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Table of Contents – Laws of Islam Concerning Women and Men

 

 

Laws of Religion

Laws of Islam Concerning Women and Men

 

9.  Divorce

from the Qur’an,

major hadith collections

and Islamic jurisprudence

 

 

Divorce

        From the Qur’an

 

According to the Qur’an, after the husband makes two pronouncements of divorce, either the wife must be taken back honorably or released from the marriage in kindness.[1] (Thus a divorce is finalized by three pronouncements.)

 

The Qur’an says that when a man divorces his wife, it is unlawful for him to take back from her anything that he has given to her. A woman may be released from a marriage by giving something to her husband when there is fear that they may not be able to stay within the limits set by Allah.[2] The Qur’an (4:128) says that if a woman is afraid that her husband may treat her badly or leave her, it is no blame on them if they reconcile. Such reconciliation is best.[3]

 

When a man decides to replace his wife with a new wife, he should not try to recover any of the divorced wife’s bridal payment (mahr^*) by slandering her or otherwise.[4] A man should not try to get part of his wife’s bridal payment (mahr) back by treating her harshly unless she commits an act of flagrant indecency.[5]

 

The Qur’an (2:226-227) says that a man may take an oath to abstain from a wife for four months. After that, either reuniting with her or divorcing her is permitted.[6]

 

The Qur’an (24:6-9) says that when a man accuses his wife of adultery but has no witnesses, he is to swear four times that what he says is true and then a fifth time by invoking the curse of Allah (God) upon himself if he is lying.[7] But the accused wife can then avert punishment by similarly swearing four times that her husband is lying and then a fifth time by invoking the curse of Allah upon herself if he is telling the truth.[8]

 

According to the Qur’an, a divorced woman is to wait three menstrual cycles without remarrying; it is unlawful to hide a pregnancy.[9] For women who have despaired of menstruating again, the waiting period (iddah) is three months.  For pregnant women, the waiting period ends when they give birth.[10] During the waiting period, the husband has the right to take the wife back if they desire a reconciliation.[11]

 

The Qur’an says that the man is to support the woman according to his means during the waiting period (iddah).[12] He is not to upset her by harassing her.[13] The woman is to be permitted to stay in her home during the waiting period unless she has openly committed an indecent act.[14]

 

A man who is conscious of Allah is to make honorable provision for maintenance of his divorced wife.[15]

 

The Qur’an (2:231, 65:2) says that at the end of the waiting period, a man should either take the woman back with fairness or let her go with fairness.[16]  The Qur’an (65:2) says that when doing this, two just men are to act as witnesses.[17] He should not take her back to hurt her, for if he does he harms his own soul.[18] The Qur’an (2:232) says that a divorced woman who has completed her waiting period is permitted to remarry her husband if they agree honorably.[19] The Qur’an (2:230) also says that after a divorce is finalized, the couple cannot remarry until the woman has married another man. If she and this second husband are divorced, then she and the first husband may remarry.[20]

 

According to the Qur’an, when a believing man and a believing woman divorce before he has touched her, there is no waiting period (iddah) needed. He should make provision for her and set her free with kindness.[21] When a man divorces a woman before the marriage is consummated and before a bridal payment (mahr) is paid, he should make provision for her according to his means.[22] When divorce occurs before the marriage is consummated but after the bridal payment (mahr) is set, the man is to pay one half of the mahr unless the woman chooses to forgo it all or he chooses to give it all to her. Letting the woman have it all is closer to piety.[23]

 

If a man divorces a pregnant woman and she suckles the baby for him, the Qur’an says that he is to pay her for that. They should consult together amicably. But if they are in disagreement, another woman should suckle the baby.[24] During the two-year period of nursing, the father is to support the mother in fairness and within his means. No mother is to suffer because of her child, and no father either. The mother and father may, by mutual agreement, wean the child or hire a wet-nurse at the father’s expense.[25]

 

According to the Qur’an, if a woman from a community of unbelievers joins the Muslim community and is found to be worthy,[26] she is to be accepted by the community and not sent back to her unbelieving husband. Their marriage is not valid since a Muslim woman is not permitted to marry a non-Muslim man.  The Qur’an (60:10) says that the unbelieving man she left should be reimbursed for his expenses on her bridal payment (mahr^*). Then a believing man may marry her.[27]

 

The Qur’an says that a believing man whose wife is an unbeliever should ask for a return of her bridal payment (mahr) and not continue the marriage.[28] The Qur’an (60:11) says that a believing man whose wife goes over to join the unbelievers should be paid back what he spent on her (mahr).[29]

­

Divorce

From the hadith compilations of al-Bukhari and Muslim

 

Contents

 

Pronouncement of divorce (hadith)

 

Divorce initiated by a woman (hadith)

 

Divorce following accusation of zina/adultery – lian (mula’ana) (hadith)

 

Waiting period (iddah) following divorce (hadith)

 

Marriage of a divorced woman (hadith)

 

Ending marriages between believers and non-believers (hadith)

 

 

Pronouncement of divorce (hadith). Hadiths explain that divorce is accomplished irrevocably by three pronouncements of divorce by the husband.[30] These pronouncements of divorce must be said out loud, not just in the husband’s mind.[31]

 

Muhammad and Abu Bakr (Muhammad’s successor as leader of the Muslim community) permitted a husband to divorce his wife by three pronouncements of divorce uttered at one time, but this was prohibited by Umar (Abu Bakr’s successor)[32] because men had begun to divorce their wives more frequently.[33]

 

When a man divorced his wife while she was menstruating, Muhammad ordered him to take her back.[34] Some hadiths say that the man had only made one pronouncement of divorce, rather than the required three pronouncements.[35] He was required to wait until her menstrual period was completed. Then he could divorce her[36] as long as he had not had sexual intercourse with her during that time.[37] Also, he could divorce her if she became pregnant.[38] A number of hadiths report that Muhammad said that the man had to wait until two menstrual periods had ended before he could complete the divorce of his wife.[39] His original divorce of her during her menstrual period was counted as one of the three required pronouncements of divorce[40]. It is reported that upon telling the man that he had to take his wife back and wait until her menstrual period was completed before divorcing her, Muhammad quoted a verse of the Qur’an (65:1).[41] This verse of the Qur’an says a man should take the period into account when divorcing a wife.[42] (Editor’s note: The meaning of this Qur’an verse is very unclear.)

 

When Muhammad was told by Allah to give his wives the option of divorce[43] his telling them that they could choose divorce was not, in itself, divorcing his wives.[44]

 

Staying away from one’s wife’s bed, as Muhammad did with Safiyya,[45] does not constitute divorce.[46]

 

As stated above, the Qur’an (2:226-227) says that a man may take an oath to abstain from a wife for four months. After that, either reuniting with her or divorcing her is permitted.[47] According to a hadith, this means that a man who exceeds four months of sworn abstention from his wife should be imprisoned to force him to declare divorce from her.[48] (Editor’s note: This is to protect the woman from being caught in a status of neither divorce nor marriage which prevents her from benefiting from her original marriage and also from marrying another man.)

 

As described elsewhere, when Muhammad became angry at his wives, he did not divorce them or take any other action against them. He simply separated himself from them for 29 days.

 

 

Divorce initiated by a woman (hadith). Hadiths tell of a woman who told Muhammad that she wanted a divorce from her non-Muslim husband because she did not like having to behave in an un-Islamic manner. Muhammad asked if she would be willing to return the garden that she had received as her bridal payment (mahr^*). When she said that she would, Muhammad told the husband to accept the garden back and divorce his wife.[49]

 

A female slave, was permitted by Muhammad to decide whether or not to become divorced from her husband at the time of her manumission.[50] Her husband was said to be a slave in some reports[51] and a free man in others,[52] while some hadiths report lack of knowledge about whether he was slave or free.[53] It is said that her husband must have been a slave because Muhammad would not have let her divorce him if he were a free man.[54] When the manumitted slave woman exercised her option to divorce her slave husband, Muhammad saw how much the divorced man loved her and wanted to be married to her again. Muhammad asked her to return to him but, when she refused, he did not order her to marry him again.[55]

 

Muhammad said that it is unlawful for a woman to ask her husband to divorce another wife so she can take the other woman’s place and have everything of his for herself.[56] Muhammad specifically made it unlawful for a woman to require a man to divorce an existing wife as a condition for marrying the man.[57]

 

 

Divorce following accusation of zina/adultery – lian (mula’ana) (hadith). Divorce can result from the process of lian (mula’ana) following an accusation of adultery.

 

As stated above, the Qur’an (24:6-9) says that when a man accuses his wife of adultery but has no witnesses, he is to swear four times that what he says is true and then a fifth time by invoking the curse of Allah (God) upon himself if he is lying.[58] But the accused wife can then avert punishment by similarly swearing four times that her husband is lying and then a fifth time by invoking the curse of Allah upon herself if he is telling the truth.[59]

 

Hadiths report that when a man came to Muhammad and accused his wife of having unlawful sexual intercourse with another man, Muhammad told him to bring forward four witnesses or else be punished with lashes for making a false accusation against his wife. Then the verses of the Qur’an (24:6-9) were revealed concerning lian – the swearing by the husband and wife that they were each telling the truth.[60] When both a man and his wife had given the five oaths required by the process of lian in front of Muhammad, the man divorced his wife. Divorce following lian became a tradition after that.[61]

 

Muhammad continued to require the process of lian even when a woman gave birth to a child that resembled the man she was accused of being with rather than resembling her husband.[62] Muhammad said that he would have punished the woman severely in such cases if the law did not require the process of lian rather than punishment.[63] After a case of lian and divorce, a child born to the woman belongs to the woman and inherits only from her, not from her former husband.[64]

 

When a case of lian results in divorce, the divorced woman retains the bridal payment (mahr^*). Muhammad said that this is because, even if the unproved accusation against the wife was correct, the mahr was payment to the wife for the sexual relations that consummated the marriage.[65]

 

Hadiths report that Muhammad said that a husband who finds his wife with another man is not to kill that man.[66] Those who brought such cases to Muhammad were put through the process of lian.[67]

 

 

Waiting period (iddah) following divorce (hadith). The iddah (waiting period) for the woman begins after three pronouncements of divorce by her husband.[68] A divorced woman cannot remarry until her waiting period (iddah) is completed.[69]

 

Even the previous husband of the divorced woman must wait until the iddah has been completed before remarrying his former wife. This is in accordance with the verse of Qur’an (2:231-232, cited above) that says that a divorced woman who has completed her waiting period should be permitted to marry her husband if they agree honorably.[70] However, Abdullah ibn Umar (the son of the second successor to Muhammad as leader of the community of Muslims, Umar) said that a woman cannot remarry the man who divorced her until she marries another man.[71] This reflects the verse of the Qur’an (2:230, cited above) that says that after a divorce is finalized, the couple cannot remarry until the woman has married another man. If she and this second husband are divorced, then she and the first husband may remarry.[72]

 

As cited above, the Qur’an says that a divorced woman is to wait three menstrual cycles without remarrying; it is unlawful to hide a pregnancy.[73] For pregnant women, the waiting period (iddah) ends when they give birth.[74] The Qur’an also says that for women who have despaired of menstruating, the waiting period is three months.[75] A hadith says that this includes girls who have not yet menstruated; such prepubescent females must also wait three months after divorce before remarrying.[76]

 

Muhammad said that a woman is permitted to leave her home in order to do certain things during her period of iddah, such as plucking dates and giving charity and performing acts of kindness.[77]

 

The Qur’an (4:24) says that a woman who is married to someone else is forbidden to a man unless that woman is his slave.[78] This prohibition occurs in a section of the Qur’an listing those women who are forbidden for marriage, and so it is often read as meaning that it is permitted to marry a slave who is already married. However, a hadith says that this verse of the Qur’an (4:24) means that it is permitted to have sexual intercourse with a married woman who has been captured in battle (and is thus a slave) after the normal iddah period has elapsed.[79]

 

Muhammad’s wife Aisha gave an explanation for the verse of Qur’an (4:128, cited above) which says that if a woman is afraid that her husband may treat her badly or leave her, it is no blame on them if they reconcile; such reconciliation is best. Aisha said that this means that a woman who fears her husband will divorce her can tell her husband that he can stay away from her and marry another woman but that he should not divorce her.[80]

 

When Fatima bint Qais was divorced by her husband, he made no provision for her maintenance or housing.[81] She was afraid of the hardship that she would have to endure as a result.[82] She asked Muhammad about this and he said that her former husband had no obligation to provide for her maintenance.[83] When Fatima bint Qais herself said that a woman who was irrevocably divorced from her husband has no right to maintenance support from him,[84] Muhammad’s wife Aisha[85] and Umar[86] (the second successor to Muhammad as leader of the community of Muslims) and others as well[87] objected to what she said. Umar[88] and others[89] quoted the verse of Qur’an (65:1), saying that a woman is to be permitted to stay in her home during the waiting period after divorce unless she has openly committed an indecent act. But Fatima bint Qais said that this verse of Qur’an referred only to revocable divorce, with only one or two pronouncements. Once the divorce is made irrevocable by three pronouncements, no maintenance or housing for the divorced woman is required.[90]

 

Muhammad did not want Fatima bint Qais to live with another woman during her iddah period because that woman often had visitors[91] and they might see her with her head or body uncovered.[92] Muhammad told Fatima bint Qais to move to another house[93] where her family[94] (her cousin[95]) lived, for her iddah period.[96] Muhammad sent her to live in the house of her cousin Ibn Umm Maktum who was blind and thus he would not see her when she removed her garments.[97]

 

 

Marriage of a divorced woman (hadith). After a woman had completed her iddah period following divorce, she and her former husband wanted to remarry. The brother of the woman refused to let them. It was then that the verse of Qur’an (2:232) was revealed stating that a divorced woman who has completed her waiting period should be permitted to marry her husband if they agree honorably.[98] So Muhammad recited this verse of Qur’an to the man and so he permitted his sister to remarry her former husband.[99]

 

However, Abdullah ibn Umar (the son of Umar, who was the second successor to Muhammad as leader of the Muslim community) said that a woman who has been divorced by three pronouncements by her husband can only remarry her former husband if she first marries someone else and he divorces her or dies.[100] This reflects the verse of the Qur’an (2:230, cited above) that says that after a divorce is finalized, the couple cannot remarry until the woman has married another man. If she and this second husband are divorced, then she and the first husband may remarry.[101]

 

Muhammad said that if a divorced woman does marry another man, she cannot remarry her first husband unless the marriage with the second one has been consummated.[102] He upheld this ruling even when a woman told him that her second husband was impotent.  He refused to permit her to remarry the husband from whom she had previously been divorced.[103]

 

 

Ending marriages between believers and non-believers (hadith). A woman told Muhammad that she wanted a divorce from her non-Muslim husband because she did not like having to behave in an un-Islamic manner. Muhammad asked if she would be willing to return the garden that she had received as her mahr^*. When she said that she would, Muhammad told the husband to accept the garden back and divorce his wife.[104]

 

If a Muslim woman becomes a nonbeliever and leaves her husband to join the nonbelievers, the husband is to be compensated for the bridal payment (mahr) that he had paid to that woman, as specified in the Qur’an (60:11), summarized above. This payment should come from the mahr of women who had abandoned their nonbelieving husbands and joined the community of Muslims. (However, the Qur’an (60:10, cited above) and other hadiths, summarized below, say that the mahr of a woman who leaves her nonbelieving husband to join the community of Muslims is to be returned to her nonbelieving husband.)

 

When men from a polytheistic tribe came to join the Muslims and accepted Islam, Muhammad returned them to their tribe in accordance with the terms of a treaty he had with that tribe.[105] However, he would not return women to their polytheistic tribe if the women accepted Islam even though the treaty required him to return them.[106] It was in connection with the decision not to return the women that the verses of the Qur’an (60:10-12), summarized above, were revealed saying that such women should not be returned.[107] The polytheistic husbands should be reimbursed the bridal payment (mahr) they paid to the women who were now Muslim.[108]

 

If the person leaving a polytheistic tribe to join the Muslims had been a slave among the polytheists, that person, whether male or female, would not be returned to the polytheists. The price of that slave would be paid to the polytheists and the person would be considered free, no longer a slave.[109]

 

If a woman comes to join the Muslims from a polytheistic group at war with the Muslims and without a treaty in place, she could not be married to a Muslim man until a full menstrual period had started and been completed. If her husband joined the Muslims before then, she would be returned to him as his wife.[110]

 

Divorce

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

Contents

 

Grounds for dissolving a marriage (jurisprudence/fiqh/sharia)

 

Procedures for divorce (jurisprudence/fiqh/sharia)

 

Marrying a divorced woman – iddah/waiting period (jurisprudence/fiqh/sharia)

 

Custody of children following divorce (jurisprudence/fiqh/sharia)

 

 

Grounds for dissolving a marriage (jurisprudence/fiqh/sharia). Among the scholars^**, Malik, al-Shafiʽi and Abu Hanifa agree that a person has the option of dissolving a marriage if certain defects are discovered in the spouse, though some scholars hold otherwise.[111] For Abu Hanifa, the only grounds for rejecting a woman in marriage is blockage of the vagina which prevents intercourse. Malik and Al-Shafiʽi say that the defects that justify dissolving a marriage are inability to have sexual intercourse because of congenital blockage of the vagina in the woman or because of impotence or severed penis in the man and also insanity, leprosy and another particular skin disease.[112] (Reliance of the Traveller (Shafiʽi school) lists elephantiasis rather than this second skin disease.[113])  Some of Malik’s followers add being black, baldness, or offensive odor from the vagina or breath as grounds for dissolving a marriage.[114]

 

If a husband is unable to pay the bridal payment (mahr^*), Abu Hanifa says the bride may refuse to have sex with him. Malik and al-Shafiʽi add that if, in such a circumstance, the marriage has not been consummated, the woman can choose to dissolve the marriage.[115]

 

Malik and al-Shafi’i say that a marriage dissolves if the husband is not able to provide maintenance for his wife.[116] Abu Hanifa, however, says that the inability to provide maintenance for one’s wife is not grounds for dissolving a marriage.[117]

 

 

More detailed summaries concerning grounds for dissolving a marriage (jurisprudence/fiqh/sharia)

 

 

Procedures for divorce (jurisprudence/fiqh/sharia). The scholars^** agree that if a marriage has been consummated, divorce becomes irrevocable when a free man makes three pronouncements of divorce.[118] However, if the marriage has not been consummated, the divorce is irrevocable immediately after a single pronouncement by the husband.[119] If a marriage has been consummated and divorce pronounced by the husband fewer than three times, the man can take the woman back without the woman’s consent as long as she is still in her waiting period (iddah).[120]

 

It is permitted for a wife who wants to be divorced to pay her husband to divorce her (khul).[121] If such payment is agreed to and made, the divorce is irrevocable without three pronouncements being necessary.[122]

 

It is tradition (sunna) that a pronouncement of divorce be made during an interval between the wife’s menstrual periods in which no sexual intercourse occurred.[123] Making a pronouncement of divorce in an interval between menstruations in which sexual intercourse has occurred is considered to be an unlawful innovation, contrary to the teachings of the tradition (sunna).[124] Making a pronouncement of divorce while one’s wife is menstruating is also unlawful innovation contrary to sunna,[125] unless the wife has paid the husband to divorce her.[126]

 

Malik, al-Shafiʽi and the Shafiʽi school hold that a single pronouncement of divorce counts for more than one pronouncement if the husband intends it to be so, even if he did not say so at the time; if he intended three then the divorce is irrevocable, even if he did not say three. Abu Hanifa says that a single pronouncement counts as only one, even if more than one is intended.[127]

 

The scholars agree that the man may reverse a divorce through words, with witnesses required as called for in the Qur’an (65:2, cited above). Some, including Malik and Abu Hanifa, say that this can also be accomplished through sexual intercourse.[128]

 

 

More detailed summaries concerning procedures for divorce (jurisprudence/fiqh/sharia)

 

 

Marrying a divorced woman – iddah/waiting period (jurisprudence/fiqh/sharia). The scholars^** agree that when a marriage has been consummated and a pronouncement of divorce is made, the woman begins her waiting period (iddah).[129] If the marriage has not been consummated, there is no waiting period following a divorce.[130]

 

It is forbidden to marry a woman during her waiting period (iddah) following divorce or the death of her husband.[131] When the waiting period following a pronouncement of divorce is completed, the woman may marry another man.

 

During the waiting period the man and woman are to be separated and are not to have sexual intercourse.[132]

 

If a single pronouncement of divorce occurs in a marriage that was never consummated, or if the divorce is the result of payment by the woman to the man, then the man may not take the woman back.[133]

 

For a free woman, the waiting period following a pronouncement of divorce is three menstrual cycles if she is menstruating, until the end of pregnancy if she is pregnant, or three months if she is post-menopausal.[134] Reliance of the Traveller (Shafiʽi school) says that the waiting period after divorce is also three months if the divorced female is prepubescent.[135]

 

During the waiting period following a revocable divorce, the man must provide the woman with maintenance and lodging.[136]

 

After an irrevocable divorce, the couple may not be remarried unless the woman first marries another man and has intercourse with him, followed either by divorce or death of the second husband.[137]

 

 

More detailed summaries concerning marrying a divorced woman – iddah/waiting period (jurisprudence/fiqh/sharia)

 

 

Custody of children following divorce (jurisprudence/fiqh/sharia). The scholars^** agree that if a man divorces his wife, their young children are put in custody of the mother.[138] If a child is old enough to make a decision, some say the mother still gets custody; al-Shafiʽi, the Shafiʽi school and some others say the child’s decision is binding.[139]

 

According to Reliance of the Traveller, in order to be awarded custody of a child, a person must be upright and sane and, if the child is a Muslim, a Muslim.[140] The mother has the first right of custody of a child, followed by her mother, her mother’s mother, etc. The next right of custody is to the father, to his mother, to her mother, etc. Then the right falls upon other relatives in a specific order.[141] A woman who remarries loses her right to custody of a child unless the man she marries already has a right to custody of that child.[142]

 

A divorced woman is not required to nurse her baby unless it will not suck at another woman’s breast.[143]

 

________________

 

^*Mahr is a payment given by the groom to the bride upon their marriage.

 

^**Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

________________

 

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Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

BK:    Hadith collection of al-Bukhari as found here (USC/CMJE website) and here (ebook download). In a few instances, the hadiths on the USC website differ from those in the ebook download, either by having slightly different numbering of the hadiths or because the hadith appears only on the USC site and not in the ebook download. Such cases are noted in the footnotes by putting either “(USC)” or “(ebook)” after the relevant hadith number when it applies to only one of these two sources. Part or all of the hadith collections of al-Bukhari, with somewhat different numbering systems, can also be found here, here and here.

ML:    Hadith collection of Muslim as found here and here. Part or all of the hadith collection of Muslim, with somewhat different numbering systems, can also be found here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.