Marriage is defined as a consensual legal union of a man and women. The ideal purpose of marriage is a commitment that brings forth a state of tranquility through mutual love and compassion. In Islam, the purpose of marriage is also a commitment that brings tranquility. But in Islam the perception of marriage is more like a mutual contract or in Arabic as "Aqd" from a legal point of view. Like any other contract, the marriage contract requires full consent of the parties involved. Although the parents or guardians of either of the parties advice is important in choosing a marriage partner or use persuasion, but nevertheless the ultimate decision to enter into a marital relationship must be undertaken by each partner. Although this liberally made choice may consist of nothing but taking in compliance the choice of each party's parents or guardian, the ultimate commitment to marriage is of those that are entering to the marriage.
Even though marriage is based on mutual consent, but it is not always true that this consent prevails amongst them forever and for this reason the mutuality of the commitment starts quivering and relationships do fall apart, and that is where divorce comes in. In Islam divorce is completely demoralised. However, the Islamic law provides provisions for the termination of the marriage contract if the marriage commitment fails to work. The termination of the marriage contract can be initiated by any party that has decided that the other party cannot or will not satisfactorily fulfill the commitment in the marriage contract to provide enough physical, emotional, psychological and spiritual happiness for a state of tranquility. Islam encourages both the husband and wife to appoint such persons as to help with reconciliation (known as the "Qadhi" or "Qazi"), but if these attempts also fail, then the procedures for each are established in the Holy Qur'an.
If a man initiates the divorce process, it is termed as the "Talaq." This type of divorce by the man's hand can either be spoken or written three times. But after the repetition of "Talaq" three times, there is a waiting period of three months known as the "Iddat". No type of sexual relationship can take place even if both individuals are still living under the same housing. This waiting period was developed to prevent any hasty decisions that were made with anger and to determine whether or not the wife has been impregnated before that Talaq took place. If the divorce proceeds onward, then the husband must pay in full whatever dowry or "Mahr" or "Sadaq", a contractual gift from the husband to his wife that was promised to the wife in the marriage contract.
In Islam, a Muslim woman has also got the rights to initiate the divorce process; however this is less common and thus less focused on in research and education context. The woman, based on Islamic law and procedures has two options for obtaining a divorce from her husband. One such way is for the Muslim woman herself, to have private negotiations with her husband "in order to secure his agreement to release her from the marriage." (Vatuk, 3) This type of divorce that is initiated by the woman is known as "Khul." If the negotiation with her husband does not produce the desired outcome of divorce, due to him refusing, the woman has a right to consult the Muslim courts to grant the divorce with Muslim law. This is the other option of a Muslim women's divorce from her husband. In the option of a "Khul" divorce, the women must return any of the dowry that her husband has paid to her because she has decided to come out of the wed-lock, which will lead to breaking the contract of marriage.
In the option of dealing with a court mediated women initiated divorce; the woman would need to consult a Qazi before making any trips to the court. The Qazi listens to the woman and offers advice for reconciliation. If the women wishes to proceed onwards, the Qazi would process the paperwork and send to the husband which is "a registered letter, written on official letterhead, summoning him to come on a specified date and time to discuss the matter," (Vatuk, 9-10) After meeting with the husband and receiving his end of the story, the Qazi can retry to offer advice of reconciliation or suggest that the man offer divorce in the form of Talaq. If the husband refuses to grant the Talaq, which entitles her to the rest of the promised Mahr, then the Qazi will push for the husband to offer the wife the Khul she seeks. If he accepts the terms of Khul, the Qazi gathers the necessary paperwork with the required number of witnesses. "In making an agreement for Khul the spouses are free to make any bargain they wish. However, in India most agreements follow a standard pattern: the wife offers to forfeit her Mahr in exchange for her freedom."
The controversy with divorce lies in the idea that men seem to have absolute power in divorce. But, it is clear in the Holy Qur'an because the Holy Qur'an states there is a "degree" of difference with regards to the rights of men and women in divorce, but it is not clear "how much" and "what" privileges a man is entitled to. This is what the jurists have interpreted. This point should also be taken in consideration that if the dissimilarity exists in part to the man who is financial supporter, then it must not be neglected that if the woman contributes or has a major financial input to the well being of the family that, likewise a man, this privilege should also apply to her. Today many of the divorce laws are the interpretations made by scholars that have relatively few references from the Holy Qur'an. As the circumstances are changing and so are human laws, likewise divorce laws have a tendency to adapt to dynamic circumstances.
Ismail Ahmed is a Family Law Advisor. He manages http://www.aboutdivorce.org and http://www.aboutonlinedegrees.org Article Source: http://EzineArticles.com/?expert=Ismail_Ahmed_Alhashmi |  |
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