CII, Divorce Laws, and Argumentum ad Baculum - Asif Iftikhar

CII, Divorce Laws, and Argumentum ad Baculum

 In my live interview in “NewsEye” with Dawn TV last month, I was unaware that Q.4:34 had been cited earlier to critique the Council of Islamic Ideology (CII) recommendations on divorce.  Any sound exegesis will show that this verse points out why a husband who fulfils his responsibilities (specifically his financial responsibility) deserves to be obeyed and respected by his wife.1 How this verse relates to the divorce procedure is a fascinating mystery to me. It seems the critics of CII recommendations had either not read the recommendations or had simply misunderstood their implications. The impression that they seemed to give was that if these recommendations are accepted, a woman may just wake up one day and say to her hubby: “You see, it so happened that last week I suddenly fell for this other guy in my office, and now I don't particularly feel attracted to you anymore. So, won’t you please be a good boy and  accept this last piece of my belle-lettres, which means that I am giving you the boot and you now have 90 days to buzz off.” This is a classic case of the fallacy of irrelevant conclusion. This is not what the CII has recommended.

Now imagine another situation: a wife -- who has been battered, shattered, clobbered, and wronged in the worst possible way and, therefore, under all laws of God and humans, has the moral and ethical right to request the court for divorce and the right to obtain one -- goes to a court of law, files her case, and returns to the “hallowed sanctity” of her husband’s home. In our society, if she doesn't already belong to a rich, powerful family or is not a direct descendent of Bruce Lee or Superman, we all know what is likely to happen. In many cases, she might not even get a chance to “sneak out” of “her home” again. In consideration of the situation, if the court, after she has sent her request, summons the husband and he uses the flimsiest of excuses (so effective in our society if you have the right connections) to delay the matter unnecessarily while the court is fully aware of the general tendency in our society of how perfect a gentleman to his wife he’s likely to be in the meantime, would it be against any verse of the Qur’ān or any directive in the Sunnah if the court also informed him of its decision on non-compliance of the court order: “If you don’t turn up to respond to the complaint in a reasonable period of time (say 90 days), the decision will be taken in absentia”? In such cases, the decision often goes against the person who is absent without any just or reasonable cause. On the other hand, if the person turns up with a reasonable cause to have matters settled first, he has all the right to demand that proceedings for resolution of various related matters be initiated. Now let’s suppose that, in consideration of our social malaise, the Parliament enacts a law prescribing a similar, general procedure. The big question here would be: Has the Qur’ān or the Sunnah prescribed any specific procedure for the woman to obtain divorce?

We all know that the Qur’ān has given a husband the right to divorce his wife and the wife the right to ask for it. But what is she to do if the husband refuses to grant her the divorce (even if she genuinely deserves it)? Since the Qur’ān does not spell out this detail, the Muslim jurists grant her the right to approach the imām (Head of the State) to whom the matter will then be referred. The court of law actually acts on behalf of the imām, who speaks on behalf of the Muslim collectivity (now represented through the parliament in matters pertaining to the enactment of law). In usual circumstances, the court of law will quite obviously give its verdict separately on each individual request. But then, does not the imām have the right to make general laws for deviant situations that pervade the society? For example, despite some contrary verdicts by the Prophet (sws) himself, Sayyidinā ‘Umar (rta) decreed that three pronouncements of divorce made at the same time should not be counted as one but as three.2 He took that decision owing to what he described as a change in people’s attitude.3 In case of the divorce procedure in question, no specific detail is given in the foundational text and the question relates to the judicious and just application of the court’s given right to give a verdict. A fortiori, this is clearly a matter which the foundational sources have left for ijtihād (independent reasoning). The recommendations by the CII do not take away the husband’s right to divorce his wife; they do not grant the wife the right to divorce the husband; they do not circumvent the wife’s obligation to request the state for divorce should the husband refuse to grant it. These recommendations prescribe the procedure for the State response to her request in the given circumstances to ensure that there is no or little possibility of exploitation of women that generally results owing to various social, cultural, legal, and administrative factors in our society.

A person might argue that these recommendations are unwise; for example, someone might hold that 90 days are not sufficient to resolve financial or other matters in a divorce case and recommend more time. However, how the recommendations are a negation of the sharī‘ah is inexplicable. In this context, let us consider the views of the CII as expressed by one of its members, Jāvīd Aḥmad Ghāmidī:

Marriage is not just about bringing the physical relationship between man and woman within the bounds of law. It is a contract that lays the foundation of a family. This institution of family is an indispensable human requirement. Without it, many basic physiological, psychological, and social needs remain unfulfilled. The institution is founded on a woman’s decision to accept her bond with a man not as his friend but as his wife. The decision implies that she has accepted the man as the head of the institution that their matrimonial bond will create. Just as this institution makes it incumbent upon the man that he take the financial responsibility of his wife and children, it also entails that, in the unfortunate case of the need for divorce, the woman not take any step to end marriage without first resolving matters with the man. Therefore, in a situation requiring dissolution of marriage, she will not divorce the husband; she will ask for divorce. In usual circumstances, it is expected that a decent husband will not refuse his wife’s request in a situation where no reasonable possibility of reconciliation exists. However, if the husband does not accept her request, what is the woman to do? The sharī‘ah does not answer this question; instead, as with many other matters related to life, it leaves this matter also to our discretion (ijtihād). Since the Prophet time (sws), the procedure that has been adopted for this purpose is that the woman then approaches the court. In our times [in societies as ours], this step is often fraught with innumerable difficulties for the woman. One suggestion to resolve this problem is that the man be asked to delegate his authority in divorce to the woman. However, such demand is again not easy to make in our society, especially on the occasion of marriage. Furthermore, such stipulation also negates the spirit and the wisdom in not giving a woman the right to divorce her husband. Therefore, in our opinion, a law should be enacted at the level of the State that, after a woman’s request for termination of marriage, if the husband refuses to divorce her in the next 90 days, the marriage will stand dissolved; if there are any unresolved matters pertaining to wealth or maintenance, either party may approach the court for resolution. Another possibility is that, in the current marriage form, the section for the option of transferring the right of divorce to the wife be replaced with the following statement:

“This marriage contract takes effect with the proviso that, if the wife ever makes a written request for divorce, the husband shall be obliged to divorce her within 90 days. If he does not do that, it shall be deemed that an irrevocable divorce from his side has taken effect. Thereafter, if the husband demands the return of any property or wealth that she received from him, she shall be obliged to return him that property or wealth except her mahr (bridal gift that the husband gives as a token of his commitment) and maintenance. In case of any difference of opinion regarding the return of this property or wealth, she shall refer the matter to the court.”

It is expected that this form will save the woman and her family the embarrassment of laying down this condition as a demand from their side on the occasion of the marriage ceremony. If and when the divorce proceedings are initiated in accordance with this stipulation, the husband will get a 90-day period to convince the woman [and her family] to withdraw her request. The divorce, nevertheless, will be from the husband’s side, and, therefore, the sanctity and the wisdom in the Divine law will be preserved.4

As for the conditions generally prescribed by the jurists for dissolving marriage on the woman’s request (as cruelty, impotence, irresponsibility, etc.), it is interesting to note that the Prophet (sws) himself and decided a case of the wife of Thābit Ibn Qays primarily on the grounds of her personal dislike of her husband.5 On the other hand, the Prophet (sws) refused the request for divorce by the wife of ‘Abd al-Raḥmān Ibn al-Zubayr al-Quraẓiyy when the Prophet (sws) confirmed that she had falsely accused her husband of impotence.6The Hadīth sources also indicate that she was a rebellious wife, who just wanted to return to her previous husband.7 These examples show that the court can give different verdicts on the same matter in consideration of the varying circumstances. In CII recommendations, since the husband has sufficient time to bring any pertinent matter to the court’s notice for a stay, the possibility of reversing the decision in the husband’s favour is not precluded.

It is ironic how some critics from the traditionalist quarters will so easily accept the resilience of their own ‘ulama (religious scholars) in matters pertaining to ijtihād, but will immediately jump to the conclusion that any other scholar involved in the same exercise, regardless of how competent or sensible that person may be, has negated the directives in the foundational sources of Islam. For example, one can well imagine what would have happened if it had been the CII that had recommended that, contrary to the general Ḥanafī position, apostasy by the wife should not dissolve the marriage in our times. But, no problems here as it was Mawlānā Ashraf ‘Alī Thānawī (d. 1943) who made this suggestion in British India where the apostate-wife could no longer be forced, in accordance with the dominant Ḥanafī view, to reconvert to Islam and remarry the same spouse.8 Nevertheless, the CII has now done something so abominable that this body, rather than marriage of a helpless woman, should be dissolved. Prof. Dr Khalid Masud, despite being one the most accomplished Pakistani scholars of international repute, must be replaced by a traditionalist muftī to safeguard the frontiers of Islam. Otherwise … well, in the end, argumentum ad baculum (argument by the stick) is the most well-known and well-publicized form of reasoning in our society. We have all seen in the recent Lāl Masjid tragedy how helpful such approach can be to Islam and the Muslims. And speaking of the religious champions of chauvinism who often quote (but seldom understand) Q.4:34 to assert male dominance, I wonder if their remarkable hermeneutics might lead them to infer from the same book that on the Day of Judgment, the Pakistani Muslim woman might stand up and ask: “For what sin was I wronged?”9

1. For example, see Muftī Muḥammad Shafī‘, Ma‘ārif al-Qur’ān, vol. 2  (n.d.; reprint Karachi: Idārat al-Ma‘ārif, 2007), 396-398.

2. Muslim, No: 3673.

3. Ibid.

4. Jāvīd Aḥmad Ghāmidī, “Ṭalāq kā Ḥ̣aqq,” Ishrāq 20 (December 2008): 2-3

5. Bukhārī, No: 5273.

6. Bukhārī, No: 5825.

7. Ibid.

8. Mawlāna Ashraf ‘Alī Thānawī, Aḥkām-i ṭalāq wa Niẓām-i shar‘ī ‘adālat, ya‘nī al-Ḥilah al-Nājizah Jadīd, ed. Khurshīd Ḥasan Qāsimī (Lahore, al-Fayṣal, 1996), 190-93; originally published as al-Ḥīlah al-Nājizah li’l-Ḥalīlah al-‘Ājizah (1931; Karachi: Qur’an Maḥall, n.d.).

9. Q. 81: 8-9, while depicting the beginning of the Reckoning, makes a reference to the gruesome pre-Islamic Arabian custom that condoned the burial of a girl by her father to avoid poverty or shame: “And when the girl buried alive shall be asked for what sin was she killed…”


With thanks to Monthly Renaissance Written/Published: Jan 2009
Author : Asif Iftikhar
Uploaded on : Oct 14, 2016
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