In the Preliminary Part One of the topic on "Talaq" which appeared in the March 1997 issue of Federation Samachar, we discussed the status of women in Islam and the process by which men and women are united by "AQD/NIKAH" to form a family unit in which husband and wife, in their respective roles as equal partners, work together in close co-operation for the happiness, prosperity and growth of the family, guided by the principles of family life in Islam. However, when disputes arise between the partners occasionally, for one reason or another and are left unreconciled, the situation deteriorates and ultimately ends in a separation and divorce which leaves behind a dismal sight of a torn family and bitter memories. When we see this wreckage, we realise the unpleasant social consequences of "Talaq" and the reason why Islam abhors it.
Another principal cause for the breakdown that has often been seen is lack of compatibility between the partners. The Prophet (s.a.w.) of Islam laid great emphasis on this essential attribute to be looked for, apart from other factors such as education and upbringing when choosing a partner to the marriage, against other considerations such as beauty and money exclusively. When this requirement is ignored and religiousness cast aside, eventual breakdown becomes inevitable, as the couple find themselves strange bedfellows and at constant loggerheads with each other because they talk on different wavelengths.
There are, of course, many other minor problems which often arise in a married life. But these are, in most cases, solved by showing mutual love and trust, understanding, kindness, tolerance, affection, frankness, selflessness and at times, sacrifice for the pleasure of Allah (s.w.t) who, after all, has complete and absolute hold on our hearts and minds. He has assured His help in solving these problems and to restore harmony between husband and wife provided they are sincere in their intention to concile their differences. (Surah 4:35).
However, when matrimonial life becomes intolerable and separation necessary and beneficial or the damage caused by the disputes irrepairable, "Talaq" is the final solution and brings great relief mentally and emotionally to both the partners. Therefore, this brings us now to discuss "Talaq" in greater detail in order to acquaint ourselves with the Shariah Law together with some important provisions of the Statutory Law relating to divorce in Tanzania.
As stated previously, what prompted this article was the concern shown and questions raised by councillors at the various meetings of the Supreme Council on the rising rate of matrimonial disputes and the consequent numerous divorces in our Community. Questions asked at the 52nd Supreme Council Session held in Arusha in April, 1994 ranged from the fate at the time of divorce of the gifts given to the bride by the bridegroom at the time of the marriage according to both the shariah and the statutory law, to the position where the husband refused to give "Talaq" to the first wife when he had already married a second wife in which case what the time limit would be for the first wife to wait until she could file a petition for divorce and whether or not she had a right to divorce her husband in such a case.
Hujjatul Islam, Maulana Sayyed Saeed Akhtar Rizvi was present on the invitation of the Council at the meeting and replied clearly and concisely to all the questions and clarified several other points relating to marriage and divorce. His answers have been embodied in the following paragraphs, which also contain further details to explain the subject matter at length for the general information of readers. The purpose, as stated earlier, is to educate our people and reduce cases of matrimonial disputes which finally end in "Talaq" with consequent damaging effects to the family and society at large.
These are: divorce to (1) a minor under nine (2) a woman in her menopause (normally around 50) (3) a woman in an unconsummated marriage (i.e. not physically completed by sexual intercourse) (4) a woman under "Khul’a" or (5) "Mubarat" (This is explained further in the following paragraphs. Generally these are divorces by mutual consent, accompanied by agreed compensatory payment or surrender of rights. The "Risalah" gives detail "masail" relating to this subject.
The first three of the above five cases of irrevocable Talaq require no Iddah (waiting period). Such a woman may contract another marriage soon after "Talaq".
Iddah of Talaq is three month bleeding periods. That is why she is advised to observe Iddah for three months. (Theoretically Iddah may end much earlier).
1)TALAQ - The first and most common method of dissolving marriage is by "Talaq". This is the ordinary Talaq given by the husband to his wife to free himself from the marriage bond. As already stated, if the Talaq is revocable, the husband has the option to take back his wife and normal relations are restored. This can happen by the husband talking to his wife in a manner which indicates his clear intention and willingness to take her back as his wife or by acting in a way to portray his clear wish of taking her back. Having sex with her, would conclusively establish that he has taken his wife back. No further proof would be needed as the "Talaq" is automatically terminated.
The Khula when granted is irrevocable. In the event of both wishing to reunite after Iddah, they will have to have a fresh Aqd/Nikah.
If the husband totally refuses to accept money or property in return and denies her the right to get the Khula, she can petition to the court and obtain the divorce but according to the Shariah Law she continues to be his wife until he or his representative (wakil) pronounces the "Sigha" of Talaq on his behalf. If he still does not do that, the Shariah Law provides a relief for her in that she can petition to her Marja setting out the grounds for the divorce. On receiving the petition, the Marja if satisfied, would normally communicate with the husband to inform him of the provision in the Shariah Law and advise him to allow him to act on his behalf to pronounce the "Sigha" for the divorce. If the husband does not respond to the Marja within a specified time, the Marja would then pronounce the "Sigha" unilaterally and relieve the wife from the marriage bond. The divorce given by the Mujtahid is irrevocable.
In this respect the Qur’an, which is the principal source of the Shariah Law, among other things, says in Surah 2 Ayah 231 "…………. And give them liberty, set them free and do not detain them in order to hurt them lest you might transgress, for whoever shall do this he has committed injustice to himself……….".
If during "Iddah" - the waiting period in "Khula" or "Mu’barah", both husband and wife change their minds and return to loving each other again, the husband can take her back, should he wish to do so, without a fresh "Nikah", provided that he returns and his wife accepts the amount of redemption which he had received from his wife.
Even if at the time of marriage, it is laid down as a condition of "Aqd" that the wife should be given a right to divorce, all that can be done by the husband is to give an irrevocable "wakalat" under which, when certain specified circumstances arise and the conciliation board fails to settle the dispute, the wife would have the right to obtain divorce through a third person who, acting on behalf of the husband, can pronounce and declare divorce under the "Sigha" of Talaq.
In our third and final part of this series on Talaq, we shall complete our topic by discussing the "Sigha of Talaq", the position of the gifts given by each party to the other, checks and balances kept by the Shariah Law, some important Fiqh masael relating to Talaq and the main provisions of the statutory law in Tanzania. It will also contain clarification and comments made by the President of the World Federation, Mulla Asgharali M.M. Jaffer, at the meeting of the Supreme Council held in Nairobi during April 1996. Make sure you get your copy and it would be ideal to keep together, the three issues in which this article has been serialised. .