no official status in the countries we live in. Such courts are necessary for our community to deal with matters of marriage, divorce, inheritance, custody, and other civil matters. Of course, the members of the community will have to voluntarily resort to such Islamic courts where they have no official status in the land. It is a test of our faith and character to resort to such courts and accept their decisions as binding upon us in a situation where they have no recourse to enforce them. But I fear that if we do not establish a parallel Islamic legal system in the lands where we are a minority then our community will be harmed and end up drowning in sinful disobedience to Allah سبحانه وتعالى

This may also be necessary in Muslim majority countries where the law of the land has been secularized and the courts therefore have no credibility.