About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

42 J.L. Pol'y & Globalization 138 (2015)
Dissolution of Marriage (Divorce) under Islamic Law

handle is hein.journals/jawpglob42 and id is 138 raw text is: Journal of Law, Policy and Globalization wwwiisteor ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) I Vol.42, 2015IllSh Dissolution of Marriage (Divorce) under Islamic Law Lawal Mohammed Bani Department of Shariah and Civil Law, College for Legal Studies Yola, Adamawa state, Nigeria Hamza A. Pate Lecturer Department of Management Technology, School of Management and Information Technology, Modibbo Adama University of Technology, Yola, Adamawa State, Nigeria Abstract The aim of this paper is to be acquainted with the modalities of separation in marriage under Islamic law. The Holy Prophet (SAW) declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. The basis of divorce under Islamic law is the inability of the Spouses to live together rather than any specific cause (or guilt of a party) on account of which the parties cannot live together. A divorce may be either by the act of the husband or by the act of the wife. There are several modes of divorce under the Muslim law. Which will he discuss hereafter. In Islam, the husband pronounces the phrase I divorce you (in Arabic, talaq) to his wife. A man may divorce his wife three times, taking her back after the first two (reconciling). After the third talaq they can't get back together until she marries someone else. Some do a triple talaq, in which the man says in one sitting I divorce you three times (or I divorce you, three times, you're triple divorced). Many Islamic scholars believe there is a wailing Period involved hem between the three talaqs, pointing to various hadiths. However the practice of triple talaq at one sitting has been legally recognized historically and has been particularly practiced in Nigeria. INTRODUCTION Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should he avoided. Initially no marriage is contracted to he dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Islamic law the divorce may take place by the act of the parties themselves or by a decree of the court of law. However, in whatever manner the divorce is affected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. In the laws of Islam (sharia) there are three kinds of divorce, each with separate rules. When a man has initiated a divorce, the procedure is called talaq. When a husband accuses his wife of adultery without supplying witnesses and the wife denies it, the process is called li'an. When a woman has initiated a divorce it is called khul'i. Talaq is easily obtained, while obtaining khul'i is typically quite difficult. TALAQ: is a verbal noun from Arabic verb talaaq. Which means to unties, to free. Technically, talaaq is a unilateral power vested in Muslim husband to repudiate his wife as and when he wishes. The word Talaaq is usually rendered as repudiation, its comes from the in roots 'Talaaq' which means to release (an animals) from the tether. The wife or free her from the bondage marriage in law it signifies the absolute power which the husband possess of divorcing of his wife. The following verse is in support of the husband's authority to pronounce unilateral divorce is often cited: Men are maintainers of women, because Allah has made some of them to excel others and because they spend out of their property (on their maintenance and dower). When the husband exercises his right to pronounce divorce, technically this is known as Talaaq. The most remarkable feature of Muslim law of talaaq is that all the schools of the Sunnis and the Shias recognize its differing only in some details. In Muslim world, so widespread has been the talaaq that even the Imams practiced it. The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in Islam. All that is necessary is that the husband should pronounce Talaaq; how he does it, when he does it, or in what he does it is not very essential. Among the Sunnis, talaaq may he express, implied, contingent constructive or even delegated. The Shias recognize only the express and the delegated forms of talaaq. In Talaq, (divorce) the husband does not have to use the exact words I divorce thee or 1 divorce you. Shariah law allows for other phrases. Thus, there are two types of talaq declarations: - Talaaq-Sareeh: This is a clear declaration of divorce such as I divorce thee - Talaaq-Kinava: An unclear or indirect declaration of divorce, using words that are not exclusively

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most