Alhassanain(p) Network for Heritage and Islamic Thought

Nafaqah (Financial Support) and its Philosophy

According to Islam providing for the expenses of the family, including the expenses of his spouse, is a husband’s duty. A man must finance all his partner’s expenses, even if she is wealthier than he. The necessity of nafaqah is one of the certain commandments of Islam. It is the right of a wife. If a husband does not pay it, it remains a debt upon him and must be paid on demand. If he refuses to pay nafaqah, an Islamic religious magistrate may divorce them at the wife’s request.

Imam Muḥammad Bāqir (‘a) has declared:

أبوبصیر، قال: سمعت أباجعفر (ع) یقول: من کانت عنده امرأة فلم یکسها ما یواري عورتها، و یطعمها ما یقیم صلبها کان حقّاً علی الإمام أن یفرّق بینهما

[Regarding] he who has a wife but does not provide her adequate clothing and food, it is the duty of an Imam to separate them.[112]

Isḥāq ibn ‘Ammār has stated:

إسحاق بن عمّار، قال: قلت لأبی عبدالله (ع): ما حق المرأة علی زوجها الذی إذا فعله کان محسناً؟ قال: یشبعها، و یکسوها، و إن جهلت غفر لها

I asked Imam Ṣādiq (‘a), ‘What rights does a wife have upon her husband, which if he fulfills he will be virtuous in this respect?’ He replied, ‘He must provide her food and clothes and forgive her indiscretions.’[113]

Nafaqah consists of all needs of a family, with regard to available resources and conventions [‘urf] of the time, place, and social level of the family. Some of these needs are enumerated below:

1. Food, fruit, and other such needs according to standard requirement

2. Seasonal clothing according to the needs and social level of the family

3. Carpeting and beds

4. Cooking, eating, and drinking utensils

5. Cooling and heating appliances

6. Living quarters that provides comfort for the family and is in accordance with the social standing of the family

7. Personal care and medical expenses

8. Hygienic and cosmetic products

Criticism

The issue of nafaqah has been criticized such: Legislation of this commandment has dishonored women and through it, they are considered stipendiary servants who are given food, board, and clothing for their round the clock exertions and onerous housework.

Response

In answer, it must be argued that this criticism is derived from the enmity or benightedness of the critic because, according to Islam, housework is not the duty of a wife; even regarding fostering, tending, and nursing children, no responsibility has been placed upon a wife. She can choose to do nothing and ask for a servant or she can ask for wages for performing housework and fostering and nursing her children. Even so, her nafaqah has been placed upon her husband.

According to this, how can one say that women are dishonored and have been considered stipendiary servants?

It is worthy of note that even though housework and house management is not the duty of women according to the law of Islam, it is considered morally crucial and essential for familial affection and intimacy. It is mentioned in Hadith as حُسن التّبعُّل (taking good care of one’s husband) which was mentioned previously, in chapter five. A mistress of the house who is interested in the endurance and warmth of the family endeavors as far as she is able to foster and edify her children and efficiently manage her home; albeit in willingness and relish not due to legal compulsion and coercion. The wives of the Prophet (ṣ), his daughter Zahrā, and the wives of the Immaculate Imams and Saints of Islam were such.

Criticism

Even though men and women need each other to satisfy their ardor, have children, and raise them, why are all of the family’s expenses, even the wife’s personal expenditures a husband’s responsibility? Why should husbands work and toil while wives eat and sleep and do not even do housework? Is this not unfair to husbands? Why should women be their husbands’ dependants so they are forced to obey them and tolerate their bullying and restrictions? Is it not better for both women and men to work and jointly pay for the family expenses?

Response

Several points must be expounded in order to refute this criticism.

1. Nature and genesis has placed heavy burdens of responsibility upon women, who are compelled to carry them out; such as pregnancy, giving birth, nursing their babies, nurturing, fostering, and training and edifying their young. These demanding responsibilities require great time and effort to be performed well, and are not compatible with working extensively outside one’s home.

2. Women have monthly cycles and require rest during these periods.

3. Housework and child care are not women’s duties either canonically or legally; however, according to ethics and mores, they cannot eschew these desiderata because they are considered essential to familial life and greatly affect the beauty and repose of the home and hearten husbands.

4. Women are delicate, elegant, and beautiful beings and these are their most important instruments of attraction and charm for their husbands. Working in difficult and tiresome jobs outside their homes harms the elegance and loveliness of women, which in turn decreases their attractiveness for their husbands; this is neither to women’s nor men’s benefit. If both men and women work to pay for living expenses, they will have to compete with men and therefore might be required to accept arduous jobs such as laboring in mines, ironworks, and automobile, petrochemical, and cement industries, civil engineering, railroads, trucking, and grueling graveyard shift jobs.

If women and men were equally obligated to work and provide living expenses, naturally, such problems could arise.

Accordingly, it is clear that women cannot be forced to work like men in order to pay for expenses. Thus, Islam has made men accountable for the family’s livelihood, so that women may fulfill their genetic duties at their own leisure and with ease of mind, endeavor in fostering and edifying their children, preserve their cheeriness and attraction, maintain their place in their spouse’s hearts, and make their home a place of love and tranquility.

Hence, with love of wife and children, peace of mind, and gratified with their lives, men endeavor more diligently to produce the family’s livelihood and bestow it upon their partners with willingness and genuine sincerity.

In consequence, pragmatically, with true regard to the interests of men, women, and their children, and to fortify the cornerstones of married life, Islam has given men the duty of providing for the family’s nafaqah and has not irrationally sided with one party and imposed on the other.

It is in the interests of both women and men that nafaqah be the charge of men and women be the dependants of men. Because men are attracted to and fond of women, they desire to spend for them, and not only are they without resent, they are completely satisfied and feel good about themselves when they behave in this way. The financial dependence of women is not a drawback and it does not make them stipendiary servants; rather, it strengthens the backbone of marriage. Basically, in familial life, a man’s earnings belong to the family, they are utilized for acquiring necessities; therefore, financial independence or the lack thereof is not an issue.

Here, it must be pointed out that the aim of Islam in making men responsible for nafaqah is not to thwart employment of women, make them consumers and ‘stay-at-homers’, and obstruct them from having jobs and responsibilities outside their homes. Instead, Islam intends that women not be forced to work and provide living expenses; however, with regard to her abilities, preferences, and facilities, and the mutual agreement of spouses, a wife can choose an acceptable job and perform her responsibilities outside her home, and thus have an independent income. Naturally, her income belongs to herself and she need not use it for family expenditures. A virtuous woman would, however, with purity of heart, like her husband, prefer to donate it to the family so that it would have a part in managing and improving familial life and increase serenity and love within the entire family.

Women’s Inheritance in Islam

In Islam, men and women have equivalent rights, including but not limited to working, acquiring wealth, possession of property, and the concept of inheritance. The Quran declares:

لِّلرِّجَالِ نَصيِبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَ الأَقْرَبُونَ وَ لِلنِّسَاء نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَ الأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَّفْرُوضًا

“For men there is a share from what their parents and close relatives leave, and for women there is a share from what their parents and close relatives leave, be it little or considerable; a definite share.”[114]

This verse makes it clear that, like men, women inherit and have a definite share. The verses regarding inheritance were revealed to the Prophet (ṣ) at a time that women in the world, and especially among the benighted Arabs, were bereft of worth or status. In the Age of Ignorance, men were ashamed when they heard that their newborn child was a girl and many innocent baby girls were even buried alive. The possessions of the deceased went to their sons or eldest son only, and girls were deprived of inheritance altogether unless a father determined an amount in his will or his sons took pity upon their female siblings and gave them something. Thus, when the verse of inheritance gave women a definite share in the legacy, some people were astonished. Regarding the conditions revolving around this verse’s revelation, Imam Fakhr Rāzī has written:

Ibn ‘Abbās gives account that Aūs ibn Thābit Anṣārī died and left behind his wife and three daughters. Two of his male cousins by the names of Sawīd and ‘Arafjah, who were his inheritors, came and took all his possessions. Aūs’ wife came to the Prophet (ṣ) and told her story and said, ‘Aūs’ two inheritors left nothing for my daughters and I.’ The Prophet (ṣ) said, ‘Return home until I see what God instructs.’ Subsequent to this was the revelation of the aforementioned verse, which shows that both men and women inherit.[115]

Indeed, by legislating women’s inheritance in such times, Islam has honored women and has considered their status as inheritors equal to that of men. However, in Islamic law, the share of women’s inheritance is half that of men’s. Allah, the Almighty, has stated in the Quran:

يُوصِيكُمُ اللّهُ فِي أَوْلاَدِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الأُنثَيَيْنِ فَإِن كُنَّ نِسَاء فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَ إِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ وَ لأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَ وَرِثَهُ أَبَوَاهُ فَلأُمِّهِ الثُّلُثُ فَإِن كَانَ لَهُ إِخْوَةٌ فَلأُمِّهِ السُّدُسُ مِن بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ آبَآؤُكُمْ وَ أَبناؤُكُمْ لاَ تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعاً فَرِيضَةً مِّنَ اللّهِ إِنَّ اللّهَ كَانَ عَلِيما حَكِيمًا

“Allah charges you in regard with your children: a son’s share is equal to the share of two daughters; if the [children] are [only] daughters and two or more, their share is two thirds of the legacy, and if there is only one daughter, her share is half [of the legacy]; and each of the parents inherit one-sixth of the legacy if the deceased had children, and if the deceased had no children and the parents are the only heirs, the mother inherits one-third; if the deceased had brothers, the mother inherits one-sixth; [all this is] after executing the will and settling the debts of the deceased. You do not know which of your parents and children benefit you the most. This is Allah’s injunction; surely Allah is All-knowing, All-wise.”[116]

According to Islam, sons inherit twice that of daughters, brothers twice that of sisters, and husbands inherit twice that of wives, except regarding the father and mother of the deceased: if they are living at the time of their child’s death, each equally receives one sixth of the deceased’s legacy.

Criticism

The law of inheritance has been thus faulted: Why have women been discriminated against, with allotment of half the share of men? Is this not prejudice and oppression?

Response

The difference in the inheritance shares of women and men must not be considered dissociate from other laws and commandments and discussed and judged independently. It is true that, regarding inheritance, Islam has differentiated between men and women. However, this differentiation is due to realistic perception and the financial obligations that men bear. In Islam, men have to bestow Mihr upon their wives. All the expenses of a wife and children must be paid for by men. Thus, men must work diligently to provide all living expenses whereas women are not required to work and pay for such living expenses. If a woman has wealth, she is not required to spend it for her family; she may save it if she desires. All possessions that she gains through work, Mihr, gifts, inheritance, or any other legitimate method are solely hers and she can amass it all if she wishes. This is in contrast to men, who are legally and canonically required, in addition to bestowing Mihr, to provide all living expenses of their spouses and all other members of the family.

Thus, women are partners in all the possessions of their husbands, including their husband’s inheritances, which are indirectly given to them; while a woman’s inheritance is absolutely and unquestionably hers only. Because of this, Islam intended to assist men by formulating the laws of inheritance in this manner.

With regard to this fact, can one still say that Islam discriminates against women in regard to inheritance?

If you fairly examine the matter, you will affirm that not only have women not been treated in a biased manner, they have been supported. Various Hadith indicate this reason. Imam Riḍā (‘a) has declared:

عن الرضا (ع) قال: علّة إعطاء النساء نصف ما يُعطي الرجالَ من المیراث؛ لأنّ المرأة إذا تزوّجت أخذت و الرجل یُعطی؛ فلذلک وفّر علی الرجال. و علّة أخری في إعطاء الذکر مثلي ما تُعطی الأنثی فی عیال الذکر إن احتاجت، و علیه أن یعولها، و علیه نفقتها، و لیس علی المرأة أن تعول الرجل، و لاتؤخذ بنفقته إن احتاج فوفّر علی الرجل لذلک و ذلک قول الله: الرِّجالُ قَوّامُونَ عَلَی النِّساءِ بما فَضَّلَ اللهُ بَعضَهُم عَلی بَعضٍ و بِما أَنفَقُوا مِن أَموالِهِم

The reason that women receive half the share of men from inheritance is that when a woman marries, she takes and the man gives; for this reason, men have a larger share. Another reason is that a wife is the dependant of her husband and he must pay for her expenses, but a wife is not required to pay her husband’s expenses or financially support him in need. Hence, men have a larger share and this is [the interpretation of] the declaration of Allah: “Men are the protectors and supervisors of women because of the advantage Allah has given some over others and because they support them from their means”[117]

Hishām ibn Sālim narrates:

هشام بن سالم، قال: إنَّ أبي العوجاء قال للأحول: ما بال المرأة الضعیفة لها سهم واحد و للرجل القوي المؤسر سهمان؟ قال: فذکرت ذلک لأبي عبدالله (ع). فقال: إنَّ المرأة لیس علیها عاقلة، و لا نفقة، و لا جهاد-و عدّد أشیاء غیر هذا- و هذا علی الرجال؛ فلذلک جُعل له سهمان و لها سهم

Ibn Abil‘ūjā’ said to Aḥwal, ‘Why should a weak woman get one share while a wealthy man gets two shares?’ He answered, ‘I asked this same question of Imam Ṣādiq (‘a), he answered: ‘Āqilah (blood price)[118] , nafaqah, and Jihad - and some other things - are not obligatory for women, they are for men; thus, two shares have been designated for men and one for women.’[119]

Islam and Polygamy

Islam allows polygamy and permits men, under specific circumstances, to have at most four wives at any given time.

Polygamy was customary before Islam and was not abrogated with the coming of Islam; instead, Islam has corrected and set various conditions for the practice. The principle was permitted, but polygamy was limited to four wives.

In authorizing polygamy, Islam does not have the intention of siding with men and encouraging them to form harems or overindulge in sexual desires and debauchery or to overlook the rights of women and oppress them. Rather, Islam’s aim is to uphold a range of women’s natural rights - the right to marriage, forming a family, and having and rearing legitimate children. Of course, the rights of men have also been kept in mind. The permitting of polygamy, while observing prescribed conditions, is a social necessity and in the ultimate interests of both women and men and in order to elucidate this matter, the following two premises are indicated.

First premise: Even though female births are not more than that of males, statistics show that the number of women who are available for marriage is often more than men. There are two reasons for this:

First, the fatalities of men, especially young men, exceed fatalities of girls and women. This becomes evident by referring to the casualties of incidents such as war, falling from heights, getting buried under debris, drowning, mine and industry mortalities, car accidents, work related accidents, etc. Because of these accidents, which are not few, the equilibrium between men and women is lost and the ratio of women to men increases. This is evident in the human casualties of recent wars, such as the wars of Iraq and Iran, America and Iraq, Russia and Afghanistan and their internal wars, Serbia and Bosnia, and other wars and acts of aggression that occur all over the globe. The human death toll in these battles is monstrously high and the majority of deaths concerns men and youths that either had not married or had married recently before their demise. Now consider the increase of women over men as a result of these wars.

Second, some scientists hold that women’s resistance to diseases is higher than that of men. Studies of the deaths of children, adolescents, and young adults affirm this theory. The average lifespan of women is longer than men. Statistics show a higher rate of widowed women than widower men.

Thus, the number of single women who want and need to marry is higher than the number of single men who need and desire marriage. We all have seen many widowed women who wish to remarry a desirable man but cannot due to the circumstances. On the other hand, there are not many unmarried men who wish to marry that cannot find a woman willing to marry.

Second premise: One of the natural rights of all human beings is the right to marriage and formation of a family; just as humans have the right to have jobs, homes, health and hygiene, food, and clothes, they also have the right to marriage. All humans, both males and females, have the right to marry, enjoy familial peace and love, develop lasting emotional attachments, and bring forth and raise legitimate children. As human beings, women have this right. Thus, social laws must be regulated in such a manner that this natural right is readily available to all.

In short, in every society there are a large number of unmarried women who need and desire to marry and if they do not, they may be driven to deviation and corruption. The number of single men who are willing to marry widows is not high enough to appease the requirements of every society, due to the fact that young men usually prefer to marry previously unmarried women, who are already more than enough to satisfy their numbers. On this account, what must widows who wish to remarry do? In this case, the society must either accede to sexual freedom, corruption, and unrestraint, such as has been accepted in the West or, as in Islam, must follow a polygamous system.

In order to resolve this problem to the advantage of widowed women, who wish to marry and perhaps start a family, and prevent social corruption and sexual deviations, Islam has allowed polygamy.

Another justification for polygamy is sterility or incapacity of a man’s spouse. In the event that a woman is completely sterile or pregnancy is harmful to her due to an incurable illness, and her husband feels the need for a child, both reason and conscience give assent to his right to remarry.

Additionally, if one’s wife is ill and cannot satiate the sexual needs of her husband, remarrying becomes a necessity for the man. In order to resolve this problem, the man either has to divorce his first wife or marry again without divorcing her. The second option is to the advantage of the first wife because she does not become destitute and alone in her illness.

Nevertheless, it must be stressed that in light of the fact that the most important benefit of marriage is familial love, tranquility, and affection, monogamy is far preferable to polygamy. Moreover, Islam does not encourage men to remarry to appease their concupiscence and to sacrifice familial love and peace for evanescent pleasure. The reason that Islam acquiesces to polygamy is due to a social necessity and in order to protect the rights of widowed women and women who need to marry.

Conditions of time, place, societies, and personal resources and facilities differ regarding this issue. If there is no personal or social necessity for polygamy, monogamy is preferable and if polygamy is required in a society or for some persons, women and men must cooperate in attaining this goal. A man who intends to remarry for one of these reasons must adhere to his financial and physical means and in the event that he does not have the means to manage two households, he must forego remarriage. Then, if he has the means, he must discuss the issue with his wife and prove to her the necessity for remarriage, assure her that he will observe justice and equality among his wives, and obtain her consent in any fair manner possible.

The duty of such a wife is self-sacrifice in order to ensure personal and social necessities; she must set aside harsh emotions, mind the predicament and needs of her husband or widowed women, and above all else, she must think of God’s satisfaction and thus, allow her husband, his legitimate request.

If remarriage results through mutual consent of husband and wife, it will be far less problematic for everyone involved.

Conditions for Polygamy

Islam tolerates polygamy; however, it has placed various conditions for it that, in practice, are very difficult to observe. These are as follows:

1. Possession of sufficient financial resources to provide all expenses of each family

2. Physical prowess for completely satisfying the sexual desires of each wife

3. Observance of complete justice and equality among each family in every way without any favoritism

Allah, the Almighty has declared in the Quran:

...فَانكِحُواْ مَا طَابَ لَكُم مِّنَ النِّسَاء مَثْنَى وَثُلاَثَ وَرُبَاعَ فَإِنْ خِفْتُمْ أَلاَّ تَعْدِلُواْ فَوَاحِدَةً ...

“…then marry [other] women, who seem virtuous to you, two or three or four; and if you fear that you cannot do them justice, then one [only]…”[120]

This verse gives permission for polygamy on the condition that there is no likelihood of refraining to observe fairness and justice, which is rather unfeasible and very hard to attain.

A man who has more than one wife is obligated to observe equality, justice, and fairness among his wives in the amount, type, and quality of nafaqah, sexual enjoyment and intercourse, and even in mannerism. It is the duty of polygamous men to behave comparably in all events, even if their wives are different in age, beauty, character, social status, and other virtues and perfections.

It is clear that completely adhering to justice and fairness is quite challenging and few men can be sure about their ability to shoulder such heavy responsibilities whereas the Quran makes it quite clear that if they doubt their ability to behave equally and justly with their wives, they should suffice themselves with one wife.

Consequently, polygamy in Islam is a very onerous and high-liability undertaking, something that most men are not competent enough to accomplish.

Divorce in Islam

Islam tolerates divorce and separation of a husband and wife under specific conditions; however, Islam regards divorce as abhorrent and reprehensible. Thus, it has been censured in Hadith. Imam Ṣādiq (‘a) has declared:

عن أبی عبدالله (ع) قال: إنَّ الله عزّ و جلّ یحبّ البیت الذی فیه العرس، و یبغض البیت الذی فیه الطلاق، و ما من شیء أبغض من الطلاق

Verily, Allah loves a house in which a wedding is held and hates a house in which a divorce is conducted and there is nothing more hateful than divorce.[121]

Noble Ṣādiq (‘a) has elsewhere announced:

عن أبی عبدالله (ع) قال: ما من شیءٍ اُحلّه الله أبغض إلیه من الطلاق، و إنّ الله یبغض المطلاق الذّواق

Among that which Allah has made permissible there is nothing He hates more than divorce and Allah hates a man who divorces and marries many women.[122]

He has also stated:

عن أبی عبدالله (ع) قال: بلغ النبی (ص) أنّ أبا أیّوب یرید أن یطلّق امرأته فقال رسول الله: إنّ طلاق امّ أیّوب لحوب، أی إثم

When the Prophet of Allah heard that Abu Ayyūb (Ayyūb’s father) intended to divorce his wife, he declared: The divorce of Umm Ayyūb (Ayyūb’s mother) is a sin.[123]

Imam Muhammad Bāqir (‘a) cited from the Prophet of Allah (ṣ):

عن أبی جعفر (ع) قال: قال رسول الله (ص): أوصانی جبرئیل علیه السلام بالمرأة حتی ظننت أنّه لا ينبغي طلاقها إلّا من فاحشة مبیّنة

Gabriel (‘a) commended wives to such an extent that I presumed divorce is not permissible unless a wife performs an‌ explicit act of unfaithfulness and infidelity.[124]

Noble Ṣādiq (‘a) had stated:

عن الصادق (ع) قال: تزوّجوا و لا تطلّقوا؛ فإنّ الطلاق یهتزّ منه العرش

Marry and do not divorce because surely divorce shakes the very Throne of God [‘Arsh].[125]

The Prophet of Allah (ṣ) has proclaimed:

قال رسول الله (ص): ما أحبّ الله مباحاً کالنکاح، و ما أبغض الله مباحاً کالطلاق

Allah loves no permissible like marriage, and Allah hates no permissible like divorce.[126]

Islam holds divorce as an extremely ugly and vile act, which must be avoided within the bounds of possibility as it even rocks the very Throne of God. Even though it has not been forbidden, for various reasons, it is severely condemned. In order to prevent divorce, Islam campaigns against its causes, some of which are enumerated below:

One influential factor for divorce is the disheartenment of a husband for his legitimate wife and his fondness and affection towards non-maḥram women. The chief instrument for this is lack of adequate Hijab among women and leering in men. When a man looks upon a woman who is more beautiful and attractive than his own wife he may become infatuated with her and become disheartened with his wife. Little by little he makes familial life bitter by finding faults, seeking excuses, and picking quarrels, which might ultimately lead to divorce.

In order to keep this from happening, on the one hand, Islam enjoins women to observe Ḥijāb, cover their attractions from men, and refrain from being alluring for anyone but their own husbands. On the other hand, Islam directs men to abstain from looking at, and joking and bantering with non-maḥram women. If their eyes happen upon a non-maḥram woman, they must not linger and immediately look away.

Another agent for divorce is indifference of spouses towards one other and apathy and lack of passion in fulfillment of the sexual needs of one another. Many divorces and deviations occur when a husband or wife is not sufficiently sexually gratified.

To prevent this, Islam instructs women to wear their best clothes when at home, make themselves up according to their husbands’ wishes, and display themselves with ardent fervor. Moreover, Islam charges men to observe cleanliness and personal hygiene, style themselves, and show a handsome and warm demeanor for their wives.

Furthermore, Islam advises both women and men that when making love and performing sexual acts, they must not only think of their own pleasure and release but seek to give pleasure and gratification to their partner also.

A third catalyst for divorce is misconduct, discourteousness, carping, picking quarrels, and stubbornness in a husband, wife, or both. Statistics show that the prime reason for most divorces is behavior incompatibility of spouses.

Islam strives to pre-empt these factors and strengthen the cornerstones of the holy institution of family by prescribing various rights and responsibilities for men and women. In addition, it advises against selfishness, egocentricity, autocracy, and recalcitrance, and advocates tolerance, forgiveness, and resolving differences with reason, fairness and affection.

The moral obligations of both women and men have been explicated in detail in various books on ethics, but some of these have been indicated in chapter five.

Islam has also anticipated the need for a team of arbitrators to resolve the disputes of spouses and preclude divorce. This team consists of two mediators; one chosen by the wife’s family, and one by the husband’s. They may be of the couple’s family or unrelated. The Quran states:

وَ إِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُواْ حَكَمًا مِّنْ أَهْلِهِ وَ حَكَمًا مِّنْ أَهْلِهَا إِن يُرِيدَا إِصْلاَحًا يُوَفِّقِ اللّهُ بَيْنَهُمَا إِنَّ اللّهَ كَانَ عَلِيمًا خَبِيرًا

“And if you fear a breach between the two, then choose an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah shall effectuate concord among them. Surely, Allah is All-knowing, All-aware.”[127]

In order to bring about reconciliation, the team of arbitrators arranges a meeting with the wife and husband. They unearth the problem, hear out both sides with punctiliousness and fairness and advise, in friendship and love, each person regarding their mistakes and shortcomings. They remind each of the spouses of their responsibilities. Then they enjoin the couple to forgiveness, tolerance, observance of marital duties, and determination to fortify the holy institution of their marriage and family. They also warn them of the detrimental effects of discord and separation. In this manner, they restore harmony among the pair.

However, it must be expressed that the reconciliation brought about by Islamic arbitrators is different from the settlement that results from the force of law. Judicial settlement is like the placating of two partners or neighbors or two persons who are hostile towards one another by obstructing them from encroaching upon each other’s rights, whereas the reconciliation brought about by the team of arbitrators has nothing to do with judicial constraint; rather, it results from rectifying rancor, uprooting the source of the disputes, endeavoring to create mutual understanding, consolidating familial love, heartening the couple regarding their life together, and normalizing the relations between them. The merits of this method over the modern judicial method are obviously far superior. If, however, after careful scrutiny and necessary action, the arbitrators realize that the conflicts are excessively deep-seated and that the flames of marital love and affection have been completely quenched and there is no hope for concord after encouraging forgiveness and forbearance, they may leave the couple to their own devices or they advise them to seek a divorce.

Another instrument that may prevent divorce or at least forestall it is the payment of Mihr. A man who has paid his wife’s Mihr, does not have the right to take it back, and if he has not, he must pay it completely before divorce. The Holy Quran states:

وَ إِنْ أَرَدتُّمُ اسْتِبْدَالَ زَوْجٍ مَّكَانَ زَوْجٍ وَ آتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلاَ تَأْخُذُواْ مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَاناً وَ إِثْماً مُّبِيناً* وَ كَيْفَ تَأْخُذُونَهُ وَ قَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَ أَخَذْنَ مِنكُم مِّيثَاقًا غَلِيظًا

“And if you desire to take a wife instead of a [current] wife and have given her much wealth, do not take back any part of it; would you take it back with slander and blatant sin. And how shall you take it while you have taken pleasure of each other and after they have taken from you a strong pledge (at the time of marriage)”[128]

Mihr is the canonical and lawful right of women and they can collect it in any way possible. If the husband has not given it, he must pay it before the divorce. If it is a large enough amount, it can to some extent impede divorce, especially for people who are not financially well-off.

Another factor is keeping and fostering children and providing for their expenses, which are both the duty of men. In the event that the couple’s conjugal relationship is normal and the husband and wife live together, women mostly handle the responsibility of fostering children. This gives men a better opportunity to work and provide family expenses.

However, if they are separated by divorce, the husband must take custody of their children and rear them (in addition to providing their expenses) and jointly accomplishing these two endeavors is very difficult. Additionally, children need motherly affection and this is a need that a man cannot deliver himself. This is why if a father contemplates the matter well and examines the consequences and difficulties of such an action, he usually is discouraged from getting a divorce.

Consequently, the existence of children and the responsibility of fostering them may be considered a support for the persistence and consolidation of the family institution and an obstruction for divorce.

Another factor is the necessity for two righteous witnesses. Islam necessitates the presence of two righteous witnesses when the formula of divorce is recited because it must be recited correctly, which is not achievable by just anyone. Also, the two righteous witnesses must be present when the formula is recited so they may bear witness to the recitation if necessary in the future.

Because a reciter of the divorce formula and two righteous witnesses are not easily available and require time to find, men are impeded from a hasty divorce.

In the meantime, it is possible that the husband sees reason and attenuates his resentments and stubbornness, thinks well about the downsides of divorce and its future complications, and thus changes his mind. Well-wishing friends and advisers can help in this matter. Even after all the necessary conditions are accumulated, the reciter of the divorce formula and the witnesses do not carry out the divorce immediately. They endeavor to resolve differences and make peace among the couple and delay the divorce as long as they deem necessary to give the man and woman more time to think about their future and change their minds. Because Islam is opposed to divorce, it attempts to prevent it in any manner possible.

Finally, after all the conditions of divorce are fulfilled and the process completed, Islam does not consider the marriage terminated; it has determined a duration called ‘iddah[129] in which after a revocable divorce a man may return to his previous marriage by mutual consent without having to recite the formula of marriage and determine Mihr anew.

Islam favors the continuance of marriage to such degree that even after the divorce it gives the couple an opportunity, for the duration of ‘iddah, to contemplate well and return to one’s spouse if they both consent.

The Philosophy of Divorce

Some might criticize the principle of divorce thus: If divorce is truly hated by Islam, as has been previously stated, why has it not prohibited it? Essentially, how is the union of legitimacy and detestability possible? Why has Islam permitted divorce and what is its philosophy?

In answer it must be said: Even though divorce is hateful and ugly, sometimes it is a necessity that cannot be avoided. For instance, surgical removal of parts of the body is painful and abhorrent but it is crucial in certain conditions and is to the benefit of humans; such as when a person has cancer. If enduring the marriage is torturous and unendurable for the husband and wife and the problem cannot be solved in any other way, divorce may be the best solution.

For example, one of these instances is where the fires of a husband’s love and affection for his spouse are completely extinguished. Here, the woman has fallen from her beloved status of attractiveness and the foundations of the family are in ruins. A home that does not have love is cold, dark, and sinister; not only has it lost its tranquility in the eyes of the wife and husband, it is a forbidding prison and fiery hell.

Matrimony is a natural union of a man and woman. It is completely different from all other social contracts such as transactions, leases, mortgages, and peace treaties. They are wholly social and contractual with no instincts and nature involved whereas marriage is a natural union that has its roots in the essence and instincts of couples and stems from natural needs and desires. Marriage results from the inner attraction of a man and woman and their desire for unification, linkage, and unanimity.

This attraction has been instilled differently in each gender. For men it manifests as love and affection, desire and possession of the female individual. For women it exhibits as self-beautification, allure, and captivation of a man’s heart. Men want to possess their beloved and women want to be their husbands’ beloved and attain their hearts.

The foundations of family are grounded on these two principles and if each part of a couple achieves their inner desires the institution of family becomes warm, pleasant, and beautiful. Men are heartened by their family and work hard to secure the ease and welfare of the family. Women consider themselves happy and successful and endeavor diligently in taking good care of their husbands, children, and home.

One the other hand, if a husband does not have affection towards his legitimate wife (or vice versa) and despises seeing and associating with her, and if the wife feels that she has fallen from her status of beloved and that her husband does not like her, the family has lost two of its key pillars and is considered dilapidated and ruined. Living in such a cold and broken family is exacting and painful for both women and men and its continuance in not to either’s advantage. In such a state of affairs, even though Islam despises divorce, it is regarded as the best solution and thus allows it. Hence, the legitimization of divorce is for such cases.

Another item is lack of behavioral compatibility: when a man and woman have incongruent morals and attitudes or unlike beliefs. They might both be selfish, spiteful, inflexible, and fight continually; they may not listen to reason or advice or refuse to adjust and rectify themselves. Living in such a family is grueling and agonizing and maintaining it is neither to the woman’s advantage nor the man’s. In such instances divorce seems to be the best solution and thus Islam authorizes it.

As one can see, there are some cases in which divorce is a social necessity and the best solution; hence, it cannot be prohibited.

One might say: Even if we accept the necessity of divorce in some cases, why then is the law regarding divorce so general? It gives any capricious man permission to divorce, with the merest of excuses, expelling his unfortunate wife, who has expended her youth, energy, health, and spirit in her disloyal husband’s house from her cherished home and taking another wife soon after. Is not allowance of such divorces oppression towards women?

In reply it is said: Islam is also exceedingly opposed to capriciousness and inhumane divorces. It campaigns extensively against its causes, has determined conditions and rules for divorce, and has set obstructions that can to a great extent prevent divorce.

If, however, for any reason a wife falls from her cherished status and becomes hated by her husband, what must be done? The wife knows that she is not her husband’s sweetheart and the mistress of the house, and that her husband dislikes her. This painful occurrence causes the greatest humiliation and anguish for a woman. Is it right to forcefully keep such a woman in wedlock with laws and prevent her from divorce?

A woman can be kept in wedlock with the force of law and the man forced to pay her nafaqah; however, no laws can create love, which is the backbone of marital life, between the couple. Even though Islam loathes divorce, it seems to be the best solution to some problems.

It might be asked: If divorce is necessary and the best answer to some problems, why is it specific to men, and why do women not have sanction to divorce? These feelings may also originate in women. A woman may lose her love for her husband and abhor continuing their conjugal relationship. In such a situation it can be said: Because there is no love, in essence, their familial life has ended and the wife must have the right to divorce her husband and proclaim the termination of their marriage.

In answer, it is said: A wife’s disinterestedness cannot be considered the end of marital life; rather, it is a sign of her husband’s shortcomings and faults or his negligence regarding performing his nuptial duties and caring for his wife. The key to a woman’s love and affection is in her husband’s hands. If a man truly loves his spouse and desires her plentifully, performs his duties regarding his wife, and rectifies his behaviors, usually the wife gains high spirits, hope, and love for her husband and endeavors to retain her husband’s heart indefinitely.

Thus, if a woman is unenthusiastic toward her life and husband, it is the fault of her husband. In such a situation, divorce is not necessary; the husband must be informed of his duties and the delicate and subtle art of caring for a wife, so that he reconsiders his ways, speech, and manners, and strives to gain his wife’s heart in any method possible and give her hope for a better future.

It may be asked: What must a wife do if her husband beats her, does not provide her nafaqah, makes life hard on her, does not correctly perform his sexual duties, torments and harasses her, curses and swears at her, and even refrains from divorcing her? Do you tell her to have patience and “grin and bear it” until her death arrives? Why have women not been given the right to divorce in such cases, so that they may be freed of their torturous prison?

In answer it is said: Islam is based upon justice, fairness, and human rights; thus it never allows or approves of such indecent and oppressive behavior. Islam greatly opposes such mannerisms and defends the rights of women.

In such cases, a woman must approach the team of arbitrators and ask them to advise and council her husband and induce him to observe justice and fairness, and to perform his duties. If they are successful, she continues her life with him and if he does not see the light and amend his ways, she must advance her complaint to a canonical Islamic judge or family court. The judge summons the offending husband and demands that he refrain from oppression and abuse and that he perform his duties. If he does not accept, he is obligated to divorce her. If he refuses to do so, the judge himself divorces them and forcefully takes the wife’s rights from her husband.

Section Two The Rights and Duties of Women in the Form of Questions and Answers

Introduction

Common Rights of Women and Men

The Noble Zahrā (‘a): The Epitome of Women

Bibliography