07 Jul Does a woman have the right to initiate divorce in Islam? [yes]
Does a woman have the right to initiate divorce in Islam? [yes]
salam. i have a question regarding divorce in islam. why does the right to divorce is with the husband only and not the wife. I understand that the wife has the right to “annul” the marriage, but ultimately the action of divorce in itself lies with the husband. But let’s say the husband, out of hate to his wife, decides to keep her hanging, and refuses to divorce her, shouldnt the wife be able to divorce her husband in this case?
Wa alykum as-salaam,
I had originally written a very lengthy and verbose reply to your question. I have just accidentally deleted it to my great consternation. If I seem somewhat annoyed in my reply, it is because of the loss of my work, rather than at your question; I am deeply sorry.
First, to say that Islam only allows divorce if initiated by the husband, this would be a highly inaccurate statement.
In this regard, we must understand that the differentiation between the schools of law are not just differences in the simplistic procedures of whether activity X or Y is haram (impermissible) or makrooh (disliked), but their differentiation is made relevant by the very procedures that defined everyday interactions within societies: remember, these were the procedures of the judicial system of societies, these procedures changed lives, this wasn’t about how to avoid gelatin.
Therefore, we must establish what the differences are between the schools, and by-and-large, of the schools, the Hanafi positions is the most stringent and narrow in terms of providing women the right to initiate divorce. Again, this does not mean women cannot initiate divorce within the Hanafi school, rather, it is the most difficult.
Of the other schools, the Maliki is the most liberal, followed by Shafi’i and Hanbali. Questions of Jaafari Fiqh regarding this matter are far more complicated because despite the general procedures afforded within Jaafari Fiqh, the role of the individual Faqih and the increased latitude granted to them within the tradition means that you can get even more divergent views than we will see within the Hanafi tradition.
Now, why am I focusing on the Hanafi tradition? Because due to the Hanafi school’s status as the official madhab of the Ottoman Empire and being the nearly undisputed school of South Asia due to the work of Ahmad Sirhindi, the Hanafi rules have become rather synonymous with Islam’s rules in many Muslims’ minds. However, there is a distinct differentiation between Hanafis regionally, where the Hanafi tradition used in modern-day Pakistan was arguably more stringent than the Hanafi tradition used in modern-day Turkey.
What does this mean? That when you hear someone say “Hanafi say this…” you should think, “okay, which Hanafis?”
Remember that Islamic Law (Shariah) is a common law system, which means that what is established as law, as the procedures of the law, are distinct to each place and time, so what was considered Hanafi at one time and in one place is not necessarily the case across the board. Do not get me wrong, there are many things where you can say that a certain school does something in general, but, I raise this issue to underline that there are differences between schools of law, and more importantly, even within the schools themselves.
So, what is divorce then? There are two types, Talaaq and Khula. When you boil them down to it, they are different types of divorce as initiated by different spouses, so Talaaq is generally used by men while Khula is used by women. This differentiation, despite all the noise you may read or hear, is rooted in financial transactions.
If a woman initiates divorce from her husband, utilizing Khula, she forfeits her right to her Mahr, which is not a “dowry” as much as much as a financial safeguard for the marriage given to the woman. If a man initiates divorce from his wife, utilizing Talaaq, he forfeits his claim to the Mahr he paid to her.
Now, just to be clear, let us go over where in The Qur’an and Sunnah we can prove this:
For men not being able to take back Mahr if they initiate the divorce, we have the following ayah of The Qur’an:
“…And it is not lawful for you to take back anything of what you have ever given to your wives unless both [partners] have cause to fear that they may not be able to keep within the bounds set by God: hence, if you have cause to fear that the two may not be able to keep within the bounds set by God, there shall be no sin upon either of them for what the wife may give up [to her husband] in order to free herself. These are the bounds set by God; do not, then, transgress them: for they who transgress the bounds set by God – it is they, they who are evildoers!” [2:229] Muhammad Asad
The central proof for women who initiate divorce (and that they can) is found in the Hadith, where in the collection of Bukhari we have the following Hadith:
The wife of Thabit bin Qais bin Shammas came to The Prophet (peace be upon him) and said, “O God’s Messenger! I do not blame Thabit for any defects in his character or his religion, but I am afraid that I (being a Muslim) may become unthankful for God’s Blessings.” On that, God’s Messenger (peace be upon him) said (to her), “Will you return his garden to him?” She said, “Yes.” So she returned his garden to him and The Prophet (peace be upon him) told him to divorce her.
Therefore, a woman who initiates the divorce forfeits her claim to those financial mechanisms, with obvious exception given to the maintenance of children.
Many jurists affirmed this equality by citing this ayah:
“…in accordance with justice, the rights of the wives [with regard to their husbands] are equal to the [husbands’] rights with regard to them” [2:228] Muhammad Asad
Granted, the following part of the above ayah refers to men having precedence, but this deals with the ability to initiate a reconciliation when in the process of divorce, although again, this is a debated issue, where many jurists believe that this statement, in itself, is applicable outside of the specific bounds of reconciliation and divorce.
Granted, the procedures between the two forms of divorce are different, but this is rooted in the financial incentives that were present in specific societies at certain times. However, whatever procedures were used, every school of law, without exception, provided women the right to initiate divorce, the issue was the window for women to do so and in this regard Hanafi Fiqh–generally speaking–did not provide a very large window.
When jurists who wanted to reform the legal requirements in places where the Hanafi tradition was established, they would use takhayyur or “selection” in which people were permitted to used the legal opinions of other schools, thus, reform occurred (past tense) utilizing this method within the Hanafi tradition using the Maliki rulings.
So while we have established, without doubt, that divorce may be initiated by a woman in Islam and that the issue is how broad this right was, rather than a distinct absence of the right, which was narrow particularly in the Hanafi tradition, let us cover the topic of a husband being, well, a bad husband:
Even in the Hanafi tradition, a husband who would deny his wife her rights could be divorced (by the wife), for instance, during Ottoman times, if a woman (wanting to divorce a bad husband) went in front of a judge (Qadi) with two witnesses and said her husband declared that he divorced her, even when he was drunk, she would be granted her divorce, keeping her Mahr, as the husband could–usually–not be able to deny such a claim.
However, according to the Maliki school, in dealing with a bad husband, a wife may divorce her husband for: 1) cruelty; 2) refusal or inability to maintain her; 3) desertion; and/or 4) serious disease or ailment that would make continuance of the marriage harmful to the wife.
The Shafi’i and Hanbali schools have rather similar rubrics, and while the Hanafi rubric is far more constrained, even within the Hanafi tradition when a husband is not fulfilling his duties, that provides a woman with ample reason to divorce her husband.
Therefore, because we have gone over the fact that women may initiate divorce, that there are differences between the schools, but that even with those differences, women may initiate divorce, and that even in the narrow confines of the Hanafi tradition this did not mean that men can abuse their wives through their (in the Hanafi tradition) increased leverage in terms of divorce.
Insha Allah, I hope this made sense, and I apologize, again, for any rudeness I displayed herein.
I pray this reaches you and your families in the best of health and Iman, insha Allah.