By Dr. Lutf ur Rehman, Nashville, TN
Marriage is a contract between two consenting adults which allows them to live together as a family and raise their children. If this arrangement cannot continue for some reason, divorce is the way to end this marital contract.
Divorce is the termination of a marital union, the canceling and reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country, state, or religion.
Family is the basic unit of a society. Disruption of this basic family unit has many consequences not just for the members of that family but also for the society as a whole. Therefore no society or religion encourages divorce or breakup of a family. Islam also encourages continuation of the family and discourages divorce. Nevertheless it recognizes that in certain circumstances it may be impossible or even detrimental to continue this union and allows the dissolution of marriage through the regulations of divorce.
“That is the command of Allah which He has revealed to you. And whoso fears Allah – He will remove the evil consequences of his deeds and will enlarge his reward.” (Holy Quran, Ch. 65, verse 6)
The Promised Messiah (as) describing the meaning of this verse of the Holy Quran said, “This is the instruction of God for you that whoever will fear God and would not be quick in giving talaq (divorce) and try to avoid it altogether, God will forgive all his sins and reward him abundantly.” (Holy Quran, Ch. 65, verse 6. Mentioned in “Arya Dharam” page 47)
Before taking the step of divorce, Islam prescribes many teachings to avoid it. Islam is a religion of discipline and in a family unit appoints the husband as the head of the household. This position has been assigned to him due to certain duties he performs. He earns for the household and takes care of his wife and children. If husband is not performing these duties and the wife is earning for the family, then she would be the head of the household. Respect and obedience of the head of the household is necessary. If this teaching is observed many conflicts can be avoided.
Quran also teaches that wife and husband are like garments for each other. (Holy Quran, Ch. 2, verse 188) They cover each other’s shortcomings and help each other look good. Instead of exposing and fighting over these flaws they work like a team and assist each other. They are the best friends.
In case of a serious dispute between the spouses the Holy Quran advises restrain as God has put much good in this relationship. If husband and wife continue to strive and be good to each other, God will put love between them. (Holy Quran, Ch. 4, verse 36)
The Quran even insists on arbitration between the spouses before a divorce to explore any possibility of reconciliation. To provide fairness and equality in this process God advises to have one representative from the family of the husband and one from the family of the wife. If both parties will follow this process honestly and try to reach a compromise then God will help them in this process. (Holy Quran. Ch. 4, verse 36)
Then if they embark on the process of divorce, God has made it slow and prolonged, providing many chances for reconciliation and getting back together again.
If a husband initiates divorce it is called ‘Talaq’. If a wife initiates divorce it is called ‘Khula’. The legal process for these two is different. The word ‘Talaq’ means to set free or to give back ones freedom. Talaq can be given verbally or in writing. The husband does not have to give reasons for the talaq. This works in favor of the wife as her shortcomings are not exposed and the husband has no interest in creating false premise for the divorce.
Talaq (Divorce given by the husband)
When talaq is valid?
- Talaq is valid only if it is given deliberately while sane. Talaq is not valid if it was given in extreme anger, in a hurry or under duress. (FiqahAhmadiyyah) Talaq should be considered only after a prolonged period of incompatibility between the husband and wife. It should not be used to resolve a heated argument. Such words uttered in a moment of anger cannot be valid as extreme anger is insanity.
- Some believe that talaq during menstruation is not valid. Most jurist, however, consider it to be a valid talaq. (Imam Abu Hanifah, Imam Malik, Imam Shafi and many others) Talaq according to sunnah is given during the period between the menses when the husband did not have sexual relations with his wife. Hazrat Abdullah Ibn Umar divorced his wife while she was menstruating. Hazrat Umar (ra) asked the Holy Prophet (saw) about this. The Holy Prophet (saw) said, “Ask your son to take her back. Then let a full period of purity pass until she is menstruating again. When she is clean again, then he can divorce her if he so wishes, before having relations with her.” (Muslim, Kitab al-talaq) Based upon this hadith the above mentioned jurists believe that the talaq during menstruation will be counted as one talaq, but the husband will be required to take the wife back according to the principal mentioned in the hadith. He can divorce her during the subsequent period of purity between the menses before having relations with her.
Talaq given during menstruation is considered invalid. The limited time during which talaq can be given slows down the process and provides an opportunity for reflection and reconciliation.
- Since talaq during the period of purity is valid, most jurists have concluded that the talaq during pregnancy is also valid. (Imam Abu Hanifah, Imam Ahmad ibn Hanbal, Imam Shafi and many others) Imam Malik, however, considers it to be prohibited. The iddat of such a divorce will be until the conclusion of the pregnancy.
- Wife has to be aware of talaq either verbally or in writing. Talaq has to be documented by at least two witnesses. (Holy Quran. Ch. 65 verse 3). In common practice a husband can pronounce talaq to his wife without any witnesses and it is still considered valid because of husband’s word. But according to the Holy Quran, talaq cannot be valid until it is documented by two witnesses other than the husband. In older times, scribes and written documentation were not common. In the present day, however, when everything is done within a legal framework by written documentation, talaq should be given with a written document signed by the husband in the presence of two witnesses and delivered to the wife with proof of delivery.The period of ‘Iddat’ will start from that point.
Types of Divorce
There are three types of divorce.
The word “raj’i” means to return. The divorce is not final immediately. It is a process which starts with the husband giving the divorce to his wife. At this point the period of iddat starts. During this time the divorce is pending. The wife cannot marry another man until this period is over. The period of iddat is three menstrual cycles of the woman. During this time the husband has the right to revoke the divorce and take his wife back with her consent. Whether the husband takes his wife back or not, this divorce will be counted as one divorce.
It means that the process of divorce is prolonged. The husband has the time to reconsider his actions and reconcile with the wife. If he decides to get back with her before the duration of “iddat” is completed, he can do so without any additional requirements.
If the woman is pregnant then the duration of iddat will be until the pregnancy is completed. During the period of iddat the husband has the right to take her back as his wife. (Holy Quran, Ch. 2, verse 229)
It should also be noted that during the period of iddat the wife lives in the same house as her husband. She cannot be forced to move out of that house by the husband nor can she leave on her own accord. (Holy Quran. Ch. 65 verse 2). The husband is responsible for her upkeep and expenses as before. Only after the iddat is completed and there is no reconciliation, the wife will move out from the husband’s house. If the wife owns the house then the husband will have to move out.
This is the second type of divorce. The divorce is effective immediately. In this divorce the husband still has the ability to reconcile but with some conditions. He has to do another “nikah” with the woman, with her consent. This type of divorce happens in the following circumstances:
- When the husband divorces his wife after nikah but before consummation of the marriage.
- Or if he divorces the wife in return for money or other benefit.
- Or if the duration of iddat has passed after the divorce (talaq-e-Raj’i) and the woman is still available.
- Or there was some deficit in the conditions of the nikah and it was considered defective.
In all these circumstances, the husband can return to his wife only with a new nikah with her consent.
This is the divorce which is final and permanent. After this divorce there is no possibility of reconciliation even if both the husband and the wife agree. This type of divorce happens in the following circumstances:
- After the second talaq and reconciliation if the husband divorces the wife again for the third time, this divorce will be considered final.
- After a husband accuses his wife of adultery and goes through the procedure of “Li’an’ (meaning the husband makes God his witness before the judge and swears three times that his wife is an adulterous woman and he is not the father of her child) A final divorce will be immediately effected between the two. This divorce will be talaq-e-Battah.
After nikah with a woman, the husband can divorce her at the most three times. The third divorce is final and cannot be revoked. No reconciliation is possible.
The Process of Divorce
The jurists have different views about how the husband can divorce his wife.
- The first view is that the husband has the option of divorcing his wife either one divorce at a time or he can give all three divorces at the same time. He has the control. If he gives all three divorces at the same time then this divorce will be final and cannot be revoked. (Fiqah Hanafi)
- The second view is that the husband can divorce only once during the period of purity in the menstrual cycle of the wife. In her next cycle he can divorce her again for the second time and then the third time in the third cycle. This third divorce will be final and no reconciliation will be possible.
- The third view is that the right of husband to divorce his wife is restricted. He can only give one divorce at a time. Once the divorce is given, he can take the wife back during the period of iddat. If the period of iddat has passed, he can do a new nikah with the woman with her consent, if she is still available. If this process of reconciliation is completed it will be counted as only one divorce. It does not matter how many times the husband had pronounced divorce it will be counted only one. (FiqahAhmadiyya)
After reconciliation if he divorces her again, this would be counted as the second divorce. Once again the entire process has to play out fully. The husband can take the wife back during the period of iddat without any conditions or do a new nikah if the iddat has passed. This divorce will be counted as the second divorce.
If this happens again and the husband divorces the wife again, this will be the third divorce. It will be considered Talaq-e-Battah. It will become effective immediately and will be final. The husband will not have the right to reconcile either during the period of iddat or after it. After completion of the period of iddat the wife will be free to marry anyone except the previous husband.
The third view is more close to the instructions of the Holy Quran. Allah says in the Holy Quran, “Divorce is permitted twice. After this either you should retain them with equity or let them go graciously.” (Holy Quran, Ch. 2, verse 230)
Following incidence during the time of the Holy Prophet (saw) explains the concept of three divorces with some clarity.
A companion named ‘HazratRakana’ gave three divorces to his wife at the same sitting but then regretted. The matter was presented before the Holy Prophet (saw). He enquired how the three divorces were given. He said that all three divorces were given at the same sitting. The Holy Prophet (saw) said that this was only one divorce. You can reconcile. (Masnad Ahmad, Dar Qutni and Nil al-Autar)
It is a historical fact that in the time of the Holy Prophet (saw) and during the entire khilafat of Hazrat Abu Bakr (ra) and the initial period of Hazrat Omar (ra), this practice was followed. (Muslim, Kitab al-Talaq) In the latter period of Hazrat Omar’s (ra) khilafat, the regulation was changed due to the mischief of the people. This was a temporary prohibition and was punitive in nature. People had started giving multiple divorces at the same sitting as a joke or fun. This became a problem for the women. Hazrat Omar (ra) then instituted the rule that if anyone divorced his wife three or more time, a final divorce will become effective immediately. This temporary punitive measure became the basis of the misunderstanding of the Quranic instruction.
Hazrat Massih Maud (as) says, “If three divorces are pronounced at the same sitting the husband has been given the permission to do a new nikah even after the period of iddat has passed as this was an invalid divorce. It was not according to the instructions of God or the Prophet (saw). Study of the Holy Quran reveals that it is repulsive to God that long time husband and wife separate by abandoning their relationship. This is why He has placed significant conditions for divorce. Giving of divorce three times at intervals and living together in this period are all such matters, which can repair the break and bring about reconciliation. Allah says that the divorce is permitted twice. Then either keep her in an excellent manner or let her go with graciousness. If they do not reconcile in this prolonged time then it is not likely to happen.” (Al Hakam. April 10th, 1903)
Therefore, according to fiqahAhmadiyyah, the right of three divorces would be used either as two talaq-e-raj’i and one talaq-e-ba’in or three talaq-e-ba’in.
Proper Procedure of Divorce
A husband divorces his wife and reconciles during iddat. This would be one talaq-e-raj’i and counted as one divorce. If the duration of iddat has passed this would now be called talaq-ba’in. He can still get back with his wife by doing a new nikah if she is still available and with her consent. After this even with a new nikah his right to divorce the wife again is reduced to two, since he has already used it once before. If he divorces her again and reconciles during iddat, this would be again talaq-e-raj’i and counted as second divorce. If the duration of iddat has passed this would now be called talaq-e-ba’in. He can still get back with his wife by doing a new nikah if she is still available and with her consent. After this even with a new nikah his right to divorce the wife again is reduced to one since he has already used it twice before. If he divorces her the third time this would be talaq-e-battah meaning he will have no right to reconcile either during iddat or do a new nikah after iddat, since he has used the right of all three divorces.
So for the talaq-e-battah or final divorce it is necessary to have reconciliation between two divorces or nikah between two divorces. If this is not the case then only one divorce will be counted no matter how many times he says it.
Hadhrat Khalifatul Massih the Second writes, “Generally the scholars today believe that if divorce was pronounced three times it results in the final divorce. The wife cannot be married with him again unless she marries someone else. This is incorrect. It is clearly mentioned in the Holy Quran that the divorce is permitted twice, meaning the divorce which is not final can happen twice. It is when a husband divorces his wife and then takes her back and reconciles or does a new nikah after iddat has passed. Again due to dispute he divorces her a second time. Such divorce can happen twice. Giving divorce three times or more at the same sitting and considering it final is against the teachings of the Holy Quran. Only that divorce is final which is given according to the above sequence and three periods of iddat have passed. In this situation, nikah again is not permitted unless the woman marries some other man and is divorced by him too. In our country this type of divorce has become a joke and its remedy is found in the repulsive practice of ‘halala’. (Tafseer-e-Saghir.Sura Al-Baqarah. Verse 230)
Due to the misunderstanding of the sequence and timings of the divorce, some Muslims believe that all three divorces can be given at one time and will be effective. In their mind this results in immediate and final divorce. This concept has its basis in the interpretation of the regulations of divorce by some jurists as well as the temporary action of Hadhrat Omar (ra). Since divorce is usually given in a fit of anger, it is not uncommon for the husband to regret his decision later. Many wish to get back together with their wife again. In the correct interpretation of the regulations of divorce, no matter how many times a husband pronounces divorce it is counted as only one divorce. Period of iddat has to pass before the divorce is final. Since this is only one divorce, the husband has the time to think and weigh his decision. He has the option of taking back the divorce during iddat or do a new nikah with the wife and get back together again if the period of iddat has passed. These days Muslims have adopted the incorrect interpretation and it is common to see that all three divorces are enforced at the same time.
The Holy Quran says that if the husband has divorced his wife for the third time, they both cannot get back together again. The only exception is that after the third divorce, the woman marries someone else. If that husband also divorces the woman then she can marry her first husband again. (Holy Quran, Ch 2, verse 231) This permission of the Holy Quran has become the basis of the repulsive and sinful practice called halala. The Holy Prophet (saw) has condemned this practice and said that those who plan and participate in the scheme of halala are accursed by God. (Abu Dawood)
Proof of Divorce
Historically, if a husband verbally pronounces divorce to his wife, it has legal standing. In actual practice, however, the divorce has to have proof. It can be proven with the acceptance of both the husband and wife. But if there is dispute in the matter of divorce then legal proof is required.
For legal reasons it is necessary that divorce should be given in writing on a legal paper with the signatures of the husband and two witnesses. It should also be delivered to the wife with proof of delivery. If this proper procedure is not followed, many legal problems can happen. In Pakistan and some other countries it has been recorded that a husband gave divorce to his wife verbally. She understood it to be so and after iddat married someone else. The first husband filed a case against her under the Islamic hudood ordinance. The woman was unable to prove the divorce because there were no witnesses and no legal documentation.
After divorce many financial matters as well as matters of custody and alimony need to be sorted out. For all these reasons it is necessary that a written documentation of divorce should be created.
The Holy Quran directs the believers to record their transactions with a written document in the presence of witnesses. (Holy Quran, Ch. 2, verse 283) (Holy Quran, Ch. 5, verse 107-109) In case of divorce the Holy Quran specifically instructs to have two witnesses. (Holy Quran. Ch. 65 verse 3) Sincenikah and divorce are important legal matters and many financial transactions are associated with them, they must be recorded in writing in the presence of two witnesses.
Khula (Divorce given by the wife)
The dissolution of marriage is not just the right of the husband. A wife has the same and equal right. She can also initiate divorce. Just as the husband does not have to give any reasons for talaq, the wife also does not have to enlist any reasons for asking for khula. Mere fact that she does not wish to continue the marriage and is asking for dissolution is enough.
If both the husband and the wife are agreed upon ending their marriage, then the man can give talaq to the woman and the relationship can be severed. However, if the husband refuses to give talaq then the wife has the right to demand khula.
Process of Khula
The wife has to apply for khula in a court of law. She cannot pronounce divorce just as the husband can. Her request for granting of khula will be filed in a court of law and the judge will evaluate the application.
The reason for a different process in case of woman asking for divorce is as follows:
When a man gives talaq, it ends the relationship. Like any other legal process this should be recorded in a court of law by signing legal papers. It is necessary because after talaq there will be some other legal matters which will require a court’s intervention such as child custody, child support, and matters of alimony. So even as talaq can be given without intervention of a court of law, a legal process will still follow to deal with the fallout of the divorce.
In a wife’s case however, some of the financial matters have to be addressed prior to granting a divorce, such as the matter of dowry money. When a husband pronounces divorce, the wife is not obligated to return any dowry money she had received, nor is she required to return any other property or money and other valuables from her husband. In fact if the husband has not paid the dowry money he is obligated to pay it. But when a wife asks for divorce, she may be asked to return the dowry money before divorce could be granted. The judge also examines the case for any misunderstandings, misleading, coercion and such matters to ensure that the wife understands her rights and obligations, and to ensure that she is not being forced into this decision. In short the involvement of the judge in this matter is to ensure that the rights of the wife are protected.
Some people point out this difference and present it as discrimination against women. Nothing could be farther from the truth. Islam understands that a great majority of women live in societies where their rights can be denied and they can be forced into making wrong decisions due to social or family pressures. This is why a woman has been provided with a ‘Vali” or an advocate in all matrimonial matters to guard and protect her rights. But the final decision rests with the woman. Her guardian or advocate cannot do anything against her wishes. He is there only to present the choices for her and try to protect her interest just as a lawyer does for his clients. In normal circumstances the father of the woman is her guardian. But if the woman perceives injustice from her father she can ask the court to act as her guardian.
The basis of khula are mentioned in the Holy Quran, “And it is not lawful for you that you take anything of what you have given them (your wives) unless both fear that they cannot observe the limits prescribed by Allah. But if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom.” (Holy Quran, Ch. 2, verse 230)
The following incident in the time of the Holy Prophet (saw) describes various elements of khula.
“JamilahbintSalul came to the Holy Prophet (saw) and said, “I have no dispute about the righteousness and decent behavior of my husband but we both have different inclination and I hate him. I will not be able to fulfil his rights and will be counted among the ungrateful. So I may be granted separation from him.” The Holy Prophet (saw) asked, “Would you be willing to return the orchard he gave you as your dowry?” She replied, “Most certainly, even more than that!” The Holy Prophet (saw) said, “Just return the orchard and nothing more.” (Bokhari, Ibn Majah, Dar Qutni)
The following guidance can be derived from this incidence:
- As a husband has the right to divorce his wife, the wife has the same and equal right to divorce him through khula.
- It is necessary for the wife to get her wish through the court.
- In asking for divorce, the wife may have to return the financial benefit that she has received from her husband such as returning the dowry money as in this case.
- The husband may or may not agree with this severance of relationship, the court can still grant the divorce. If the wife asks for the divorce, the husband does not have the ability to deny it.
- The woman does not need a guardian or ‘vali’ while filing for the khula. The court acts as her guardian.
The function of the court in the matter of khula:
- To ensure that the wife wants to terminate the marriage. Nothing else is required. Mere wish of the wife and her demand of divorce is enough. (Nil al-Autar, Kitab al-Khula)
- If the court determines that the reason for wife’s demand of divorce is mistreatment of the wife by the husband such as domestic violence, verbal or emotional abuse, then the court has the right to grant divorce without assessing any monetary obligations on the woman. In fact the court can obligate the husband to pay the dowry money too. (Mauta Imam Malik, Kitab al-Talaq)
Other regulations of Khula
- The duration of iddat after khula is only one menstrual period or conclusion of pregnancy.
- Khula is considered “talaq-e-ba’in”. If both agree they can remarry with mutual consent. (Hidayah, Bab al-Khula)
- After talaq or khula the woman and man have no rights in the inheritance of each other.
There are some exceptional circumstances where special regulations would apply.
- Absent husband: The husband can disappear without any clue. One such example is when a husband goes abroad for education, employment or other reasons and loses all contact with the wife. He may have married again or he may be in jail for extended period of time and unable to make contact. He may even have died.
When a husband is absent for an extended period of time it can become a serious issue for the wife. She may have no financial support and certainly she has no companionship. Under such circumstances she has the right to apply for dissolution of marriage.
Jurists differ on the length of time before her request could be granted. Some have considered this period to be as short as one year while some others have extended it to ninety years. According to the FiqahAhmadiyyah, in the present day a minimum of two years should be mandated by the court. In consideration of circumstances the court can fix a different length of time.
Once the wife has been granted her request for the dissolution of marriage, after completing her iddat, (only one month or conclusion of pregnancy) she will be free to marry again. She will be the lawful wife of her new husband. If the previous husband comes back, he will have no right over her.
- Same rules will apply if the husband has been incarcerated for an extended period of time and wife wishes to marry again. The court can grant the dissolution of the marriage upon the request from the wife after careful consideration of circumstances.
- If the husband is impotent, has a communicable disease or chronically ill, the wife can apply for dissolution of marriage. After careful consideration of medical evidence and other circumstances court can grant the wife’s request and dissolve the marriage.
When a marriage is dissolved it is different from talaq or khula. The related financial matters such as dowry money, child custody, or alimony are decided according to circumstances by the court.
After divorce or death of the husband the wife is required to observe a period of time where she cannot marry again. This period is called iddat.
Allah says in the Holy Quran, “And the divorced woman shall wait concerning themselves for three cycles.” (Holy Quran. Ch. 2 verse 229). During this time the woman lives in the house of her husband as before. (Holy Quran. Ch. 65 verse 2). The wife cannot marry another person during this time. (Holy Quran. Ch. 2 verse 236). She spends most of the time in the house and can go out only if necessary. She also dresses simply and generally should not wear any jewelry. This is only to discourage other men to pursue her for marriage. In case of necessity the woman can go out of the house, work and take care of her daily activities.
The period of iddat varies in different circumstances.
- Iddat after talaq is three menstrual cycles. (Holy Quran. Ch. 2, verse 229)
- If talaq happened before the consummation of the marriage, then there is no iddat. (Holy Quran. Ch. 33, verse 50)
- If the wife does not get menstrual cycles, her iddat will be three months. (Holy Quran. Ch. 65, verse 5)
- If the wife is pregnant, her iddat is until the conclusion of the pregnancy. (Holy Quran. Ch. 65, verse 5). A pregnant woman’s iddat will always be conclusion of the pregnancy in every circumstance.
- If separation occurred as a result of khula, then the iddat is one menstrual cycle. If the wife does not get menstrual cycle, then the iddat is one month. (Tirmidhi, Kitab al-Nikah)
- Iddat after the death of the husband is four month and ten days or conclusion of the pregnancy. (Holy Quran. Ch. 2, verse 235)
Matters of Child Custody after Divorce
Once the marriage has failed and separation between the wife and husband has occurred either by talaq or khula the matter of child custody has to be decided. The underlying principal in this matter is that no parent should be made to suffer in the matter of his or her child. (Holy Quran. Ch. 2, verse 234) But exactly how this matter will be decided has been left open.
The term child custody means the right to the guardianship of the child and the responsibility of his caretaking. This is a temporary right until the child grows old enough. This right is separate from the guardianship of the father.
Almost universally the courts will take into account the wellbeing of the child as the basis of awarding custody. This is also the case with the jurists in Islam. The custody of an infant or a very young child is always given to the mother unless there is a problem.
Once child becomes older the opinion changes. Some jurists believe that a male child should be returned to the father at age two. Others think this age is seven. In case of a female child some jurists believe this age is seven while others think it is puberty. According to fiqahAhmadiyya the age when the child should be returned to the father is nine years in case of both male and female child.
If the custody of the children can be decided with mutual consultation of the father and the mother, this is best. But almost always a court will decide this matter as the parents will not be able to agree. The primary concern of the court is the welfare of the child. Court has flexibility and authority to decide this matter in the best interest of the child. This includes the visitation rights of the non-custodial parent.
Guardianship of the child
According to the Islamic principal father is the guardian of the child, since he is the head of the family. This will be true in all cases unless there is an exception. Being head of the household father is also responsible for the upkeep of his children no matter who has the custody. So he will be providing child support according to his income and means. (Holy Quran. Ch. 2, verse 234). If mother has the custody of the child, father is still the decision maker in important matters of child’s upbringing such as education, and moral training. If father is delinquent or his decisions are outrageous, mother has the recourse through the court.
Mother is the first custodian for an infant or very young child. This is keeping in mind the best welfare of the child. If the mother is not fit for some reason such as physical disability or mental illness then the custody will be granted in the following order: Maternal grandmother, paternal grandmother, maternal great grandmother, paternal great grandmother, sister, or maternal aunt. If none of these relatives are available, then the custody will be decided according to the closeness of the relationship. Of course in the absence of any relatives the state will be the ward of the child.
Termination of Custody
Once the custody of the child is granted it is not permanent. A significant change in the circumstances will be the basis of reconsideration by the court. If a mother had the custody and she remarries, this would be considered a significant change. It does not mean that the custody will be revoked. It only means a review. The jurists have differed in this matter. Some think that if mother marries a close relative of the child then there is no need for a review, while others think that marrying a non-relative of the child should necessitate a review.
In the time of the Holy Prophet (saw) a child’s maternal aunt had his custody. She married a non-relative of the child. The Holy Prophet (saw) still awarded her the custody as the husband was willing to take the responsibility of the child. (Nil al-Autar)
This shows that there is no fixed rule for child custody. The welfare of the child is the prime objective.
Once the child reaches the age of 9, he still needs to live with one of his parents. But now the child also has a say in it. It is assumed that the child has gained some insight into his situation. Nevertheless the underlying principal of welfare of the child would still apply. The court will make the determination if the child’s wishes can be accepted or not.
Alimony for the Wife
After divorce, during the time period of iddat, the wife is required to stay in the house of her husband and the husband is required to provide for her expenses as before. (Holy Quran. Ch. 65 verse 2).
After divorce if the wife has the custody of the children then the husband will be providing for his children and wife for the period of custody. (Holy Quran. Ch. 2, verse 234)
At the time of divorce if the wife had not been paid the dowry money this will become due immediately.
Wherever in the Holy Quran, the subject of divorce is discussed, Allah always advises benevolence towards the women. It is clearly said that those women who have been divorced should be provided benefit in fairness. (Holy Quran. Ch. 2, verse 242). This benefit could be a one-time payment or divided payments over a period of time. Legislature has the duty to legislate in this matter and courts will apply the law keeping in mind the welfare of the husband and the wife both.
The Holy Quran directs the husband and wife to make every effort to maintain the relationship between them. It provides guidance in case of a breach in this relationship. It also provides advice in resolving the matters after divorce. Generally after a divorce both parties are very bitter and angry. Allah wants them to be amicable and equitable towards each other. If we follow the guidance of the Holy Quran, many divorces can be avoided. If divorce happens then the bitterness and animosity can be reduced. The financial matters and the matters related with child custody and care could also be resolved cordially.