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Talaq (Nikah)
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A Talaq is the Islamic term for divorce and is used to end a marriage, or Nikah .
The rules for talaq vary among the major Islamic schools of jurisprudence. Most importantly Shia and Sunni Muslims have different rules for performing a talaq. Sunni practice requires no witnesses, and allows a husband to end a relationship by saying the triple talaq. Shi'a scholars view the triple talaq as a jahiliyya ("pagan pre-Islamic") custom, forbidden by Muhammad, but reinstated by Umar ibn al-Khattab, and thus haraam ("forbidden").
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A Talaq is the Islamic term for divorce and is used to end a marriage, or Nikah .
The rules for talaq vary among the major Islamic schools of jurisprudence. Most importantly Shia and Sunni Muslims have different rules for performing a talaq. Sunni practice requires no witnesses, and allows a husband to end a relationship by saying the triple talaq. Shi'a scholars view the triple talaq as a jahiliyya ("pagan pre-Islamic") custom, forbidden by Muhammad, but reinstated by Umar ibn al-Khattab, and thus haraam ("forbidden"). Sunni scholars agree to the facts, but deem it halal ("acceptable") anyway. Some Sunni countries have debated whether the triple talaq can be performed with the help of modern technology such as by text message.
In some Sunni schools of jurispurdence it is possible for a woman to petition a qadi ("judge of Muslim jurisprudence") for a divorce under certain conditions. In a very few circumstances, Shafii qadis will allow a woman a divorce.
Shi'a practice requires two witnesses followed by the iddah period where the couple are supposed to try to reconcile with the help of mediators from each family. If the couple breaks the idda, the talaq is voided.
Since Shi'a view the talaq as a procedure stemming from a conflict rather than a decision, they do not use the procedure to end a Nikah Mut'ah, or temporary marriage. The Shi'a just annul the nikah mut'ah at the end of the period, without any talaq procedure being involved, since there is not necessarily a conflict to resolve.
After the idda is over, the couple is divorced and the husband is no longer responsible for the wife's expenses.
Implication
Divorce is allowed in Islam, but it should not to be sought readily. Muslims believe that divorces can cause deep emotional scars in the couple, and also reduce the possibility that any children will have an optimal upbringing. It also causes stress for couples' relatives and hence weakens the fabric of society. In the Sunni tradition, it is said that "divorce without a valid reason shakes the throne of God".
Rules
Shi?a and Sunni have different rules to engage a talaq. The talaq has three steps:
- Initiation
- Reconciliation
- Completion
Initiation
This is the stage where the talaq process is initiated.
According to most Sunni scholars it consists of:
- The husband saying talaq three times in the presence of his wife.
According to most Shi?a scholars:
- Making a public announcement that you are starting the divorce process.
- Does not allow the triple talaq
The appropriate verses from the Qur'an are:
- Sura 65.1 (partial) translated by Shakir
- O Prophet! when you divorce women, divorce them for their prescribed time, and calculate the number of the days prescribed, and be careful of (your duty to) God, your Lord...
- Sura 2.228 (partial) translated by Shakir
- And the divorced women should keep themselves in waiting for three courses; and it is not lawful for them that they should conceal what God has created in their wombs, if they believe in God and the last day...
Reconciliation
- According to Sunni and Shi?a jurisprudence, the couple is supposed to try to reconcile during the iddah period, with the help of mediators from each family. If the couple breaks the iddah by engaging in sexual intercourse, they are deemed to have been reconciled and the talaq is voided.
The appropriate verses from the Quran are:
- Sura 4.35 translated by Shakir
- And if you fear a breach between the two, then appoint judge from his people and a judge from her people; if they both desire agreement, God will effect harmony between them, surely God is Knowing, Aware.
- Sura 65.1 (partial) translated by Shakir
- ...Do not drive them out of their houses, nor should they themselves go forth, unless they commit an open indecency; and these are the limits of God, and whoever goes beyond the limits of God, he indeed does injustice to his own soul. You do not know that God may after that bring about reunion.
Completion
After the completion of the talaq procedure, the couple are divorced, the husband is no longer responsible for the wife's expenses and she becomes non-mahram for him and so they must observe the hijab rules.
- Sunni scholars view a talaq initiated and completed by the husband saying the triple talaq.
- Shi?a scholars understand that when the ?idda is over, the talaq procedure is completed. Two witnesses are required to witness the completion of the talaq.
The relevant parts of the Qur'an are:
- Sura 65.2 translated by Shakir
- So when they have reached their prescribed time, then retain them with kindness or separate them with kindness, and call to witness two men of justice from among you, and give upright testimony for God. With that is admonished he who believes in God and the latter day; and whoever is careful of (his duty to) God, He will make for him an outlet.
- Sura 2.231 translated by Shakir
- And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits, and whoever does this, he indeed is unjust to his own soul; and do not take Allah's communications for a mockery, and remember the favor of God upon you, and that which He has revealed to you of the Book and the Wisdom, admonishing you thereby; and be careful (of your duty to) God, and know that God is the Knower of all things.
Aftermath
- If the wife is divorced for the third time, then she becomes "haram" for her former husband. Otherwise, the couple would be able to remarry.
- Even if divorce separates a man from his wife, he has to seek her help in caring for the child or another female if the mother agrees. He must pay for her expenses.
In practice:
- In most Islamic states it is generally unacceptable for a divorced woman to live alone (as is usually also the case with unmarried women). In most situations women who find themselves divorced will return to live with their parents or to the household of another close relative.
The relevant part of the Qur'an is:
- Sura 2.232-3 translated by Shakir
- And when you have divorced women and they have ended their term (of waiting), then do not prevent them from marrying their husbands when they agree among themselves in a lawful manner; with this is admonished he among you who believes in God and the last day, this is more profitable and purer for you; and God knows while you do not know.
- And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckling; and their maintenance and their clothing must be borne by the father according to usage; no soul shall have imposed upon it a duty but to the extent of its capacity; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir, but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wet-nurse for your children, there is no blame on you so long as you pay what you promised for according to usage; and be careful of (your duty to) God and know that God sees what you do.
- Sura 2.235 translated by Shakir
- And there is no blame on you respecting that which you speak indirectly in the asking of (such) women in marriage or keep (the proposal) concealed within your minds; God knows that you win mention them, but do not give them a promise in secret unless you speak in a lawful manner, and do not confirm the marriage tie until the writing is fulfilled, and know that God knows what is in your minds, therefore beware of Him, and know that God is Forgiving, Forbearing.
- Sura 2.241 translated by Shakir
- And for the divorced women (too) provision (must be made) according to usage; (this is) a duty on those who guard (against evil).
After divorce, Qur'an specifies responsibilities on divorcee and divorcer on behalf of their children. Qur'an also prohibits interventions from the previous husband in the divorced woman's life.
Following are some of the cases regarding child custody decided by Muhammad:
- Abd-Allah ibn Umar narrates that a lady came to Muhammad and said: "For this son of mine, it is only my belly which was his abode, and my breasts which were his vessel and my lap which was his dwelling place. Now his father has divorced me and wants to take him away from me." Muhammad replied, "You are more entitled to keep him until you marry again." Sunnan Abu Dawood 2276
- Abu Hurairah narrates that in a woman came to Muhammad and said, "My husband wants to take away from me this child even though he has brought over water for me from the well of Abu ‘Anbah and given me a lot of benefit." Muhammad replied, "Both of you can cast a lot on this." When the husband heard, he said, "Who will quarrel with me regarding this son of mine?" Muhammad said, "O son! This is your father and this is your mother; grasp the hand of the one you want to hold." The child grasped the mother's hand and she took him away. Sunnan Abu Dawood 2277
Talaq in Muslim society
In contrast to the Western world where divorce was relatively uncommon until modern times, and in contrast to the low rates of divorce in the modern Middle East, divorce was a common occurence in the pre-modern Muslim world. In the medieval Islamic world and the Ottoman Empire, the rate of divorce was higher than it is today in the modern Middle East. In 15th century Egypt, Al-Sakhawi recorded the marital history of 500 women, the largest sample on marriage in the Middle Ages, and found that at least a third of all women in the Mamluk Sultanate of Egypt and Syria married more than once, with many marrying three or more times. According to Al-Sakhawi, as many as three out of ten marriages in 15th century Cairo ended in divorce. In the early 20th century, some villages in western Java and the Malay peninsula had divorce rates as high as 70%.
In practice in most of the Muslim world today divorce can be quite involved as there may be separate secular procedures to follow as well. Usually, assuming her husband demands a divorce, the divorced wife keeps her mahr, both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child's custody will be settled by the couple or by the courts.
Women's right to divorce is often extremely limited compared with that of men in the Middle East. While men can divorce their spouses easily, women face a lot of legal and financial obstacles. For example, in Yemen, women usually can ask for divorce only when husband's inability to support her life is admitted while men can divorce at will. However, this contentious area of religious practice and tradition is being increasingly challenged by those promoting more liberal interpretations of Islam.
In Egypt, men are favored by the law in divorce. If a woman leaves her husband without his consent, she might be filed charges under Egypt's "obedience laws," and would lose alimony upon divorce. While men are not required to convince in a judicial court for divorce, women must resort to legal action, and are required to abandon all rights to the couple's finances and to repay their dowries.
In Lebanon, women who suffered from domestic violence must provide testimony of an eyewitness, in addition to a medical certificate from a doctor documenting physical abuse to sue for divorce. This is the situation in Egypt as well.
In Syria, article 91 of the personal status code grants men right to divorce without providing any specific reason, and men only notify the divorce to the government. On the other side, women usually can initiate discussion about divorce only when their husband's inability to support them is admitted. To receive alimony, a woman needs to prove inability to live on her own. When women seek to divorce, she must file charge and provide specified legitimate reason. Although consensual divorce and khol are also available, in this case women must repay him the dower.
In Saudi Arabia, women must prove the ability to pay compensation as well as their spouse's violence.
See also
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