The legal obligations of a husband do not stop with provision of the basic requirements relating to maintenance and protection. He is also expected to give her company and marital relations, and to avoid doing anything that would harm her.
These obligations are enforced by the Shari’ah. If a man fails to maintain his wife or fails to visit her for more than a certain period of time, the wife has grounds to be granted a divorce by a Shari’ah Court. Similarly, if she can prove to the court that the husband is doing harm (Idrar), be it by drinking alcohol, or beating her without lawful cause, or abusing her or her parents and so on, she is entitled to be granted a divorce. In none of these cases can the husband claim back any part of the dowry or presents he has given to the wife. I would like to make a note here that every situation has to be evaluated on its merits and circumstances by a Shar'iah Court. These points mentioned above are general precepts in the Shar'iah.
The Husband is however urged in the Qur’an to avoid divorce and try to preserve marriage even if it is not ideal. This is to be done in the first instance by exercising patience with his wife’s faults. The Qur’an say’s;
"Live with them on a footing of kindness and equity. If you take a dislike to them, it may be that you dislike a thing while Allah brings about through it a great deal of good."
[Qur’an 4:19]
The Prophet (saws) also emphasised the undesirability of divorce in a Hadith found in Abu Dau’d’s collection:
"The most hateful of all lawful things, in the sight of Allah, is divorce."
The ideal husband should therefore, if need arises, make full use of Qur’anic provisions for reconciliation and arbitration [Qur’an 4:34] before proceeding with divorce
If a man does divorce his wife, he should follow the steps approved in the Qur’an and Sunnah regarding a revocable divorce. This allows for cooling off and reconciliation before it becomes final on the final pronouncement. The divorce is not to be pronounced while the wife is in menstruation, but when she has finished menstruation and not yet resumed marital relations with the husband. (Qur’an 65:1) In other words divorce is not to be pronounced in anger or at random, but at a specific time when the husband is in control of his reason, and the wife herself is not in the state of emotional upset that sometimes occurs whilst she is pregnant or may accompany menstruation.
The husband is to continue good treatment of his wife even if divorce decided upon. He is to keep and feed her as before in his own house until the expiry of her iddah (waiting period) without harassment, [Qur’an 65:1, 65:6] and to make provision for her according to his means.
He is not to take back any of the gifts he may have given her before or during the marriage:
"The parties should either hold together on equitable terms or separate with kindness. It is not lawful for you (men) to take back any of your gifts from your wives."
[Qur’an 2:229]
On the contrary, the husband is to give her a gift or some form of maintenance to sustain her after divorce [Qur’an 2:241]. Moreover, he is not to interfere if after divorce she wishes to marry someone else:
"......and when you divorce women and they have reached the end of their waiting term, hinder them not from marrying other men if they have agreed with each other in a fair manner."
[Qur’an 2:232]
The husband should also know that according to the Shari’ah he is not always the one to have custody of his children after divorce, contrary to the common practice in some countries. It is the wife who is given priority in custody of children in many cases, in accordance with a Hadith related by Amru b. Shu’aib in Ibn Majah, which tells how a woman came to the Prophet (saws) and said:
"Truly my belly served as a container for my son here, and my breast served as a skin bag for him (to drink out of), and my bosom served as a refuge for him; and now his father has divorced me, and he (also) desires to take away from me." The Prophet (saws) said: "You have a better right to have him as long as you do not marry again." [Ibn Majah]
We would also like to point out again however, that the decision as to the custody of the children has to be evaluated by a Shar'iah Court, which will consider the particular circumstances surrounding the family and the children's best welfare.
In the Maliki School of Islamic Jurisprudence, this rule is systematised to give priority in custody of children to the mother and to 5 other relatives before the custody could be claimed by the father. This custody lasts until puberty for a son and until marriage for a daughter, while the financial responsibility for their maintenance remains with their father.
The knowledge of the necessity of separation from his children must certainly act as a reality check when a husband is indiscriminately deciding to divorce.
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