“And consort with your wives in a goodly manner; for if you may have a feeling of dislike toward them, it may be that they have such a feeling toward someone whom God might yet make a source of abundant good…And if then they respect you (and the family relation), do not seek any way (to proceed) against them. Behold, God is indeed the Most High; Great (above you all).”
(Quran 4:19, 34)
Marriage is a consenting contract based on the mutual agreement of the two spouses. It does not require special formalities in Islamic Law, but it has its religious importance as a fulfillment of the human nature as created by God (Quran 30:21), which comes out in a unique physical, psychological and legal relation that the Quran describes as a
“most solemn pledge or covenant”
(Quran 4:21).
According to the Prophet Muhammad’s words, the woman’s agreement is essential for the marriage, and her parents or others cannot impose on her to marry anyone whom she does not like to marry. Besides, unlike other religious practices or legal systems, it is the husband’s obligation in Islam to pay a dowry to the wife:
“…And unto those with whom you (believing men) desire to enjoy marriage, you shall give the dowry due to them; but you are allowed after (having agreed upon) this lawful due, to freely agree with one another upon anything else: behold God is indeed all knowing, all-wise.”
(Quran 4:24, see also 4:4)
This dowry becomes the full possession of the wife, and her husband cannot claim it back in case of divorce:
“But if you desire to give up a wife and to take another in her stead, do not take away anything of what you have given the first one, however much it may have been. Would you, perchance, take it away after you have given yourselves to one another, and she has received the most solemn and serious pledge from you!”
(Quran 4:20-21)
However, if the divorce occurs before any sexual relation, the wife stilly enjoys the right on half of the dowry that the husband previously agreed upon unless she forgoes her right on the half, or the ex-husband forgoes his right on the other half and decides to leave for her the dowry in full
(Quran 2:237).
For a divorce before fixing any dowry, a provision should be offered for the divorced women by her ex-husband:
“(In such a case) make provision for them- the affluent according to his means, and the straitened according to his means-a provision in an equitable manner this is a duty upon all who would do good.”
(Quran 2:236)
In Islamic law, a prerequisite for marriage is the husband’s ability to provide what is needed for a decent and comfortable life. However, because marriage is a human necessity and a religious duty, Islamic Law hold the Islamic state responsible for facilitating marriage. Besides securing work with fair wages and conditions for everyone, the state should offer material assistance to the married couple (e.g. financing, housing, etc.) when this is deemed necessary.
While Islamic law protects family relations between husband and wife and maintains clearly the rights and obligations of each partner, Islamic teachings nurture this relationship with love and tenderness, as previously mentioned (Quran 31:21). Islam teaches that a morsel of food that a husband may put in his wife’s mouth in a happy moment or when she is too busy to care about eating is a good deed that is urged and rewarded by God. Marriage has to fulfill nature relationship between man and woman in all its dimensions, and both have to care about one’s physical appearance and appeal to one another, as well as the psychological compliment of another.
The material and moral harmony in the family life is stressed in the Quran in concentrated impressive words such as
“consorting one another in a goodly manner”
(Quran 4:19)
or in this simple and touching allegory:
“ they (the wise) are garment for you (husbands), and you are garments for them.”
(Quran 2:187)
In spite of the full equality of men and women as individuals and as spouses, it is fair to make the man primarily responsible for sustaining his wife during the pregnancy and subsequent natal care. It is a responsibility and a duty, and not superiority or a privilege:
“Men shall take care of women with what God has bestowed on the former and with what they have to spend of their possessions.”
(Quran 4:34)
Equal rights and mutual responsibilities of husband and wife should be practiced in an acceptable way and without bitterness. In this regard the husband has more responsibilities that he should fulfill with kindness and generosity:
“And the rights of the wives (with regard to their husbands) are equal to the obligations that they have (toward their husbands), but men have a precedence (in responsibilities).”
(Quran 2:228)
Motherhood
Children should realize how dedicated their mothers were in bearing and raising them in their childhood:
“And God says: We have enjoined upon a human being goodness toward his/her parents; one’s mother bore him/her by bearing strain upon strain, and the child’s utter dependence on her lasted two years: (hence, O people), be grateful toward Me and toward your parents, (and remember that) with me all journey ends.”
(Quran 31:14)
The slightest offense to the parent by any word or gesture is against the teaching of the Quran (17:23-34). The Prophet put the mother before the father in relation to kindness that children should show toward each of them. Even when the parents are not believers, and try to persuade believing children to follow them, the children must stick to their faith without hurting their parents’ feelings or degrading them:
“Yet should they (the parents) endeavor to make you ascribe divinity side by side with Me to any that your mind cannot accept (as divine, obey them not: but even then) bear them company this world’s life with kindness.”
(Quran 31:15)
Emerging Differences
Divorce should not be the first resort when any difference between a couple emerges. Different attitudes and views are natural, and any group - including the family- should learn how to settle its differences peacefully. Islam teaches that marriage should be maintained as long as the essential requirement of a peaceful family life and mutual care and respect are there, even if emotions are romance may not be as strong as they were before:
“And consort with your wives in a goodly manner; for if you may have a feeling of dislike toward them, it may be that they have such a feeling toward someone whom God might yet make a source of abundant good…And if then they respect you (and the family relation), do not seek any way (to proceed) against them. Behold, God is indeed the Most High; Great (above you all).”
(Quran 4:19, 34)
If differences and difficulties continue, the couple or their families have to seek mediation:
“And if you have reason to fear that a breach might occur between a (married) couple, appoint an arbiter form among his people and an arbiter from among her people; if both want to set things right, God will cause their reconciliation. Behold, God is indeed All-knowing, Aware.”
(Quran 4:35)
When the situation deteriorates and no solution can be reached by arbitration, divorce should follow a fair procedure. Islamic Law says that women should not be divorced during a momentary anger, nor during her menstruation when the physical sensitivity may cause tension. A husband can initiate a divorce, since his initiative implies his full responsibility for bearing the legal and financial consequences of sustaining the divorced women and their children. Nevertheless, the court may be necessary to settle differences between the two parties about specifying these obligations.
When a woman wants to initiate the divorce, the husband’s responsibility has to be judged, since he may have nothing to be blamed for in causing the divorce, and accordingly it is fair to let the court decide the due alimony that the ex-husband has to pay and his other financial obligations and the children’s custody in such a case. When he does not initiate the divorce, therefore, his admission of full responsibility and obligations cannot be implied and has to be discussed and assessed by the court.
In this way, deciding on a divorce on the husband’s initiative without going to the court is not a privilege, but an admission of full financial obligations by the husbands in general, though he may have to go to court in order to argue for the specifies if he cannot agree on them with his wife. However, a state can make it mandatory that divorce should be formalized only in court according to the request of either spouse, so that it may be known and become effective for everybody, while all the subsequent issues of custody and alimony may be decided in the same time without further delay.
A divorced woman must wait for a specified time before she can remarry, as the broken marriage may have a chance of survival when every party thinks quietly during the waiting period after the first or second divorce from the same spouse. Besides, the ex-wife may be pregnant, and this may have its effect on the feeling and thinking of the ex-husband as well as a new marriage. Meanwhile, the ex-husband is urges to restore the marriage during this waiting period.
“And the divorced women shall undergo, without remarrying, a waiting period of three monthly courses, and it is not lawful for them to conceal what God may have created in their wombs if they believe in God and the Last Day. During this period, their husbands are entitled to take them back it they desire reconciliation….”
(Quran 2:228)
Even after the waiting period, the marriage can be restored for a second or third time, if the woman is still unmarried and is willing to try again with the same husband. A third divorce after having three periods of marriage experience means that marriage is unlikely to survive. Therefore, no resumption of the marriage between the same partners is allowed, unless the ex-wife tries a new marriage with another husband, through which she and her former husband may realize that what keeps the ex-spouses together is stronger than all their differences. After a new marriage with another husband for the women who was divorced three times from her ex-husband, another marriage between the previous spouses can take place again. In any case, maintain the marriage or resuming it should be a fair decisions by mutual agreement, not something imposed on the women by any pressure or injustice:
“A divorce may be (revoked) twice, upon which the marriage must either be resumed in fairness or dissolved in good manner.”
(Quran 2:229)
“And so, when you divorce women and they are about to reach the end of the waiting-term, then either retain them in a fair manner or let them go in a fair manner. But do not retain them against their will to hurt them: for he who does so sins indeed against himself…And when you divorce women, and they have come to the end of their waiting-term, hinder them not from marrying other men if they have agreed with each other in a fair manner. This is an admonition unto every one of you who believe in God and the Last Day…”
(Quran 231-232)
