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Book 9: The Book of Divorce (Kitab Al-Talaq)

Introduction

The Arabic word for divorce is talaq which means" freeing or undoing the knot" (Imam Raghib). In the terminology of the jurists. Talaq signifies the dissolution of marriage, or the annulment of its legality by the pronouncement of certain words.

Divorce is of three kinds: the Ahsan, or most laudable, the Hasan, or laudable, and the Bid'a or irregular.

Talaq Ahsan or the most laudable divorce is where the husband repudiates his wife by making one pronouncement within the term of Tahr (purity. when the woman is not passing through the period of menses) during which he has not had sexual intercourse with her, and she is left to observe her 'Idda.

Talaq Hasan or laudable divorce is where a husband repudiates an enjoyed wife by three sentences of divorce, in three Tuhrs

Talaq Bid'a or irregular divorce is where a husband repudiates his wife by three divorces at once. According to the majority of the jurists, the Talaq holds good, but it is against the spirit of the Shari'ah, and, therefore, the man who follows this course in divorce is an offender in the eye of Islamic Law.

The right of woman in demanding the dissolution of marriage is known as Khula' (meaning, literally, the putting off or taking off a thing). It is a kind of facility provided to the wife in securing Talaq from her husband by returning a part or full amount of the bridal gift.

We have described before that, according to Islam, marriage is a civil contract; yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity that a high degree of sanctity is attached to it. But, in spite of the sacredness of the character of the marriage tie, Islam recognises the eternity of divorce in cases when marital relations are poisoned to a degree which makes a peaceful home life impossible. But Islam does not believe in unlimited opportunities for divorce on frivolous and flimsy grounds, because any undue increase in tht facilities for divorce would destroy the stability of family life. Therefore, while allowing divorce even on genuine grounds, Islam has taken great care to introduce checks designed to limit the use of available facilities. The French legists Planiol and Ripert have explicitly emphasised Islam's point of view in regard to divorce in these words:" Divorce is a mischief. However, it is a measure that cannot be avoided for the welfare of the community, because it is the only remedy for another harm which may be wore dangerous The prohibition of divorce, whatever harm it may imply, is like the prohibition of surgery, because the surgeon is compelled to amputate some of the limbs of the patient's body. However, there is no danger whatsoever, in legislating for divorce (in accordance with the practice established by Islam) since it is not divorce that spoils married life and dissolves its sacred tie, but the misunderstanding that arises between the married couple and hinders the strengthening of this (union by marriage) and demolished it. Divorce alone puts an end to the hatred that may occur between the husband and his wife before it is aggravated and becomes an intolerable mischief to society" (quoted by Hasan Ibrihim Hasan, Islam, Religious, Political. Social and Economic Study, p. 274).

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