DIVORCE (TALAAQ) AND THE RIGHTS OF DIVORCED WOMEN
UNDER ISLAMIC LAW
BY
Hon. Amina Salihu Ingawa*
1.Introduction
Divorce in Islam though legally allowed, is
the permissible thing most detested by Allah (The Most High). Despite its
distaste in Islam, divorce is allowed because it may be the only solution to
some marital problems. It is also conceivable because Islam, being a religion
of peace that strives to make life easier and not difficult for Muslims, would
not insist that a man and a woman remain together in perpetual bondage or
hardship in order to sustain a marriage. Therefore, divorce is provided for to
the extent that a whole chapter of the Quran is named after it. Several other
verses of the Quran also address the issue of divorce exclusively. In that
regard a lot of regulations have been stipulated in order to govern the manner
in which divorce should be handled. Sadly, a lot of times divorce occurs without
recourse to these laid down procedures; and this disregard to rules governing Talaaq
has in turn led to monumental problems in Muslim communities including untold
hardship to women and children.
Therefore, this write-up will analyze the
regulations that govern divorce in Islam and also explore the rights of the
divorced women in that regard. Like in
several other aspects of Islam, the regulations governing divorce have been
geared towards adequately protecting women and children. Again, although there
four different ways within which a marriage may be dissolved under Islamic law,
this paper aims to focus on Talaq because it is the form of divorce that is
mostly used without regard to its ethics and laid down regulations.
2.
Different Ways Through Which Marriages May be Dissolved Under Islamic Law
Under Islamic law, the dissolution of a marriage contract is given different terminologies depending on the process and the procedure adopted in carrying it out.[1] As such, dissolution of marriage can be in the form of Talaaq (divorce at the instance of the husband), Khul’(the wife’s demanding of a dissolution), ’Ilai (Oath of Condemnation), Zihar (regarding one’s wife as the back of one’s mother or Li’an (intercourse- oriented swearing). Talaaq is also further classified as Talaq sunniy (the orthodox divorce), talaq bid’iy (the unorthodox divorce), Talaq raj’iy (the revocable divorce) and Talaq bai’n (the irrevocable divorce).
As
stated earlier, this paper will focus on Talaaq, the divorce at the instance of
the husband.
3. Talaaq
This is the dissolution at the instance of the
husband releasing the wife from the obligations of the marriage contract.[2]Talaaq
also refers to the dissolution of marriage or the annulment of its legality
through the pronouncement of certain words.[3]The
word is derived from the Arabic word ta-la-qa, which means to set free or untie
a knot.[4]
The power of Talaq is vested solely on the husband and although legal, it is in
reality abhorred.[5]Thus,
Islamic law makes Talaaq unlawful for a man who has full financial and material
capacities to maintain a woman to divorce her out of sheer desire to exercise
his power to do so, especially where the divorce may lead her into promiscuous
life.[6]
It is noteworthy though that talaaq is
compulsory or recommended in a number of circumstances. It is wajib(compulsory)if
the wife is guilty of acting in a way that will provoke the husband to beat her
or insult her or her parents. It is also compulsory when the man is financial
incapable of maintaining the wife and she is not ready to bear with him and/or
where he is unable to satisfy the wife emotionally either due to illness or old
age, except if she opts to live with him.[7] It is also recommended to sever marital
relations with a woman who is immoral and unable to guard her chastity and a
woman who flagrantly breaches the injunctions of Allah.[8]
The legality of Talaaq is supported by the
Quran and the sunnah. In the Holy Quran, Allah (The Most High)says: ‘The divorce
is twice, after that, either you retain her on reasonable terms or release her
with kindness…’[9]Allah
also says‘O prophet! When you divorce women, divorce them at their iddah
(prescribed periods)…’[10]
With regards to the Sunnah, it has been
narrated that ‘Abdullah bn ‘Umar (may Allah be pleased with him) divorced his
wife while she was menstruating so ‘Umar (may Allah be pleased with him)
informed the messenger of Allah, peace be upon him (PBUH) whereupon he, the
messenger of Allah became very angry and said:
‘Ibn
Umar must return her to his house until she becomes pure and then menstruates
and becomes pure again, whereupon, if he wishes to divorce her, he may do so
while she is still pure and before having any sexual relation with her, for
that is the legally prescribed period for divorce as Allah has ordered.’[11]
3.1Components of
Talaaq
For Talaaq to be recognized as valid it must
consist of certain components:
1. It must be pronounced by the husband or his
representatives such as his agents or a judge in circumstances where the court
is to impose Talaaq. Additionally, it must be by a husband who has full
competence under the law. This means that the husband must have attained
puberty, be a Muslim and must be in full control of his faculties.[12]Thus,
the divorce by a husband who is insane or a minor is not sound because of the
saying of the Prophet Muhammad (PBUH) that: ‘There are three persons whose
actions are not recorded; a sleeper until he wakes up, a boy till he reaches
puberty and a lunatic till he comes to reason.’[13]
2. There must be a wife who is under the
marriage bond. The law does not entertain the claim of a man to divorce a woman
unless he shows that he enjoys the right of marriage over her. Here, the hadith
of the prophet Muhammad (PBUH) is instructive.
‘The prophet (PBUH) said: ‘A man cannot make a valid promise on
what he does not control. He cannot validly set free a slave that he does not
own as he cannot make a valid Talaaq (release) a woman on whom he does not have
a right of marriage.[14]’
3. There must be an explicit (Sarih) or
allegorical (Kinaya) statement which indicate releasing the wife from the
marriage bond. Both the explicit or categorical and the allegorical or indirect
statements of divorce that do not leave the woman in any doubt are taken as
valid and binding.[15]
The statement of divorce can be written and it is binding as soon as it is
delivered to the woman.[16]Thus,
a letter written by a husband to his wife divorcing her, takes effect
immediately the letter reaches her or her guardian. However, if it had not
reached any of them before he tears it, then it will have no effect.[17]The
making of sign by a dumb, who cannot express himself in writing is taken as
binding statement of divorce.[18]The
literate dumb would be expected to express his divorce in writing because it is
a more reliable indication of his intention.[19]Talaaq
is also binding through a messenger to the wife who is away from where the
husband resides.[20]
4.The fourth component of Talaaq is the
intention (al-qasd). Talaaq cannot be recognized as valid and binding except
where it is actually intended. Thus, any divorce pronouncement that is not
intended by the utterer, for example, through the slip of the tongue, or
pronounced in a language the meaning of which is not known to the one who uttered
it, but was accidentally released, shall not be binding on him.[21]Other
situations where the Talaaq will not be binding include:
i. A person at a point of death who knows not
what he is saying.[22]
ii. A person who got drunk by halaal(legally
allowed) substance like milk, honey or other medicines.[23]
iii. A person who takes small quantity of drug
like marijuana for medical purpose but later got intoxicated.[24]
iv. A person who divorces under duress. The
prophet Muhammad (PBUH) said: ‘The divorce made under duress is not Talaq’. He
was also reported to have said: ‘The sins committed by my people as a result of
error, forgetfulness and under duress are not recorded against them.’[25]
However, where the person over reacted over the duress, his divorce will be
binding. Again, for the duress to justify divorce, it must involve either a
threat to or loss of life or injury to part of the body, or loss of wealth,
children or parents.[26]
v. The statement of divorce pronounced under
the influence of anger is considered under the following categories:
- That the anger is at its initial stage and
thus has not beclouded the reasoning of the person in such a way that he does
not mean or know what he is saying. In this instance, the Talaaq is binding on
the man.
- That the anger is at its peak whereby it has
overpowered his reasoning and made his behaviour similar to that of a mad man,
who is not conscious of the implications of his utterances and actions. Talaaq
by a person in this condition is not binding on him, because he and an insane
person are the same.
- That the anger is in between the first
situation and the second situation whereby he is charged or provoked and he is
no longer himself but it is not as bad as the situation of a mad man who is not
conscious of what he is doing. The consensus is that Talaaq pronounced in this
condition is binding.[27]
3.2
Ethics of Talaaq
Certain ethics govern the manner in which Talaaq
is to be pronounced by a man in order to severe the marital association with
his wife. In this way Islam prohibits men from divorcing their wives at certain
periods. As such, Talaaq is further classified into sunny and bid’iy, i.e the
orthodox and decent manner approved by Islam and the non-orthodox manner. The
former represents the divorce pronounced by a man in which all the Islamic
ethics are followed and the latter represents that in which any of the ethics has
been flouted.
3.2.1
The Orthodox Divorce (Talaq Sunniy)
The Sunni divorce is the permissible divorce
and it goes as follows:
1. That a man divorces his wife with one
pronouncement of divorce
2. That he pronounces the divorce after her
menstruation period ends
3. That she has taken the ritual bath required
after it and
4. Before he has intercourse with her.
5. Then he leaves her without making any other
pronouncement of divorce until after her iddah (waiting period) expires.[28]
The contents of the hadith narrated by ‘Abdullah
bn ‘Umar mentioned above deal with the ingredients of Talaaq sunnah. It reiterates
that Talaaq should be performed when a woman is in the state of purity, free
from monthly or post-natal bleeding. The prophet Muhammad (PBUH) ordered ‘Abdullah
bn ‘Umar to recall his wife because the woman according to ‘Umar was
experiencing her monthly course. Thus, to divorce her then was to make her
undergo the iddah beyond the scheduled time.[29]
It also breaches the provisions of the Qur’an where Allah (The Most High) said:
‘So divorce them during their prescribed period (‘iddah)…’[30].
Furthermore, the man should not cohabit with
the wife during the period of cleanliness in which he pronounced the divorce as
emphasized by the prophet to ‘Abdullah bn ‘Umar that he should not have any
sexual relation with her during the period of purity, if he intended to divorce
her. The husband is further enjoined to exercise patience and restrain himself
from making the pronouncement in a manner that does not leave room for
reconciliation. In essence, the husband should only pronounce divorce once at a
time. When a husband pronounces divorce in accordance with the Sunna, the
divorce in most cases will be one that can be revoked.
3.2.2
The Revocable Divorce (TalaaqRaj’iy)
This refers to the divorce where there is room
for reconciliation. One of the components of Talaaqsunna is that the man
pronounces divorce only once at a time in such a manner that he can recall the
wife without having to go through a new contract of marriage. However, the husband
can only exercise that right while the woman is still observing the iddah
(waiting period) prescribed by Allah in Qur’an 2:228. Thus, where a man
divorces his wife for the first time, he may revoke the divorce during her
iddah without her consent or the consent of her legal representative and no new
bride price will be required in this case.[31]
The man may also chose to leave her until the iddah ends and in this case, he
must release her with kindness because she will have been divorced irrevocably.[32]
If he wants to marry her again after the end of the iddah, it is permissible
for him to do so, yet the marriage is to be contracted as if he is marrying her
for the first time.[33]
Thereafter, if the husband divorces the wife
for a second time, revokes that divorce and divorces her for the third time, he
will not be allowed to marry her unless she marries another man properly. If
the second husband then divorces her, it then becomes permissible for the first
husband to marry her.[34]
Therefore, when a husband divorces his wife
for the first or second time, he has the right to make the wife return to him
as the marriage tie is still subsisting as long as the period of Iddah has not
ended. The husband should announce the return in clear terms by saying ‘I
revoke my decision to divorce you’, ‘I have taken or put you back to me’, or by
having conjugal relation with her with the aim of revoking the talaaq.[35]
It is part of sunnah that he makes two men testify to the return.[36]
and that he should be mature and sane.[37]
With regards to the talaaqraj’iy and the
period of waiting, Allah (The Most High) says[38]:
‘And divorced women shall wait (as regards
their marriage) for three menstrual periods, and it is not lawful for them to
conceal what Allah has created in their wombs, if they believe in Allah and the
last day. And their husbands have the better right to take them back in that
period, if they wish for reconciliation. And they (women) have rights (over
their husbands as regards living expenses, etc) similar to those of their
husbands over them (as regards obedience and respect, etc) to what is
reasonable, but men have a degree (of responsibility) over them. And Allah is
All-Mighty, All – Wise.
The divorce is twice, after that, either you
retain her on reasonable terms or release her with kindness. And it is not
lawful for you men to take back (from your wives) any of (the Mahr) which you
have given them, except when both parties fear that they would be unable to
keep the limits ordained by Allah (e.g to deal with each other on a fair
basis). Then if you fear that they would not be able to keep the limits
ordained by Allah, then there is no sin on either of them if she gives back the
Mahr or a part of it) for her khul (divorce). These are the limits ordained by
Allah, so do not transgress them. And whoever transgresses the limits ordained
by Allah, then such are the wrongdoers.
And if he has divorced her (the third time),
then she is not lawful unto him thereafter until she has married another
husband. Then if the other husband divorces her, it is no sin on both of them
that they reunite, provided they feel that they can keep the limits ordained by
Allah. These are the limits of Allah, which He makes plain for people who have
knowledge.’
3.2.3
The Irrevocable Divorce (Talaq Ba’in)
The irrevocable divorce is that whereby the
man losses his right to return the wife to himself according to his desire, as
it now has to be in accordance with her own desire and under certain
stipulations. The husband becomes like any other foreign man who seeks her hand
in marriage, and she may accept or refuse him, and in case of accepting him
again, a new contract and new dowry must be made and paid.[39]
There are 5 cases because of which the divorce
becomes BA’IN (Irrevocable)[40]:
(a) If he divorced her for the first time or the
second time (Talaq Raj’y), and he left her until her iddah ends.
(b) If he divorced her in return for a redemption
(Khul’)[41]
(c) If she is divorced by a court’s sentence as
long as the judges see that the divorce is better for the two of them.
(d) If he divorces the wife before consummation of
the marriage (in this case she does not observe iddah)
(e) When a man divorces his wife either three
separated times or on three occasions, or on the same occasion pronouncing
the divorce thrice, he cannot remarry her except after she has remarried
another man and then the later divorces her. This is known as TALAQ BAI’IN
BAINUNAH KUBRAH (major irrevocability of divorce).[42]
In all manners of Talaaq enumerated and
classified as Ba’in, the husband has lost the right of marriage, and if for any
reason he wishes to re-marry her, he has to perform a fresh marriage with her
with all the requirements including paying a new dowry, obtaining consent of
the legal representative and re-solemnizing the marriage[43].
The basis of this is contained in the Holy Quran where Allah (The Most High) says[44]:
‘And
when you divorce women and they complete their waiting period do not prevent
them from marrying their husbands, if they agree between themselves in a decent
manner. This is an admonition for him among you who believes in Allah and the
last day. It is more blessed for you and purer. Allah knows but you do not
know.’
3.2.4
The Innovated Divorce (TalaaqBid’iy)
When a man pronounces divorce in an unorthodox
manner, in contrast to the Sunni divorce, by stating divorce in a manner that
means that they have divorced and re-united thrice leaving no room for any
reconciliation, it is referred to as TALAAQ BID’IY. This kind of divorce is
contrary to the ethics of Islamic law and one of its consequence is that the
wife becomes illegitimate for him until she remarries another man, lives a
normal life with the new husband and the later got divorced by him.[45]
On the authority of Aisha, (May Allah be
Pleased with Her), it was reported that a man divorced his wife thrice. She
then remarried another husband, who divorced her before having any conjugal
relation with her. The apostle of Allah (PBUH) was asked: ‘has she become
lawful for the first man?’ He replied: ‘No, until she has a taste of sexual
relation with him as she had that of the first man.’[46]
It is important to point out here that during
the lifetime of the Prophet (PBUH), when divorce was pronounced in this
unorthodox manner, for example, a man saying to his wife: ‘You are divorced
three times’ or ‘You are divorced’, ‘You are divorced’, ‘You are divorced’, it
was taken as one divorce only. However, during the caliphate of ‘Umar bn
Khattab, such divorce was taken to be a triple divorce with all the
consequences attached. It has been narrated by Ibn Abbas (May Allah be Pleased
with Him), that:
‘(the
pronouncement of) three divorces during the lifetime of the messenger of Allah
(PBUH) and that of Abu Bakr and two years of the caliphate of ‘Umar (was
treated) as one. But ‘Umar Ibn Al-khattab said, ‘verily the people have begun
to hasten in an issue in which they are required to observe respite. So, if we
had imposed this upon them, (that might have been better for them).’And he
imposed it upon them.’[47]
Secondly too, when a man divorces his wife
during her menstrual period or divorces her during an interval between her
menstruations yet after copulating with her during this interval, the divorce
is classified under TALAAQ BID’IY (Innovated divorce). The divorce is
prohibited and whoever does it is sinful. Nevertheless, the divorce is counted.[48]
Thus, if a man divorces his wife in this
manner, and if it is the first or second divorce, he is to revoke the divorce
then keep her until her menstruation ends then another period starts and ends.
He can then keep her if he wants and he can divorce her if he wants, yet this
must be done before having intercourse with her. This is derived from the
hadith mentioned above regarding Ibn ‘Umar (May Allah be pleased with him).
4.The
Waiting Period (‘Iddah)
Iddah is a period stipulated by law during
which a woman cannot contract a new marriage with any other person except with
the husband from whose divorce she is observing ‘Iddah. ‘Iddah is of two types;
namely as a result of divorce or as a result of death of the husband. It can be
observed either by purity between two menstrual periods (Quru), or by months or
by delivery of pregnancy.[49]
For a divorced woman whose marriage has been
consummated, and where the divorce is revocable and she is a woman who has
normal menstrual period, her ‘iddah is three menstrual periods. This is in
accordance with Quran 2:228 ‘…and divorced women shall wait (as regards their
marriage) for three menstrual periods…’. If the divorced woman does not have
menstrual period due to young age or old age, her iddah is three months counted
from the day of the talaq:
‘And
of those of your women as have passed the age of monthly courses, for them
the (prescribed period), if you have
doubts (about their periods), is three months, and for those who have no
courses (i.e they are still immature, their iddah is three months likewise)…’[50]
Where the woman is divorced before
consummation of the marriage, no iddah is required on her part. Allah (The Most
High) says: ‘O you who believe! When you marry believing women, and then
divorce them before you have sexual intercourse with them, no iddah (divorce
prescribed period) have you to count in respect of them….’[51]The
‘Iddah of a pregnant woman who has been divorced is until she delivers:‘…And for those who are pregnant (whether they are
divorced or their husbands are dead), their iddah is until they deliver (their
burdens).’[52]
It is noteworthy that there is a lot of wisdom
regarding the need for women to observe Iddah. In the first place Iddah
provides an atmosphere and an opportunity for the parties to reconcile.
Secondly Iddah helps in the preservation of consanguinity such that, there will
be no doubt about the paternity of a pregnancy if any at that time.[53]
5.
Rights of The Divorced Woman
5.1
Right to Maintenance and Accommodation
The conditions of women observing ‘Iddah and
the nature of divorce are the determinants of the rights due to them during the
waiting periods. When the divorce is revocable before the expiration of Iddah,
the divorced wife is entitled to maintenance, accommodation and the right to
inherit because of the subsistence of marriage bond during that period.[54]
Maintenance here refers to food and clothing.[55]
Women who are irrevocably divorced are not entitled to maintenance or
accommodation but they can be housed only in order to protect the interest of
an unborn child of the marriage.[56]
Allah (The Most High) says:
‘O
prophet when you divorce women, divorce them at their iddah (prescribed
periods), and count (accurately) their iddah (periods). And fear Allah your
Lord (O Muslims), and turn them not out of their (husband’s) homes, nor shall
they (themselves) leave, except in case they are guilty of some open illegal
sexual intercourse…’[57]
Here, the words ‘..turn them not out of their
(husband’s) homes, nor shall they themselves leave…’ require that the woman in
question has the right to reside in her husband’s house during her ‘iddah.[58]
The prophet Muhammad (PBUH) also said in this regard that ‘a woman has a right
to maintenance and lodging if her husband can take her back (after divorce).’[59]
Allah also says ‘Lodge them (divorced women)
where you dwell, according to your means, and do not treat them in such a
harmful way that they be obliged to leave…’[60]
As for the woman who is irrevocably divorced
from her husband, she has no right to maintenance or lodging upon her husband.
It has been narrated that Fatimah BintQays was divorced irrevocably and she
said:
‘I contended with him before the messenger of
Allah (PBUH) about lodging and maintenance allowance, but he (the prophet) did
not provide me with any lodging or maintenance allowance, and he commanded me
to spend my Iddah in the house of Ibn Umm Maktum.’[61]
However, a woman who is divorced before
consummation of the marriage is entitled to maintenance because Allah says;
‘And for divorced women, maintenance (should be provided) on reasonable (scale),this
is a duty on the pious.’[62]
Allah also says: ‘O you who believe!
When you marry believing women, and then divorce them before you have sexual
intercourse with them, no ‘iddah (divorce prescribed period) have you to count
in respect of them. So, give them a present, and set them free in a handsome
manner.’[63]Maintenance
as regards the woman divorced before consummation of the marriage refers to
setting the woman free in a handsome manner by giving her beautiful presents
like clothing, money and the like.
The pregnant divorced woman is to be provided with
maintenance until she delivers her baby. Allah says; ‘…and if they are
pregnant, then spend on them till they deliver…’[64]
As for the pregnant who is divorced, it does not matter whether the divorce is
revocable or not, as long as she is pregnant, she has a right to be maintained
until she delivers.
It is noteworthy that while Allah (The Most
High) has stated the right of the divorced wife to maintenance and
accommodation during the waiting period, He equally states that there is a
reciprocal right of the men to respect and obedience from the divorced wives during
that same waiting period wherein the men are required to lodge the wives and
maintain them. Allah also emphasized the need to release women with kindness in
the event where the divorce has become irrevocable. Kindness here refers to
giving the divorced wife some present or gift in accordance with the financial
position of the husband.
5.2
Right to Custody and Maintenance of Her Children
The Islamic terminology for guardianship or
custody of children is ‘hadanah’ which means the side of the body that lies
below the armpit.[65]
The word is used to express the action of a mother bird using its wings to
protect its chicks. It is in this sense that the word is used to convey the
protection a mother gives to her young child in Islamic law.[66]
It means the protection and shielding of young ones from the hazards of life at
their tender age.[67]Hadanah
involves looking after a child in terms of maintaining where he lives,
preparing his bed and beddings, preparing his food, taking care of his clothes
and his personal hygiene.[68]
It also involves looking after the child at the tender age spiritually and
intellectually so that when he or she overcomes the weakness of infancy and
childhood, he will be able to stand on his own and face the challenges of life
as well as perform the responsibilities expected of him.[69]
Islamic law entrusts the custody of children
at their tender age to the lenient, tender and safe hands of their mothers.
This is in keeping with the practice of Islam to do the right things in a
proper order.[70]Thus,
under Islamic law, first consideration is given to the most competent hands in
any given issue and a person who is considered first in a situation may be
considered last in another.[71]
As such, whereas a woman is given low rating in consideration for Imamship
(leading prayer or political leadership), she is considered first in issues of
guardianship and custody of children because of her special leniency, gentility
and patience.[72]
The reason for giving priority to the mother
is that she has proper right to guardianship and breast feeding (nursing) of
the child.[73]
This is because she is more skillful and more capable to discharge the duty
better than a man. She is also endowed with patience and time to attend to the
problems of the child both of which she has more than the man. So, she is given
priority in the interest of the welfare of the child.[74]
Therefore, if a woman is divorced, she is more
worthy of her child’s custody than the father as long as she does not marry
another man (who is not related to the first husband). Islam believes that
under normal circumstances, the safe and protective hands of women are the best
practical place to guarantee the interest and welfare of children even if the
mother were to live in grass thatch-roofed houses and not in air-conditioned
mansions.[75]
This principle was set down by the Prophet
Muhammad (PBUH) in a hadith narrated by Abu Dawood and others; which has become
the precedent used in settling the issue of custody of a child between a man
and his divorced wife. The hadith goes thus:
‘Abdullah
Ibn ‘Umar said that a woman complained to the Apostle of God saying: ‘This is
my child, my stomach was his abode, my thigh was his playing center, my breast
was the reservoir to quench his thirst. His father wants to take him from me.’
He replied her saying: ‘You have better claim to the guardianship than his
father as long as you have not remarried.’[76]
This precedent guided Caliph Abubakar (May
Allah be pleased with him) in a similar dispute between Caliph ‘Umar and his one-time
wife from the Ansar. It was reported as follows:
‘On
the authority of Yahya IbnSa’id, he said that he heard Al – Qasim Ibn Muhammd
saying: ‘Umar Ibn Khattab (may Allah be pleased with him) was married to a
woman from the Ansar. She had a child for him called Asim. Later ‘Umar divorced
her. ‘Umar came to Quba and found his child Asim playing at the corridor of the
mosque. He took him by the arm and put him in his front on the animal he rode. The
grandmother of the child pursued him and challenged him. They both appeared
before Abubakar Sidiq (may Allah be pleased with him). ‘Umar said, ‘my son’,
and she said ‘my son’. Abubakar ordered ‘Umar to let her have him. ‘Umar did
not contest it further. In another version, it was reported that Abubakar told
him: ‘the mother is more merciful, lenient, kind, more concerned, more
selective and more sympathetic than the man and she has a better claim to the
custody of her young child than the man as long as she has not remarried.’[77]
However, a woman does not automatically
qualify for this role unless she is sane, mature and capable of directing her
own affairs.[78]In
essence, for a woman to be entitled to the custody of her children, certain
conditions must be fulfilled. She must have the capability to take care of the
child or children; if she is incapable due to age, sickness or any defect (like
blindness), she will lose the right to the next person to her in hierarchy.[79]
Furthermore, she must have a sound mind, and she must be healthy.[80]
Custody is not granted to a leper or a person with contagious disease.[81]
The mother should also be one who can direct her own affairs, and not one who
is under the supervision of somebody else.[82]
Again, the mother must also beone who is morally upright. Thus, a wayward
mother, an adulteress, a drunkard or one with loose character will not be
considered in the award of custody of her children because of the fear that she
may influence the children in a negative way.[83]
The mother should also have a decent, safe and secure accommodation for the
child under custody and the place must be known to the father or guardian of
the child.[84]
Another condition is that the mother must not
be married to someone who is not a close relative of the child. As such, where
the mother is married to another person who is not related to the child, she
loses the right of custody to the next person in the hierarchical order.[85]
A close relative of the child here means a person who also has right of custody
or guardianship of the child; like his uncle or grandfather. However, she will
not lose the right of custody if she remarries and a male custodian of the
child, having known of the marriage keeps mute or where there is acquiescence
for a period of over one year. Where the male custodian has cogent reasons for
not raising the issue at the right time, he is not estopped from demanding the
custody on the reason that the mother has remarried.[86]
Finally, the child under custody must not be
far away from his father or testamentary guardian for a distance of more than 72
miles. The rule is that a female custodian must not travel from the place of
custody for a distance of more than 72 miles without the consent and approval
of the father.[87]
According to some Maliki jurists, for a woman to retain custody of her
children, she must be prepared to stay in a place or town where the former
husband of guardian of the child is living. These jurists further hold that she
must be prepared to relocate in the case where the father or guardian also has
to relocate to another place or town.[88]
This rule on relocation seem unjust to women
and contrary to the spirit of the locus classicus hadith on hadaanah; that a
woman has the right of custody as long as she does not remarry. Moreover, some scholars
opined that all these rules of relocations cannot be found in the Qur’an or
Hadith and that they are just the exertion and endeavor of other scholars
because ofAllah’s saying in the Holy Qur’an that; ‘Amother should not be made
to suffer on account of her child’… and the words of the prophet (PBUH): ‘If
there are two evils the lesser of the two is taken.’ [89]
5.2.1
Hierarchy of Persons Entitled to Custody of Children
Where the divorced woman who has been given
custody of her children gets married to another man (not related to the father
of the child) or she becomes otherwise disqualified to have the custody of the
children, the right of custody reverts to her mother. If the maternal
grandmother of the child loses the right, it then shifts to the maternal great grandmother.
This is on condition that the woman to be given custody does not live in the
same house with any of her daughters (or other persons) who had earlier lost
the right of custody. The maternal aunt of the child (either full or half-sister
to the mother of the child) comes next to the mother and grandmother and great grandmother,
then comes the aunt of the mother of the child. The right then shifts to the
mother of the father of the child before moving to the father of the child and thereafter,
the child’s sister (whether full or half) and then the sister of the father. The
next in hierarchy thereafter is the child’s niece (either through the child’s
brother or through the child’s sister), then an appointed agent and then the
brother of the child and finally the son of the brother of the child.[90]
5.2.2
Duration of Custody
The duration of custody in the case of a boy
is until he reaches puberty[91],and
in the case of a girl, the duration is until she is married and the marriage
consummated, whereupon her husband takes over her maintenance.[92]
It is trite to note that while the right of
custody is given to the mother, the expenses of maintaining and training the
child rests squarely on the shoulders of the father. These include expenses for
accommodation, provisions, feeding, clothing, beddings, bathing and schooling.[93]
Thus, the person who has custody of a child has the right to receive the cost
of maintenance of the child in respect of staple food, clothing and
accommodation from the father of the child in accordance with his condition of
poverty or richness.[94]The
father as a point of duty is to groom the child for his future welfare in terms
of educational training, acquisition of professional skills, moral training,
etc. The father is bound to continue maintaining the child until he is mature,
sensible and able to earn his livelihood.[95]In
the case of a female child this duty continues until she is married and the
marriage consummated. [96]
6. Conclusion
As evidently seen in this write-up, while allowing
divorce on genuine grounds, Islam has taken great care to put in place adequate
measures in order to limit the use of divorce in an arbitrary manner.
Similarly, regulations have been designed in order to protect women, who are
usually the more vulnerable party. The fact that a man is prohibited from
divorcing his wife during her menstrual cycle goes to show the length that Islam
has gone to protect women, especially because it is well known that most women
act or behave irrationally or irritably during their monthly courses.
Therefore, they are protected from being divorced during that period.
Additionally, divorced women have a right to
accommodation and maintenance depending on the nature of the divorce. As such,
a divorced wife is not to be harshly thrown of the house and made to instantly
start fending for herself. Rather, she is given a timeframe within which, even
if the husband does not eventually revoke the divorce, she is able to utilize
that time in order to organize and plan the next phase of her life without
having to deal with the pressure of providing for herself. More so, divorced women
not only have the right to the custody of their children by the time the divorce
becomes irrevocable, but the fathers must bear the cost of the maintenance of
the children which include accommodation, feeding, clothing and schooling.
Thus, when divorce is used in accordance with its guidelines under Islamic law,
Muslim societies will fare better because, the rate of divorce will surely
reduce, women will be safeguarded from being pushed into acts of immorality in
order to make ends meet and children will be brought up in a healthy and
balanced atmosphere.
*LL.B, BL, LL.M
[1]Ambali, M.A (2003) The practice of Muslim Family Law. Tamaza Publishing Company Limited, Zaria. P. 209
[2] ibid
[3] Abdul-Fattah, M.A ( 2004) Al-Fiqhul-MuyassarahuMinal-Qur’ani was-Sunnah; Simplified Islamic Jurisprudence Based on the Qur’an and the Sunnah. Reima Y. Shakeir (ed.)Dar Al-Manar, El-Mansoura – Egypt p. 819
[4]Ambali. M.A, op cit p. 210
[5]Orire, A.O (2007) Shari’a: A Misunderstood Legal System. Sankore Educational Publishers Ltd. Zaria, Nigeria p.53
[6]Qur’an Chapter 5:1
[7]Ambali, M.A op cit
[8] ibid
[9] Qur’an 2:229
[10] Qur’an 65:1
[11] Hadith narrated by Al-Bukhari and Muslim. Reported in Sahih Muslim (The Book of Divorce) Book 9 No. 3473
[12]Ambali, M.A op cit p. 210-211
[13] Minhaj Al-Muslims (Path of Muslims) Translated by Rashid, M.F; Summarized by Nadvi, S.A (Part 2) p.733
[14]Abdul Rahman Al-Jazairi (1986) The Book of Jurisprudence on the Four Schools, DarulFikr, DarulKutub ‘Ilm’iyyah, Lebanon, Vol. IV, p.280 cited in Ambali, M. A op citp.211
[15] ibid
[16] ibid
[17]Orire, A.O op cit p. 55
[18]Ambali, M.A op cit p.212
[19] ibid
[20] ibid
[21]Orire, O.A op cit p.51
[22] Ibid, p.52
[23] ibid
[24] ibid
[25]Sahih Bukhari; The Book of Divorce p.414
[26]Orire, O.A op cit
[27]Ambali, M.A op cit p. 212
[28] Abdul-Fattah, M.A op cit pp. 826 - 827
[29]Ambali, M.A op cit p. 214
[30] Qur’an 65:1
[31] Abdul-Fattah, M.M op cit p. 827
[32] ibid
[33] ibid
[34] ibid
[35]Ambali. M.A opcit p. 216
[36] Minhaj Al-Muslim op cit p. 738
[37]Ambali, M. A op cit
[38] Quran 2:228-230
[39] Minhaj Al-Muslim op cit p.737
[40] Ibid
[41]Khul’ is the type of dissolution at the instance of the wife.
[42] Qur’an 2:230
[43] The exception here is with regard to the major irrevocable divorce where the man cannot marry her even with a new contract unless another man marries her, lives a normal married life with her and then divorces her.
[44] Qur’an 2:232
[45] Qur’an 2:230
[46] Reported in Sahih Bukhari, Book of Divorce No. 5261 p.411
[47] Reported in Sahih Muslim (Book of Divorce) Book 9 No. 3491
[48] Abdul-Fattah, M.M op cit pp.829-830
[49]Orire, A. op cit p.67
[50] Qur’an 65:4
[51] Qur’an 33:49
[52] Qur’an 65:4
[53]Ambali, M.A op cit p.244
[54] Ibid, p. 246
[55]Orire, A. op cit p.98
[56]Ambali, M.A op cit p.246
[57] Qur’an 65:1
[58] Abdul-Fattah, M.M op cit p. 835
[59] ibid
[60] Qur’an 65:6
[61] Reported in Sahih Muslim (Book of Divorce) Book 9, No. 3512
[62] Qur’an 2:241
[63] Qur’an 33:49
[64] Qur’an 65:6
[65]Ambali, M.A op cit p. 256
[66] ibid
[67] ibid
[68] ibid
[69] ibid
[70] ibid
[71] ibid
[72] Ibid p.257
[73] ibid
[74] ibid
[75] Ibid p.258
[76] Reported by Ahmad (6707), Abu Dawood (2276) and Al-Hakim (2/207)
[77]As-Sayyid Sabiq (1983) Fiqhus Sunnah, DarulFikr, Lebanon, cited in Ambali, M.A op cit pp.258-259
[78]Ambali, M.A op cit p.264
[79]Solahudeen, A.S (2020) Solahuddeen on Al-Hadaanah: Legal Treatise on Judicial Verdicts on Custody in the Light of the Maliki School. Fauz Law Firm, Kaduna, Nigeria. P. 116
[80] Ibid pp.117-118
[81] ibid
[82] Ibid p. 119
[83] Ibid p.117
[84] Ibid p.120
[85] Ibid pp.121 - 122
[86] Ibid p.122
[87] Ibid pp. 129-130
[88] Ibid p.131
[89] Ibid pp.137 & 143
[90]Ambali, M.A op cit pp.266-267, Orire op cit p. 83
[91] There are some views that hold that the hadaanah of a male child ends when he grows permanent teeth, but attainment of puberty is the most popular opinion.
[92]Orire, A. op cit p.81
[93]Ambali, M.A p.261
[94] Minhaj – Al Muslim op cit pp.767-768
[95]Orire A. op cit p. 81
[96]Ambali, M.A op cit p. 262
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