Quranic concern on the prevalent customs regarding divorce In Pre-Islamic Arabia, men could abandon their wives at whim

by simply declaring, You are to me like my mothers back (58:2). Since handing down a divorce was a mans prerogative, he needed no ground and did not even release his abandoned wife, who preferred to stay in her husbands home for want of any other place to go. There is a tradition from Aisha reported in Sahih al-Bukhari (Acc. 134/Vol.7) that institutionalizes this custom. It reads: the women whose husband does not want to keep her with him any longer, but wants to divorce her and marry some other lady, so she says to him: `Keep me and do not divorce me, and then marry another woman and you may neither spend on me nor sleep with me. The Justinian Code that dominated the thoughts of the era, placed a woman under the ownership of a man. After marriage the husband became her owner and treated her as he wished. Thus, he could divorce his wife by simply declaring I divorce thee triply or thrice. A system of temporary co-habitation (muta marriage) was also in vogue that permitted a woman to live with different men when their husbands were away from home on trading or any other mission. The Shiitee Ithna Ashari school retains the practice. Thus according to the dictum of the theologian, al-Hurr al Amili, The believer is only perfect when he has experienced a muta [1], though there can be little doubt that the custom virtually conflates legalized prostitution. While this did not raise any question of divorce, the married women who practiced this were virtually temporarily divorced from their husbands and had no means of livelihood for themselves or their children and therefore took to heterosexual habitation as part of social norm. The Quran with its key agenda to lift from them (humanity) their burdens and shackles that were upon humanity (before) (7:157) had to deliver the women from the curse of arbitrary divorce, conjugal oppression and lifelong bondage. At a higher plane, it recognizes the serious emotional and financial implications of a divorce for either or both the spouses, as well as the offspring of a broken marriage. It, therefore, discourages divorce by a set of well-guarded stipulations, but allows it if the alternative was life-long unhappiness for the family. The Quran, however, does not consider divorced women as a social burden. It protects their financial interest and those of the children born to them from their broken marriages, permits them to remarry and treats them practically like any other unmarried women.

Context of the Revelation In the immediate context of the revelation, the Quran abolishes the pre -Islamic custom that permitted a man to abandon his wife indefinitely by an oath, but retain her in wedlock, thus preventing her remarriage or freedom. It therefore declares (2:226): Those who vow (to abstain) from their wives must wait for four months. Meanwhile if they go back, (remember,) God is Most Forgiving and Merciful (2:226). The concluding Gods attribute of Forgiveness and Mercy is suggestive of Quranic encouragement for reconciliation between the spouses and restoration of an effective marriage tie. However, if a man remains firm in his decision on divorce, and abandons his wife for four consecutive months, he must terminate the marriage at the end of this period and release his wife (2:227). However, if they decide on a divorce, (let them remember that) God is AllKnowing and Aware (2:227) Legislation of a Time-frame for a divorce to take effect as norm for humanity In a legally phrased passage (2:228/229) the Quran prescribes, among other things, a three-month waiting period for a woman under divorce notice (2:228), and commands a man who initiates the divorce to formally articulating his intention at least twice over the period (2:229), obviously in the presence of witnesses. The time-framing is reiterated in two other verses (2:231, 65:2). Divorced women shall wait by themselves for three monthly periods, for it is not lawful for them, if they believe in God and the Last Day, to conceal what God has created in their wombs. (2:228). (O men, you must) pronounce the divorce over two occasions. Thereafter live together (with your mates) honorably, or part with (tasrihu) them honorably. (2:229). And if you divorce women, and they reach (the end of) their term, then either live together honorably, or part with (sarrihu) them honorably, but do not keep them to injure them, (or) to exceed limits. Anyone who does that merely wrongs his own soul (2:231). And when they reach (the end of) their term, then either live together honorably, or part with (fariqu) them honorably, calling to witness two just members from among yourselves and uphold the evidence (as) before God. This is to instruct

anyone who believes in God and the Last Day. (Remember,) God will find a way out for anyone who heeds Him (65:2).

Verily, all praise is due to Allah, the Lord of the worlds, the compassionate, the Merciful, Master of the Day of Judgment. And peace and blessings of Allah be upon the one sent as a mercy for all the worlds, our beloved Prophet and Messenger Muhammad, and upon his family, his companions and upon all those who follow in his footsteps till the Last Day. To proceed, if a person wishes to worship Allah truly and properly, he must submit to Allahs commands regardless of whether those commands are related to prayers, fasting, business transactions, marriage or divorce. When a person is not equipped with authentic Islamic knowledge or does not translate their knowledge and understanding into action, choosing their own desires and wishes over and above what Allah has prescribed for them in the Quran and through the noble guidance of His Prophet (s.a.w), this inevitably leads to problems in many of the affairs of a person, especially in the case of marital relationships. Marital discord is not only exhibited by husbands, but in many cases it is exhibited by wives, especially those who have been influenced by the feminist movement or materialistic West and who fail to turn completely to the Quran and Sunnah to see how they should lead their lives. The existence of such attitudes has led to a great deal of marital discord among many couples. It is unfortunate that many times, such couples do not realize that the steps that they must take to bring an end to such discord without hatred and desire for revenge, or for their marriage to return to its proper state have been stipulated in the Quran and Sunnah over 1400 years ago. Allahs Messenger (s.a.w) said: The lawful thing which Allah hates most is divorce. [1] This hadith goes to show that divorce is among the legal things that are Halal but it is not good. It is Halal because sometimes the situation is so complicated that a man is compelled to divorce, when it is reasonable and there is no way out. Divorce is not good because it is a cause of enmity and also a cause of Satans delight. As for the commonly quoted hadith: Marry and do not divorce for verily divorce causes the arsh (throne of Allah) to shake, this is a fabricated and daeef (weak) narration that deserves no consideration. Before we delve into the key areas of divorce, it is worth pointing out that Divorce is a serious matter

with no room for treating it lightly. Allahs Messenger (s.a.w) said: There are three matters in which it is not permissible to joke: marriage, divorce and emancipation (of slave). [2] The linguistic definition of Talaaq is the setting free. In the view of Islam, divorce means the immediate and future annulment of the marriage contract, as confirmed in a plain declaration like: I hereby divorce you! or indirectly, like saying, I hereby consider you unlawful to me! It can also be confirmed by a judge or in the absence of judge, a Muslim leader, on basis of the wifes request. This is known as Khulu. Divorce sometimes relieves the husband or wife of difficulty, when one of the two has a corrupt nature and a deficient faith; when the two do not agree in temper and purpose; or when their hearts repel and never go well together. Therefore, without love or agreement, the family structure collapses. The aim of the Shariah (Islamic law) is to establish a healthy family unit through marriage, but if for some reasons this purpose fails, there is no need to linger on under false hopes as is the practice among the adherents of some other religions were divorce is not permitted. Islam does not keep a couple tied in a loathsome chain to a painful and agonising position, instead it permits divorce. It should only be resorted to when it becomes humanly impossible and due to unavoidable circumstances. Causes behind Marital Discord and Divorce Day after Day divorce rates are increasing. This bitter reality has come about due to many factors that couples are heedless of. Divorce rates have increased first and foremost as a result of not fulfilling the rights and duties of Allah, transgressing the boundaries set by Him. And so Allah punishes a person or a married couple by causing destablisation within the marital relationship. Divorce rates have increased after one or both of the spouses began treating the rights and obligations of each other and their children lightly. Divorce rates are on the increase as a result of parents getting involved with the affairs of their married children, where they shouldnt be getting involved. Divorce is increasing due to gambling, consuming intoxicants such as alcohol and illicit drugs. Divorce continues to rise as result of engagement in unlawful matters: mixed weddings, music and singing, not adhering to the correct Islamic apparel, purchasing houses and cars through riba (usury and interest), in addition to insuring them through prohibited means. Divorce continues to rise as more and more Muslims are refraining from paying zakaat, and due to their neglect and abandonment of Salaat, which the scholars of Islam said is one of the fundamental contributing factors towards divorce. Divorce is increasing as result of not lowering the gaze from looking at the opposite gender that Allah

commanded not to be looked at, whether this happens on the streets, in shopping centers, watching television, on the internet, or other places. Procedure of Divorce There are two ways in which divorce takes place. One is known as Talaaq Bidi an innovated divorce, and the other is known as Talaaq Sunni that is, divorce carried out in accordance with the teachings of Muhammad (s.a.w). As for Talaaq Sunni, this entails the man uttering divorce at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife is in a state of purity, that is, she is not menstruating or in a state of nifaas post natal bleeding, and that he declares the divorce once only. And so if one of the previously mentioned conditions is violated, the divorce process is considered as having been carried out in an innovated manner. Talaaq Bidi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having had sexual relations with her after her last menstruation, or that he divorces her by verbalizing the divorce three times in one utterance or one same sitting. This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafi did not consider the utterance of divorce at one time as an act of innovation. Imaam ash-Shafis opinion is refuted based on the hadith colleted by Bukhari and Muslim whereby ibn Umar, the son of Umar ibn Al-Khataab (r.a), divorced his wife when she was menstruating. So Umar (r.a) asked the Prophet (s.a.w) about his sons actions in which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah(period of waiting) which Allah commanded for the divorce of a woman. The hadith of ibn Umar tells many points and makes them clear. Firstly, that it is prohibited to divorce during menstruation period. Secondly, without the consent of a woman, a man can withdraw his decision within the specified waiting period (iddah). Thirdly, it is an act of heresy (bidah) to divorce a woman in the state of purification after menses, in which sexual intercourse is carried out. The scholars of Islam have differed on the issue of whether divorce uttered while a woman is in menses is actually counted. The majority of the scholars say that the divorce has taken place and it is to be counted. This is the opinion of AbuHanifa, ashShafi, Maalik, Ahmad ibn Hanbal, An-Nawawi, and Al Zaidiyyah. Those who said that divorce has not taken place include the Dhaahiriyyah (the literalist school of thought), ibn Taymiyyah, his studentibn al-Qayim, and As-Sanaani. The correct opinion and Allah knows best is that of the majority of the scholars, that is,

the one who divorces his wife whilst she is in a state of menses is counted as one divorce. This is in light of what ibn Umar himself has proclaimed in Saheeh Muslim and Bukhari that it was counted as one divorce against him. Verbalising Divorce Thrice at One Time What is the legal status of three divorces given together at a time? There are four famous different opinions on this issue among the scholars. The first opinion is that three divorces given together at a time befall and the woman is divorced. This is the opinion of the four dominant schools of thought. The second opinion is that if the woman has carried out sexual intercourse, then three will befall, and if she hasnt, then only one will happen. The third opinion is that of the Mutazilah and Shia who say that three divorces at a time are nothing and have no legal status at all. The fourth opinion is that this is only to be counted as one divorce. Among these different views the fourth opinion, and Allah knows best is the strongest and most logical. The opinion that three divorces uttered at once is to be only counted as one is the opinion of: AbuBakr As-Siddiq, Umar ibn ALKhataab during the first two years of his Khilaafah, Abdur-Rahmaan ibn Awf, one of the ten companions given the glad tidings of Jannah, Abdullah ibn Mas ud, Ali ibn Abi Taalib, ibnAbbaas, ibn Taymiyyah and his student ibn al-Qayim, ibn Rajab al-Hanbali, AshShawkaani, ibn Baaz, ibn Uthaymeen, the great scholar of hadith Shaikh AlAlbaani, and many others, may Allah shower each and everyone of them with his mercy. The conclusive opinion of these great companions and scholars is in light of authentic texts, which shed light on this controversial issue. The following hadith reported by Muslim is one of the main sources of evidence, whereby ibn Abbaas (r.a) narrated: In the time of Allahs Messenger (s.a.w), Abu Bakr, and the first two years of the caliphate of Umar, the three pronouncements of divorce were regarded as one divorce. So Umar said: People have made haste in an affair they used to practice with patience, so supposing we execute it on them, so he executed it on them. Uttering Divorce during Anger Anger is of three types: The first type is when anger is so intense that a person becomes no longer aware of what he is doing or saying. In this case the divorce does not count according to the majority of the scholars, because he is like one who is insane and mad, one who has lost all power of reason. The second type of anger is when a man is when his anger is intense but he understands what he is saying and doing, however the anger is so intense and he cannot control himself

because the argument trading of insults or fighting has gone on too long, so his anger intensifies because of that. In this case there difference of opinion among the scholars. The most correct view, and Allah knows best, is that divorce does not count because the Prophet (s.a.w) said: There is no divorce and no freeing of slaves when it is done by force or in a state of intense anger. [3] The third type of anger is mild anger. This is what happens when the husband is upset with his wife, or he is disappointed about something that his wife has done. This mild anger it is not so intense that it makes him lose his power of reasoning or self control, hence the divorce is valid according to the majority of the scholars. This is the correct answer regarding divorce uttered in anger, as was stated by ibn Taymiyyah and ibn al-Qayyim, may Allah have mercy on them. Iddaah: Period of waiting Iddah is a period in which a woman waits after the death of her husband or divorce, and she is not allowed to marry during this period. The Muslim jurists have unanimously agreed on it as being waajib(obligatory) due to the explicitness of the Quranic injuction whereby Allah says: The divorced women shall wait concerning themselves for three monthly periods. [4] There are three types of Iddah: The first type of Iddah is that of birth. That is, a woman must wait until she delivers her child before she can remarry. A common erroneous idea among people is that a pregnant woman cannot be divorced. This is not the case at all. Rather there is a consensus on this point among the scholars, and that this is a Sunnah divorce and heresy (bidah). There is no dispute regarding its validity. The second type of Iddah is the Iddah of menses. This means a woman is not allowed to marry until she has three menstruations. As soon as the third period ends, Iddah ends. This is the view of many of the elite companions such as Umar, Ali andibn Masud, and it was narrated by ibn al-Qayyim. This is also the view by the majority of contemporary scholars such as ibn Baaz and Uthaymeen. The third type of waiting period is the Iddah of months. This applies to women who have passed the age of menstruation. The Iddah in this case is three months. As for a woman who is divorced by her husband before he has consummated his marriage with her, then there is no waiting period that applies to her based on verse number 49 from Surat Al-Ahzaab (33). The woman whose husband has divorced her once or twice is instructed to spend her Iddah duration within her husbands house. Any woman who leaves her home without the permission of her husband after he has uttered either the first or second divorce is in violation of the injunctions of Allah and His Messenger. A woman whose divorce is revocable (i.e. first or second divorce) may still uncover in front

of her husband and adorn herself by applying make-up and perfume. She may speak to him and he may speak to her; she may sit with him and do anything with him apart from intercourse. The only instance in which he may have sexual relations with her is if he takes her back. If the husband kisses and embraces his wife with the intention of taking her back, then that taking back is valid. To be on the safe side however, he should not fondle with his wife until after he has clearly stated that he is taking her back. In the case were a husband is not sure as to whether he uttered the word of divorce at all, or as to the number of divorces he has uttered, then he should act on the basis of what is certain. So if he is not sure whether he has divorced her or not, the basic principle is that divorce has not taken place, because in this instance marriage is something which is certain, and divorce is something concerning which there is uncertainty. Based on the juristic principle that certainty cannot be overridden by doubt, if the husband is uncertain as to whether he has divorced his wife once or twice, he should assume that he has divorced her once, because this is what is certain. Khulu: Divorce initiated on the part of the wife The linguistic definition of khulu means to take off the clothes or to take out. According to Sharia terminologly, khulu refers to a womans right of cancellation of her marriage. Just as a man can divorce if he has a genuine objection, similarly, a woman may also have a khulu if she has a genuine excuse, and after returning the dowry (mahr or sadaaq). Some of the valid reasons for a woman to ask for a Khulu include disliking her husbands treatment, such as being hot tempered, over-strict, one who criticizes her and rebukes her for the slightest mistake or shortcoming. Another valid reason is that she may dislike her husbands physical appearance due to some deformity or ugliness, or that one of his faculties is missing. Other reasons a woman may instigate divorce is if her husband is lacking in religious commitment. For example, he doesnt pray, or does not fast in Ramadan without a proper excuse, or he goes to parties, whereby the barriers of Allah are transgressed, such as fornication, drinking alcohol, listening to singing and musical instruments. Another basis a woman may ask for a divorce is if the husband deprives her of her rights of spending on her maintenance, clothing, and other essential needs, when he is able to provide these things. A woman may also ask for a divorce if her husband does not give a woman her conjugal rights and thus keep her chaste due to being impotent, or because he is unfair in the division of his time among co-wives. It is crucial to point out that there must be a valid reason behind asking for a khulu. The Messenger of Allah (s.a.w) said: If

any woman asks for divorce from her husband without any specific reason, will not smell the fragrance of paradise. The Iddah of a woman divorced by khulu is not the same as that of a woman who did not instigate the divorce. If the woman divorced by khulu is pregnant then her Iddah lasts until she gives birth, according to scholarly consenses. [5] But if she is not pregnant, the scholars differed concerning her Iddah. Most of the scholars said that she should wait for three menstrual cycles, because of the general meaning of the verse: And divorced women shall wait (as regards their marriage) for three menstrual periods. The correct view and Allah knows best is that it is sufficient for a woman divorced by khulu to wait for one menstrual cycle only. This is deduced from the hadith whereby the Prophet (s.a.w) told the wife of Thaabit ibn Qays, when she divorced him by Khulu, to wait out the Iddah for one menstrual cycle. [6] This hadith refers specifically to Khulu divorce, whereas the verse quoted above speaks of divorce in general. As for the permissibility of taking back a divorced wife by Khulu during the iddah, ibn Kathir (may Allah have mercy on him said: There is unanimous agreement that the man who has divorced his wife by Khulu may take her back during the Iddah. [7] Ar-Raja Taking back a wife after a divorce If a man divorces his wife and this is the first or second talaaq, referred to as talaaq rajI, and she has not ended her Iddah, then he can take his wife back by saying: I am taking you back or I am keeping you. Apart from verbalizing that he is taking her back, the husband may do some action intending thereby to take her back, such as having intercourse with the intention of taking her back. The Sunnah is that taking back the wife should be done in the presence of two just Muslims based on verse number 2 from Surat at-Talaaq (65). If the Iddah has ended following a first or second divorce, there has to be a new marriage contract. In this case he has to propose marriage like any other man, to her guardian and to her. When she and her guardian agree and they agree upon a mahr (dowry), then the marriage contract is completed. That must be done in the presence of two just witnesses. If however, he divorces his wife for a third time, she becomes unlawful to her first husband until she marries a second husband in a genuine marriage which is consummated. Allah the Exalted says (interpretation of the meaning): The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness [8] and He also said: And if he has divorced her (the third time), then she is not lawful unto him thereafter ntil she has married another husband. [9]

The last divorce known amongst Muslim Jurists as Talaaq Baa-in, refers to the third divorce according to the overwhelming majority of the scholars. This is in light of the hadith collected by Bukhari and Muslim whereby a woman came to the Messenger of Allah and said: O Messenger of Allah, Rifaaah divorced me thrice, then I was married to Abd al-Rahmaan ibn al-Zubayr al-Qurazi, but he has nothing with him except something like this fringe. The Prophet (s.a.w) said: Perhaps you want to go back to Rifaaah? No, (it is not possible), unless and until you enjoy sexual relations with him (i.e. Abd al-Rahman), and he enjoys the sexual relation with you. An-Nawawi said: This hadith indicates that the woman who has been divorced by a third talaaq is not permissible to the man who has divorced her until she has been married by another husband, who has intercourse with her then separates from her, and she completes her Iddah. Merely drawing up the marriage contract with her does not make her permissible to the first husband. This is the view of all the scholars among the companions, the taabieen (their direct successors), and those who came after them. Allah the Exalted and the All-Mighty knows best. And May the peace and blessings of Allah be upon His beloved slave and final Messenger Prophet Muhammad. 6.0 - Divorce Although Islam allows divorce, it is generally viewed as an undesirable but necessary means of ending marriages in which conflict between the spouses is such that continuing the relationship would defeat the very purpose of marriage.[61] Although Shari'a authorizes six forms of divorce, modern legislation in countries with Shari'a-based family law systems recognize only three: (1)talaq (divorce by the act of the husband or wife), (2) khula (divorce by mutual agreement), and (3)tafriq (divorce by judicial order).[62] It should be noted that an Islamic divorce does not take into consideration separation of marital property or child custody, and these attributes of the western secular divorce process are typically not addressed in an Islamic divorce. The following discussion will address the three main forms of divorce as they are practiced today. 6.1 - Talaq Under Shari'a, a husband has the right to divorce his wife through talaq, or repudiation, provided that he has reached the age of majority, is sane, and is acting on his own free will.[63] A husband's repudiation of his wife may be pronounced by himself or through an authorized agent with power of attorney. A wife may also

acquire the right of divorce through talaq by including this right as an additional condition in the marriage contract.[64] A talaq divorce may be effected through any form of expression that denotes the end of the marriage. According to the Sunni schools, the repudiation may even be expressed in a metaphor so long as the intention to divorce is clear. The Shia schools, however, require the repudiating party to clearly indicate the party being divorced, and to explicitly state the intention to divorce by saying that the person "is repudiated."[65] Sunnis and Shias also differ on the formula that may be used in a divorce pronouncement. While the Sunnis allow the repudiation to be absolute, unconditional, with immediate effect, or contingent on a certain condition or future event, the Shias only recognize the absolute unconditional formula. An absolute pronouncement takes effect immediately.[66] Two modes of repudiation exist: (1) sunna, and (2) biddat. A sunna repudiation is one pronouncement of divorce that occurs during a tuhr, a period of the wife's menstruation in which no sexual intercourse occurs. There are two types of sunna. The first, called talaq ahsan, is a single pronouncement made during a tuhr and followed by sexual abstinence for the period ofiddat (discussed below). The second type of sunna repudiation, called talaq hasan, consists of three pronouncements made over the course of three periods of tuhr; the divorce becomes irrevocable on the third pronouncement. A biddat repudiation is any repudiation that does not conform to the rules of sunna repudiations. The Shia schools consider the biddat mode of repudiation invalid in most cases, while the Sunni schools consider it valid but sinful.[67] In most cases, repudiation is revocable until the wife completes a period of iddat.[68] The iddat(also called "idda" or "iddah") is a waiting period a wife must observe after her marriage is terminated by divorce or the death of her husband. During iddat the wife is prohibited from marrying another man. If the divorce is revocable, the husband may resume marital relations with the wife without her consent.[69] Iddat's main purpose is to determine whether the wife is pregnant, thereby avoiding questions of paternity. However, it also serves as a period in which spouses may be reconciled. The iddat following divorce is generally three menstrual cycles unless the woman is pregnant, in which case it continues until delivery of the child.[70] The Druzes of Lebanon differ from the other juristic traditions in that they consider any repudiation irrevocable.[71] Under all the juristic schools, the wife is also required to stay in the matrimonial home unless she has an acceptable excuse for leaving it.[72] This requirement may

result in a man physically detaining his former wife until her iddat comes to an end. One Oregon mother who obtained a divorce through the Shari'a courts in Kuwait was locked in the pantry of her husband's home for the period of her iddat. 6.2 - Khula Khula, or mubaraat, is a mutual divorce effected through the common consent of the wife and husband.[73] This form of divorce requires that the wife give the husband some form of compensation.[74] The compensation may be pecuniary or consist of the wife agreeing to care for the couple's child.[75] Only the Shafii school requires that the compensation be monetary.[76]Under the Shia schools, khula must be witnessed by two Muslim males of accepted probity.[77]As in talaq divorces, a wife who divorces by khula must observe iddat. 6.3 - Tafriq Tafriq is a divorce obtained through a judicial ruling issued pursuant to a petition by a wife or husband. While most of the juristic schools today allow tafriq, they differ regarding the circumstances in which this type of divorce may be obtained. The Shia Ithna-Asharis allow tafriqonly in certain cases where the husband is impotent.[78] Likewise, most Hanifi jurists accepttafriq only if the husband has a serious genital defect such as impotency or castration.[79]However, the Maliki, Hanbali, and Shafii schools allow a wife to apply to a court for divorce on other specific grounds. Modern laws based on one of these three schools generally allow a spouse to apply for divorce on the following grounds:

Injury or discord; A defect on the part of the husband; The husband's failure to pay maintenance; The husband's absence without a proper excuse; The husband's imprisonment.[80]

As with the other forms of divorce, a woman divorced by tafriq must observe iddat. 8.0 - Child Custody Following Divorce Under Shari'a, a father is the natural guardian (al waley) of his children's persons and property. Shia doctrine also gives the child's paternal grandfather joint guardianship.[83] According to Shari'a, a child's paternal grandfather is his or her

natural guardian after the father.[84] Under the laws of countries such as Kuwait , guardianship passes to the next relative on the father's side if the father and paternal grandfather are unable to act as guardian.[85] Depending on local laws, a father may be able to transfer his power of attorney over his child to other family members. In custody abduction cases, a father brought into court may use this as a means of keeping the child in the custody of his relatives and he may claim that he lacks legal authority to return the child to its mother. A mother generally has a right to physical, not legal, custody of her child until the child reaches the age of custodial transfer, at which time the child is returned to the physical custody of the father or the father's family. The right to physical custody is not an absolute right in the sense that a mother or father who possesses physical custody may not prevent the other parent from seeing the child. While the parent with physical custody cannot be compelled to send the child to the other parent's residence for visits, he or she must bring the child to a place where the other parent can see him or her.[86] Furthermore, in order to have physical custody, a parent must fulfill certain conditions. Firstly, the father or mother seeking custody must have reached majority and must be sane. He or she must also be capable of raising the child, looking after its interests, and protecting its physical and moral interests. Aside from these basic requirements, there are specific requirements based on the parent's gender.[87] Since, by definition, Muslim fathers satisfy the specific requirements of a male custodian,[88] the following discussion will address only the requirements placed on a mother. In the event of divorce, children often bear the most painful consequences. Islamic law takes their needs into account and makes sure that they are cared for. The financial support of any children both during marriage or after divorce rests solely with the father. This is the children's right upon their father, and courts have the power to enforce child support payments, if necessary. The amount is open for negotiation and should be in proportion with the husband's financial means. The Quran advises the husband and wife to consult each other in a fair manner regarding their children's future after divorce (2:233). This verse specifically holds that infants who are still nursing may continue to breastfeed until both parents agree on the period of weaning through "mutual consent and counsel." This spirit should define any co-parenting relationship.

Islamic law stipulates that physical custody of the children must go to a Muslim who is in good physical and mental health, and is in the best position to meet the children's needs. Different jurists have established various opinions of how this might best be done. Some have ruled that custody is awarded to the mother if the child is under a certain age, and to the father if the child is older. Others would allow older children to express a preference. Generally, it is recognized that young children and girls are best cared for by their mother. Since there are differences of opinion among Islamic scholars about child custody, one might find variations in local law. In all cases, however, the main concern is that the children are cared for by a fit parent who can meet their emotional and physical needs.

8.1 - Requirements of a Mother Custodian To have physical custody, most juristic schools maintain that a mother must not be married to a stranger (a non-relative) or to a relative who is not in a prohibited degree of relation to the child.[89] The Shias, however, prohibit a mother from retaining custody if she marries any other man as long as the child's father is alive and eligible for custody.[90] While only the Shafii and Shia schools require a mother to be Muslim in order to have physical custody over a Muslim child born to a Muslim father, the Hanafi school considers denouncement of Islam (apostasy) a sufficient ground for denying a mother who was previously Muslim her right to custody.[91] Jurists of the other Sunni schools generally only require that the mother raise the child in the Islamic faith. However, the Sunni schools maintain that a mother loses her right to custody if there is reason to believe that she would influence the child's religious beliefs so as to compromise his or her Islamic upbringing. Examples of this would be the mother taking the child to church, teaching the child the articles of another religion, or performing the rites of another religion in front of him or her.[92] Certain other requirements also must be satisfied for a mother to have custody, such as the requirement that the mother not house the child in a home where he or she is disliked.[93] 8.2 - A Mother's Right to Physical Custody In recognition of an infant's need for female care, all the juristic schools give first preference to a mother's claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian.[94] After divorce during

the period of the mother's custody, she is generally entitled to receive custody wages from the father to help her maintain the child.[95] However, the period of female custody ends once the child reaches a certain age of custodial transfer. The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody. The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian. The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries.[96] Under the Hanafi school, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mother's custody of her daughter ends. Most maintain that the mother's custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mother's custody to last until the girl reaches the age of womanhood.[97] The importance of the early nurturing and physical custody of the mother is emphasized and protected in many Islamic countries. Preserving the bond between mothers and their young children is so important that it may result in the children accompanying their mother to prison. InSaudi Arabia , for instance, it has been observed by the author that nearly half of the population of the Central Riyadh Woman's Prison in 1983 consisted of children under the age of seven years. Another American mother, who was also imprisoned in the Kingdom during a divorce dispute with her Saudi husband in the early 1990s, also reported on the number of young children who accompanied their mothers into prison. One American woman told of a Saudi woman who had been imprisoned because her husband's family accused her of infidelity when she became pregnant several months after her husband's death. The Shari'a court would not separate a breastfeeding infant from its mother. Following the child's birth, the mother made every effort to extend breast-feeding and would not wean the child. After two years, the court found the mother unfit on religious grounds and the child was taken from her. 7.0 - Recognition of Divorces Obtained in Secular or Foreign Courts Shari'a courts do not recognize divorces obtained in secular courts of law. In addition, an Islamic divorce obtained outside the home country of the husband may not be recognized by that country's courts. For example, Egyptian divorce law requires that if one of the parties to a divorce is Egyptian, Egyptian law is the only enforceable law and the divorce action must occur in Egypt ."As for the Egyptian

law stated, in relation to the enforced law in personal affairs cases, marriage and divorce, the act 131/1948 civil, article 13, paragraph 1, stated that the law of the husband country, at the date of concluding marriage contract is enforced on the sequences of marriage, and the article 14 of the said law, stated that (in the cases stated in the above mentioned articles, if one of the couples is Egyptian, the Egyptian law is the only enforced law.)" [81] One devout Muslim American woman divorced her Egyptian husband under Shari'a law within theUnited States and then married another Muslim man. The Egyptian man abducted their three-year-old son to Egypt and accused the woman of infidelity because the initial divorce was not concluded in Egypt . The Egyptian court denied her custody of their son and found that her second marriage proved her infidelity. She received the following legal notification in response to her efforts to gain access to her son: As for infidelity [that] was committed between the defendant, who professed Islam [the Muslim American mother], and [her new Muslim husband], in the presence of official document, the marriage contract, before being divorced or divorced by the claimant [her Egyptian ex-husband], so she committed infidelity and polygamy. The punishment of the said crime, by virtue of Allah Holly Sharea [sic], is stoning till death or keeping her in house till death.[82]

Maintenance of divorced pregnant wife, and the offspring In a clearly stated verse (2:233) the Quran spells out: i) the social and financial responsibilities of a man divorcing a pregnant wife, ii) the moral responsibility of his divorced wife to disclose her pregnancy, iii) the need for mutual consultation between them if they wished to put the child under the care of a foster-mother, and iv) the responsibility of the heir of the father if a child was born posthumously (2:233). Mothers shall nurse their children for two whole years if they wish to complete the nursing. The father (has to) provide for them, and clothe them reasonably. No soul is to be burdened beyond its capacity. A mother should not be made to suffer for her child, nor a father for his child, while the heir (is liable) likewise. If they both wish to wean the child by mutual consent and consultation - there is no blame on them; so if you wish to give

your children out to wet-nurses, there is no blame on you, provided you pay what is reasonably expected from you. Heed God and know that God is Observant of what you do (2:233). The Quran further commands men folk to supporting a divorced pregnant wife (65:6), and that they should spend according to their means (65:7). Accommodate them (the women in Iddat) in the manner you lodge, according to your circumstances, and do not harass them to reduce them (to straits). If they are pregnant, meet their expenses until they bring forth their burden; and if they suckle (the baby) for you, give them their due, and consult together honorably. But if you find it difficult (for her health reason, or she intends to remarry), let another woman nurse (it) on behalf of him (the father) (65:6). (In all these matters) the rich should spend (according to) his abundance, but the one whose means is limited should spend of what God has given him. (Remember,) God does not burden anyone beyond what He has given him. Surely God will grant relief after distress (65:7). Settlement of dower if neither marriage is consummated nor dower fixed The Qur'an directs men to give a reasonable provision to their divorced wives, even if the marriage was not consummated (2:236, 33:49). There (will be) no blame on you to divorce women before you have consummated (marriage) with them, or fixed their dower (faridah), but provide for them: the rich according to his means, and the poor according to his means a reasonable provision, a duty binding (haqq), on the compassionate(2:236). You who believe, when you marry believing women and divorce them before you have consummated (marriage) with them, you do not have to count (the waiting) period for them. So make provision for them, and part with (sarrihu) them in a handsome parting(33:49). The verse 2:236 uses the term faridah for marriage dower, while the verse 4:4 calls it saduquat. Give women their dower (saduquat), as a gift but if they voluntarily favor you with anything from it, take it and enjoy it in good spirit (4:4). The former (faridah) connotes with a binding obligation, while the latter (saduqat), with a gift, or charity. Thus, the Qur'an leaves no ambiguity about the legal position of marriage dower: it is a binding obligation of a man towards his wife, and is performed as a gesture of goodwill or charity (saduquat) that s non-refundable. Thus there can be no question about deferring its disbursement and linking it with any other financial or post divorce transaction.

Settlement of dower if marriage is not consummated, but dower is fixed The Quran states: If you divorce them before you have consummated (marriage) with them, but you have fixed their dower (faridah), then (give them) half of what you have fixed, unless they (the women) forgo it, or the one in whose (alladhi) hands is the marriage tie forgoes it. To forgo is nearer to heedfulness (taqwa), and do not forget to be generous between yourselves. (Remember,) God is Observant of what you do (2:237). The common gender pronoun alladhi, rendered above as whose, is traditionally identified with a husband, implying that only the husband can terminate a marriage that is yet to be consummated. But this purports to revoke a womans Quranic privilege to dissolve a marriage unilaterally under compelling circumstances (2:229). Therefore the pronoun alladhi must be interpreted in its common gender form, implying that either of the couple husband or wife can lawfully dissolve an unconsummated marriage. Based on this, the pronouncements of the verse may be broken down into the following simple tenets: If a man initiates a divorce, he has to pay half the dower to the woman, unless she forgoes it. If a woman breaks the marriage from her side, she has to forgo her claim on half the dower that she would have received if the man divorced her. A man, who gives a divorce, has the option to forgo the exempted half' part, and give full contracted dower as a gesture of generosity (fadl). Both the partners of a divorce should be generous to each other, and refrain from exploiting one another. Maintenance for a divorced woman The Quran declares: (There shall be) a reasonable maintenance for divorced women - a duty (haqq) binding on the heedful (muttaqin) (2:241). Thus does God clarify His messages to you, that you may use your reason (2:242). The Quranic injunction is in broad terms: it does not say whether a man is required to make a one off provision, or give a maintenance allowance to his divorced wife until she remarries. The Qur'an, however, asks the menfolk to use reason. Thus, if a man is required to make a provision, commensurate to his income, to a woman with whom he has only contracted marriage but

not yet consummated it (2:236 above), he must be fair and considerate to the woman he is divorcing after living together as a husband and wife. He must therefore arrange spousal maintenance, commensurate to his income, and to the financial need, age, health and circumstances of his spouse. This obviously is a matter for the court to decide, depending upon the merit of the case, the prevalent social conditions and securities, and the relative financial positions of the partners in a divorce case. The Quran forestalls any manipulative interpretation of its commandments The Quranic dictates on divorce as discussed above date from two different periods of its revelation. The passage 2:226-242 dates from early Medinite period, while the passage 65:1-7 from mid Medinite period. The passages, separated chronologically by at least three to four years, complement each other with immaculate consistency and clarity in spelling out a husbands obligations during a divorce. This Qur'anic repetition is understandably to help avoid (i) any misinterpretation by later generation scholars and (ii) any ambiguity on the subject. Conclusion: The Quran deals with the process of divorce in a balanced and phased manner comprising a three month time frame, so that this most agonizing experience in a persons life is faced in a balanced, phased and harmonious manner, and there is no bitterness and ill feelings between the erstwhile spouses. The institution of temporary marriage (muta) and triple divorce are in direct contradiction to the Quranic message and therefore stand haram. Some local customs such as Halala that allows a man to divorce his wife at the spur of the moment, such as in a state of anger or drunkenness and then force her into marriage and sexual intercourse with a friend and get him to divorce her to marry her back the next day or so totally disregarding the three month time for his divorce and that of his friend to take effect also stands utterly haram and sexually shameful sadistic. These practices that remain part of the Classical Islamic Law have defiled and demonized Islam, no matter how few Muslims practice it, and how the Muslims glorify their faith, and reduced Islam to a medieval misogynist cult in the eyes of a section of Western people as summed up By Newt Gringer the 2012 Presidential candidate from the Republicans in a speech to the American Enterprise Institute in Washington in July 2010: I believe Shariah is a mortal threat to the survival of freedom in the United States and in the world as we know it. It is time for the Islamic doctors of law to treat the Classical Islamic Law as a closed corpus - and draw a Modern Law of Islam based on its divine Sharia (the Quran) and not the Classical Islamic Law, which is not a word of God and contradicts the Quranic paradigms on many counts as detailed in a recent article:

http://islam.about.com/od/marriage/ss/stepstodivorce.htmhttp://islam.about.com/od /marriage/ss/stepstodivorce.htm

http://islam.about.com/od/marriage/ss/stepstodivorce.htm

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