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limits ordained by Allâh, there is no blame on either of them if she redeems herself (from the marriage tie by
returning all or part of the mahr)....(2:229)
The wife of Thabit bin Qais came to the Prophet (s.a.w.s.) and said, “O Messenger of Allâh, I do not
approach Thabit bin Qais in respect of character and religion, but I do not want to be guilty of showing anger
to him.’‘(Her meaning was that although Thabit was a good man, she was unable to get along with him and
thus might not be able to show him the respect due to a husband. (Trans.)) The Prophet (s.a.w.s.) asked her
about what she had received from him. She replied, “A garden.” He asked, “Will you give him back his
garden?” “Yes,” she said. The Prophet (s.a.w.s.) then told Thabit, “Accept the garden and make one
declaration of divorce.” (Compiled by al-Bukhâri and al-Nisai.)
It is not permissible for woman to seek divorce from her husband unless she has borne ill-treatment from
him or unless she has an acceptable reason which requires their separation. Said the Prophet (s.a.w.s.), If
any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be
forbidden to her. (Reported by Abû Daoud.)
The Prohibition of ill-treatment
It is haram for the husband to torment and mistreat his wife in order to compel her to seek a divorce so that
she will return to him all or part of the property he has given her. Only if the wife is guilty of clear immorality
may her husband demand the return of part of the mahr. In this regard Allâh Ta‘ala says:...Nor should you
treat them with harshness inorder that you may take away part of what you have given them, (for you may
not take it back) unless they are guilty of open lewdness. (4:19)
It is also haram for a husband to take back anything from his because he hates her and wants to divorce her
so he can marry another woman. As Almighty Allâh says, But if you decide to take one wife in the place of
another, even if you have given one of them a heap of gold, do not take (back) anything of it; would you take
it back by slander and a manifest wrong? And could you take it back, when each of you has been privately
with the other, and they (the wives) have taken a solemn covenant from you? (4:20-21)
The Prohibition of the Oath of Desertion
One of the aspects of Islâm’s concern for the rights of women is that it prohibits a man to be so angry with
his wife as to discontinue sexual relations with her for a period which she cannot bear. If this abandonment
of sexual relations is accompanied by an oath on his part, he is given a limit of four months in which to calm
down and revert to her. If he comes to his senses and resumes sexual relations before the expiration of the
four months, it is possible that Allâh may forgive him for his excess and open the door of repentance to him;
however, he must still do the penance prescribed for a broken oath. If, on the other hand, this period expires
and he has not returned to her, his wife is divorced from him as a just punishment for his neglect of her
rights.
Some jurists hold that the divorce is automatic at the expiration of four months and that no judgement from a
court is needed. Others, however, require that at the end of the period the matter should be referred to the
judicial authority, who will then give them the option of reconciliation or divorce.
Such an oath of abstention from the wife is technically known in the Shari‘ah as eela. Concerning it Allâh
Ta‘ala says: For those who take an oath of abstention from their wives, a waiting period of four months (is
ordained); if they return, indeed, Allâh is Forgiving, Merciful. But if their intention is firm for divorce, then,
indeed, Allâh is Hearing, Knowing. (2:226-227)
This period of four months has been specified to give the husband ample time to calm himself and to restore
the relationship of his own volition. Moreover, four months is normally regarded as the maximum period a
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woman can endure separation from her husband. Commentators on the Qur‘ân narrate the following incident
in support of this opinion: One night during his caliphate, while ‘Umar was making a round of Madinah, he
heard a woman singing, The night is long, the darkness all around me; I am sleepless, for I have no friend to
play with. I swear by Allâh that had there been no fear of Him, This cot would be shaking from side to side.
Upon investigation, ‘Umar found that the woman’s husband had been gone on a military expedition for a
long time. He then asked his daughter Hafsah, the widow of the Prophet (s.a.w.s.), “How long can a woman
endure separation from her husband?” She replied, “Four months.” Subsequently, the caliph of the
Believers decided that he would not send a married man away from his wife for a period exceeding four
months.
The Relationship between Parents and Children
The Protection of the Lineage
The child is an extension of his father and the bearer of his characteristics. During his lifetime he is the joy of
his father’s eyes, while after his death he represents a continuation of his existence and an embodiment of
his immortality. He inherits his features and stature as well as his mental qualities and traits, both the good
and the bad, the beautiful as well as the ugly, from his father. The child is a part of his father’s heart and a
piece of his body.
Allâh Subhanahu wa Ta‘ala has ordained marriage and has forbidden adultery so that paternity may be
established without doubt or ambiguity and that the child may be referred to his father and the father to his
sons and daughters. Through marriage a woman is reserved for one man; it is haram for her to be unfaithful
to him or to let anyone else have access to what belongs exclusively to him. Thus, every child born to her in
wedlock will be her husband’s child, without any need for recognition or public proclamation of the fact by
him or a corresponding claim on the part of the mother. “The child is attributed to the one on whose bed it is
born,” (Compiled by al-Bukhâri and Muslim. Literally: “The child belongs to the bed.”) declared the Prophet
of Islâm (s.a.w.s.).
The Prohibition of Denying Paternity
It is not permissible for the husband to deny his paternity of any child born to his wife as long as they are
married to each other. Such a denial would bring the ugliest shame imaginable upon both the wife and the
child. He is, therefore, not allowed to take such a step on the basis of a mere suspicion, a sudden notion, or
an evil rumor. If, however, on the basis of evidence which has come to his attention, he is convinced that his
wife has betrayed him, the Shari‘ah of Islâm has no desire to force him to raise a child whom he believes not
to be his own or to let the child be his heir, or—at the very least—to allow him to suffer from suspicion and
doubt the rest of his life.
A way out of this dilemma, known in Islâmic jurisprudence as li‘an, is provided by the Shari‘ah. If a man is
convinced or strongly suspects, although without having proof, that his wife has had sexual relations with
another man and is carrying his child, he can take the case to a Muslim judge (qadi). The qadi will ask the
man and his wife to invoke the curse of Allâh on one another in the manner prescribed in Surah al-Nur: As
for those who accuse their wives but have no witnesses except themselves, the testimony of one of them
shall consist of bearing witness by Allâh four times that he is of the truthful, and a fifth (time) that the curse of
Allâh be upon him if he is one of those who lie. And it shall avert the punishment from her if she bear witness
by Allâh four times that he is indeed of those who lie, and a fifth (time) that the wrath of Allâh be upon her if
he is among the truthful. (24:6-9)
After this the two shall be separated permanently, and the child shall be identified by the name of his or her
mother.
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