Women In Islam versus Judaeo-Christian Tradition The Myth & The Reality


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  • Women In Islam versus Judaeo-Christian Tradition The Myth & The Reality



  • 11. Divorce

    The three religions have remarkable differences in their attitudes
    towards divorce. Christianity abhors divorce altogether. The New
    Testament unequivocally advocates the indissolubility of marriage. It
    is attributed to Jesus to have said, "But I tell you that anyone who
    divorces his wife, except for marital unfaithfulness, causes her to
    become adulteress, and anyone who marries the divorced woman commits
    adultery" (Matthew 5:32). This uncompromising ideal is, without a
    doubt, unrealistic. It assumes a state of moral perfection that human
    societies have never achieved. When a couple realises that their
    married life is beyond repair, a ban on divorce will not do them any
    good. Forcing ill-mated couples to remain together against their wills
    is neither effective nor reasonable. No wonder the whole Christian
    world has been obliged to sanction divorce.
    Judaism, on the other hand, allows divorce even without any cause. The
    Old Testament gives the husband the right to divorce his wife even if
    he just dislikes her:  "If a man marries a woman who becomes
    displeasing to him because he finds something indecent about her, and
    he writes her a certificate of divorce, gives it to her and sends her
    from his house, and if after she leaves his house she becomes the wife
    of another man, and her second husband dislikes her and writes her a
    certificate of divorce, gives it to her and sends her from his house,
    or if he dies, then her first husband, who divorced her, is not allowed
    to marry her again after she has been defiled" (Deut. 24:1-4).
    The above verses have caused some considerable debate among Jewish
    scholars because of their disagreement over the interpretation of the
    words "displeasing", "indecency", and "dislikes" mentioned in the
    verses. The Talmud records their different opinions: "The school of
    Shammai held that a man should not divorce his wife unless he has found
    her guilty of some sexual misconduct, while the school of Hillel say he
    may divorce her even if she has merely spoiled a dish for him. Rabbi
    Akiba says he may divorce her even if he simply finds another woman
    more beautiful than she" (Gittin 90a-b).

    The New Testament follows the Shammaites opinion while Jewish law has
    followed the opinion of the Hillelites and R. Akiba. Since the
    Hillelites view prevailed, it became the unbroken tradition of Jewish
    law to give the husband freedom to divorce his wife without any cause
    at all. The Old Testament not only gives the husband the right to
    divorce his "displeasing" wife, it considers divorcing a "bad wife" an
    obligation: "A bad wife brings humiliation, downcast looks, and a
    wounded heart. Slack of hand and weak of knee is the man whose wife
    fails to make him happy. Woman is the origin of sin, and it is through
    her that we all die. Do not leave a leaky cistern to drip or allow a
    bad wife to say what she likes. If she does not accept your control,
    divorce her and send her away" (Ecclesiasticus 25:25).

    The Talmud has recorded several specific actions by wives which obliged
    their husbands to divorce them: "If she ate in the street, if she drank
    greedily in the street, if she suckled in the street, in every case
    Rabbi Meir says that she must leave her husband" (Git. 89a). The Talmud
    has also made it mandatory to divorce a barren wife (who bore no
    children in a period of ten years): "Our Rabbis taught: If a man took a
    wife and lived with her for ten years and she bore no child, he shall
    divorce her" (Yeb. 64a). Wives, on the other hand, cannot initiate
    divorce under Jewish law. A Jewish wife, however, could claim the right
    to a divorce before a Jewish court provided that a strong reason
    exists. Very few grounds are provided for the wife to make a claim for
    a divorce. These grounds include: A husband with physical defects or
    skin disease, a husband not fulfilling his conjugal responsibilities,
    etc. The Court might support the wife's claim to a divorce but it
    cannot dissolve the marriage. Only the husband can dissolve the
    marriage by giving his wife a bill of divorce. The Court could scourge,
    fine, imprison, and excommunicate him to force him to deliver the
    necessary bill of divorce to his wife. However, if the husband is
    stubborn enough, he can refuse to grant his wife a divorce and keep her
    tied to him indefinitely. Worse still, he can desert her without
    granting her a divorce and leave her unmarried and undivorced. He can
    marry another woman or even live with any single woman out of wedlock
    and have children from her (these children are considered legitimate
    under Jewish law). The deserted wife, on the other hand, cannot marry
    any other man since she is still legally married and she cannot live
    with any other man because she will be considered an adulteress and her
    children from this union will be illegitimate for ten generations. A
    woman in such a position is called an agunah (chained woman).  In
    the United States today there are approximately 1000 to 1500 Jewish
    women who are agunot (plural for agunah), while in Israel their number
    might be as high as 16000. Husbands may extort thousands of dollars
    from their trapped wives in exchange for a Jewish divorce.  

    Islam occupies the middle ground between Christianity and Judaism with
    respect to divorce. Marriage in Islam is a sanctified bond that should
    not be broken except for compelling reasons. Couples are instructed to
    pursue all possible remedies whenever their marriages are in danger.
    Divorce is not to be resorted to except when there is no other way out.
    In a nutshell, Islam recognises divorce, yet it discourages it by all
    means. Let us focus on the recognition side first. Islam does recognise
    the right of both partners to end their matrimonial relationship. Islam
    gives the husband the right for Talaq (divorce). Moreover, Islam,
    unlike Judaism, grants the wife the right to dissolve the marriage
    through what is known as Khula'. 36 If the husband dissolves the
    marriage by divorcing his wife, he cannot retrieve any of the marriage
    gifts he has given her. The Quran explicitly prohibits the divorcing
    husbands from taking back their marriage gifts no matter how expensive
    or valuable these gifts might be: "But if you decide to take one wife
    in place of another, even if you had given the latter a whole treasure
    for dower, take not the least bit of it back; Would you take it by
    slander and a manifest wrong?" (4:20). In the case of the wife choosing
    to end the marriage, she may return the marriage gifts to her husband.
    Returning the marriage gifts in this case is a fair compensation for
    the husband who is keen to keep his wife while she chooses to leave
    him. The Quran has instructed Muslim men not to take back any of the
    gifts they have given to their wives except in the case of the wife
    choosing to dissolve the marriage: "It is not lawful for you (Men) to
    take back any of your gifts except when both parties fear that they
    would be unable to keep the limits ordained by Allah. There is no blame
    on either of them if she give something for her freedom. These are the
    limits ordained by Allah so do not transgress them" (2:229). Also, a
    woman came to the Prophet Muhammad seeking the dissolution of her
    marriage, she told the Prophet that she did not have any complaints
    against her husband's character or manners. Her only problem was that
    she honestly did not like him to the extent of not being able to live
    with him any longer. The Prophet asked her: "Would you give him his
    garden (the marriage gift he had given her) back?" she said: "Yes". The
    Prophet then instructed the man to take back his garden and accept the
    dissolution of the marriage (Bukhari). In some cases, A Muslim wife
    might be willing to keep her marriage but find herself obliged to claim
    for a divorce because of some compelling reasons such as: Cruelty of
    the husband, desertion without a reason, a husband not fulfilling his
    conjugal responsibilities, etc. In these cases the Muslim court
    dissolves the marriage. In short, Islam has offered the Muslim woman
    some unequalled rights: she can end the marriage through Khula' and she
    can sue for a divorce. A Muslim wife can never become chained by a
    recalcitrant husband. It was these rights that enticed Jewish women who
    lived in the early Islamic societies of the seventh century C.E. to
    seek to obtain bills of divorce from their Jewish husbands in Muslim
    courts. The Rabbis declared these bills null and void. In order to end
    this practice, the Rabbis gave new rights and privileges to Jewish
    women in an attempt to weaken the appeal of the Muslim courts. Jewish
    women living in Christian countries were not offered any similar
    privileges since the Roman law of divorce practiced there was no more
    attractive than the Jewish law.  

    Let us now focus our attention on how Islam discourages divorce. The
    Prophet of Islam told the believers that: "among all the permitted
    acts, divorce is the most hateful to God" (Abu Dawood). A Muslim man
    should not divorce his wife just because he dislikes her. The Quran
    instructs Muslim men to be kind to their wives even in cases of
    lukewarm emotions or feelings of dislike: "Live with them (your wives)
    on a footing of kindness and equity. If you dislike them it may be that
    you dislike something in which Allah has placed a great deal of good"
    (4:19). Prophet Muhammad gave a similar instruction: "A believing man
    must not hate a believing woman. If he dislikes one of her traits he
    will be pleased with another" (Muslim). The Prophet has also emphasized
    that the best Muslims are those who are best to their wives:
    "The believers who show the most perfect faith are those who have the
    best character and the best of you are those who are best to their
    wives" (Tirmidthi). However, Islam is a practical religion and it does
    recognize that there are circumstances in which a marriage becomes on
    the verge of collapsing. In such cases, a mere advice of kindness or
    self restraint is no viable solution. So, what to do in order to save a
    marriage in these cases? The Quran offers some practical advice for the
    spouse (husband or wife) whose partner (wife or husband) is the
    wrongdoer. For the husband whose wife's ill-conduct is threatening the
    marriage, the Quran gives four types of advice as detailed in the
    following verses: "As to those women on whose part you fear disloyalty
    and ill-conduct, (1) Admonish them, (2) refuse to share their beds, (3)
    beat them; but if they return to obedience seek not against them means
    of annoyance: For Allah is Most High, Great. (4) If you fear a break
    between them, appoint two arbiters, one from his family and the other
    from hers; If they wish for peace, Allah will cause their
    reconciliation" (4:34-35). The first three are to be tried first. If
    they fail, then the help of the families concerned should be sought. It
    has to be noted, in the light of the above verses, that beating the
    rebellious wife is a temporary measure that is resorted to as third in
    line in cases of extreme necessity in hopes that it might remedy the
    wrongdoing of the wife. If it does, the husband is not allowed by any
    means to continue any annoyance to the wife as explicitly mentioned in
    the verse. If it does not, the husband is still not allowed to use this
    measure any longer and the final avenue of the family-assisted
    reconciliation has to be explored.
    Prophet Muhammad has instructed Muslim husbands that they should not
    have recourse to these measures except in extreme cases such as open
    lewdness committed by the wife. Even in these cases the punishment
    should be slight and if the wife desists, the husband is not permitted
    to irritate her: "In case they are guilty of open lewdness you may
    leave them alone in their beds and inflict slight punishment. If they
    are obedient to you, do not seek against them any means of annoyance"
    (Tirmidthi) Furthermore, the Prophet of Islam has condemned any
    unjustifiable beating. Some Muslim wives complained to him that their
    husbands had beaten them. Hearing that, the Prophet categorically
    stated that: "Those who do so (beat their wives) are not the best among
    you" (Abu Dawood).It has to be remembered at this point that the
    Prophet has also said: "The best of you is he who is best to his
    family, and I am the best among you to my family" (Tirmidthi).The
    Prophet advised one Muslim woman, whose name was Fatimah bint Qais, not
    to marry a man because the man was known for beating women: "I went to
    the Prophet and said: Abul Jahm and Mu'awiah have proposed to marry me.
    The Prophet (by way of advice) said: As to Mu'awiah he is very poor and
    Abul Jahm is accustomed to beating women" (Muslim).

    It has to be noted that the Talmud sanctions wife beating as
    chastisement for the purpose of discipline. 39 The husband is not
    restricted to the extreme cases such as those of open lewdness. He is
    allowed to beat his wife even if she just refuses to do her house work.
    Moreover, he is not limited only to the use of light punishment. He is
    permitted to break his wife's stubbornness by the lash or by starving
    her. For the wife whose husband's ill-conduct is the cause for the
    marriage's near collapse, the Quran offers the following advice: "If a
    wife fears cruelty or desertion on her husband's part, there is no
    blame on them if they arrange an amicable settlement between
    themselves; and such settlement is best" (4:128).

    In this case, the wife is advised to seek reconciliation with her
    husband (with or without family assistance). It is notable that the
    Quran is not advising the wife to resort to the two measures of
    abstention from sex and beating. The reason for this disparity might be
    to protect the wife from a violent physical reaction by her already
    misbehaving husband. Such a violent physical reaction will do both the
    wife and the marriage more harm than good. Some Muslim scholars have
    suggested that the court can apply these measures against the husband
    on the wife's behalf. That is, the court first admonishes the
    rebellious husband, then forbids him his wife's bed, and finally
    executes a symbolic beating.

    To sum up, Islam offers Muslim married couples much viable advice to
    save their marriages in cases of trouble and tension. If one of the
    partners is jeopardising the matrimonial relationship, the other
    partner is advised by the Quran to do whatever possible and effective
    in order to save this sacred bond. If all the measures fail, Islam
    allows the partners to separate peacefully and amicably.


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