Who Should Have Right To Divorce?
One of the objections raised against the Islamic Law of divorce or Talaq is that in empowering man to divorce, Islam has been harsh and unjust to the woman. While pondering over the issue, three alternative answers come to the query: who should be given the right to divorce? The first option is that both should have this right. The second is that the husband should be so empowered. And the third option could be that the wife should have this right.
In the first instance, if both have the right to divorce, the multiplicity of divorces shall make family life uncertain and insecure. In the case of both exercising this right, there will obviously be a much larger number of “casualties” than with only one armed with this weapon to sever relations.
The second option is that adopted by Islam, which has vested this power in man for the reason that he enjoys a little more dignified position in the family. He is the supervisor of the family, maintainer of the wife and with that bears the heavy burden of children’s upkeep, education, and upbringing.
Therefore, it is he who should decide whether it is possible to bear the burden of these responsibilities in collaboration with the wife or not? In the Qur’anic terminology “in his hands has been placed the power to tie the marriage knot (contract) or untie it.” It would be harsh and unjust to compel him to go on maintaining a woman as the queen of the mini-realm, home, whom he does not like or whose cooperation has been denied to him.
Taking the third option in which the wife will have the right to divorce, it is apparent that in this event the abuse of the right cannot be eliminated. In according the right to the wife, there are some evils associated with it also:
· It would be a grave injustice to man to make him bear all the responsibilities toward the woman (dower, gifts, maintenance, and the like) and to grant the right to divorce to the woman.
· Divorce is damaging to a man entirely, whereas the woman remains immune from any harm. If the right is granted to her, a morally irresponsible wife, whenever she chooses, she shall divorce the husband, and handing over children to him, she will take leave of him with the “booty” of her dower and jewelry and gifts in full triumph, and at the first chance coming her way, she will marry another man getting fresh dower and other privileges.
· It is an obvious fact that woman is much more sentimental than man and can at any time, under the impulse of the moment, sever relations with man. That will go a long way in increasing the rate of divorce under normal conditions, thus confronting society with a new crisis.
The way Islam shapes the mind and temperament of man and educates and trains him, divorce can hardly find room in his life and the lurking fear that merely for sexual enjoyment and gratification of abnormal lust he will go on divorcing women most carelessly is only a remote possibility.
Sayyid Jalaluddin Umri, currently President, India’s Jamaat-e-Islami, is an eminent theologian and scholar of Islamic jurisprudence.