Qur’anic verses on divorce addressed the social situation of seventh-century Arabia and were designed to ameliorate women’s conditions. In pre-Islamic Arabia, a man could declare his wife as divorced, but then resume cohabitation with her as he pleased. He could also declare her as being like the back of his mother—a practice known as ‘I’laa—an expression that denied her spousal rights, but still kept her fettered by the bonds of marriage. The Qur’an put an end to I’laa by stipulating a maximum period of four months for such status, and then the man either had to completely reconcile with his wife, or utter a pronouncement of divorce (Qur’an 2:226). To end the practice of innumerable declarations of divorce, the Qur’an legislated that two revocable divorces were allowed, and after that, there had to be reconciliation or a final irrevocable divorce (2:231), optimally conducted in such a manner that still allowed for peaceful interaction between the two ex-spouses. It should be noted that, although allowing divorce, the Qur’an—and Islamic tradition—strongly advocates for the continuation of the marriage bond. As such, if after the two revocable divorces, the couple wishes to reunite under favorable terms, the Qur’an strongly admonishes those in authority from preventing such reconciliation (2:231). Nonetheless, that society was a patriarchal one, and the Qur’anic amendments reflect and rocentric norms. In fact, the oft-quoted verse (2:228) that seems to give males superiority over females is actually in reference to matters of divorce.
Islamic law generally recognizes three forms of divorce: 1) Talaaq, wherein a man can repudiate his wife by formulaic pronouncements of divorce, or words that clearly convey the intention of divorce. Under the traditional practice, this means that a pronouncement is made during the time between the monthly menstrual cycles when there is no bleeding and sexual intercourse is permitted according to Islamic law, and wherein both parties observe sexual abstinence. After the second such cycle, the husband has to either reconcile with his wife, or if the third period passes without reconciliation, deem the wife as having become irrevocably divorced. 2) Khul or Muba’ra’a, which is either initiated by the woman, or by mutual agreement. In the case of khul, the woman secures the divorce by paying an agreed sum of money, or by repayment of the dowry or part thereof. 3) Tafriq is a modern development wherein the court orders the divorce, either in the absence of the husband, or upon his refusal to consider the wife’s petition. Only in the first and third forms of divorce may the wife be entitled to any from of maintenance, and this would be limited to the period known as the ‘iddah—the time during which she cannot contract a new marriage and to establish paternity in case it is determined that she became pregnant before the final divorce. In all forms of divorce, the woman has been traditionally disadvantaged, and this may be due to the fact that over the centuries, Muslim men have arrogated to themselves the right of interpreting the shariah, and have done so at the expense of women.
Modernity has in many ways brought amendments to the rights of women in divorce cases. In many countries, particularly Tunisia, Algeria, and Malaysia, divorces initiated outside of the court are not considered legal. In other Muslim countries there is still a problem caused by medieval interpretations of law that have little to do with the realities of modern society. One notable area is in the case of custody of the children, where the father is generally favored, especially if the woman chooses to remarry. In places like Pakistan and Afghanistan, women’s movement activists are campaigning with noted success for amendments to discriminatory divorce practices.
