Summary of 7.43 “Rights of Relatives”
Last week we continued our discussion on the rights of parents and relatives and the remaining part of the program focussed on the question of resolution of marriage or divorce.’ Three major points were made: first from the comparative standpoint Islam takes a moderate position in regards to divorce without accepting the idea of near prohibition of divorce or liberalization of divorce but rather something in between.’ Second, Islam urges continuity of the family and its preservation but also discourages divorce. It does not prohibit ending a marriage that is unsuccessful, unhappy with no way of reconciling it.’ Finally, we indicated that the lack of complexity or bureaucracy in divorce in Islam doesn’t mean that divorce is a matter that should be taken lightly as there are conditions that prevent the abuse of divorce.
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7.44 Marital Problems
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Host:’ What are some of the conditions placed on divorce and what can be done to minimize the need for divorce?
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Jamal Badawi
There are three basic areas that could prevent divorce.’ First of all caution and care should be taken in the selection of one’s spouse.’ Again this would ascertain religiosity, character and compatibility.’ If these things are done it would minimize disputes at a later time.’ Second, Islam urges both husband and wife to try to follow the path of God with its directives in conducting their family life in establishing their relationship to each other, their treatment of each other and in accepting their roles, rights and responsibilities.’ Third, even if some dislikes develop between husband and wife, as we have seen in the Quran and saying of the Prophet Muhammad (PBUH) a person should not be to hasty in judging their spouse.’ One should not expect the ideal and not to judge the person as a total person with his or her positive or negative points.’ This appeal is made in order to bring our expectation to a realistic level.’ In addition to this there are many checks and measures which may be resorted to if everything else did not work.
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Host:’ What is the husband permitted to do in the case that the wife is at fault?
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Jamal Badawi:
In case the fault is the wife’s fault, not a slight mistake or error because we all commit mistakes but if she does something serious that might threaten the family or her relationship with the husband it is called nushuz.’ This is again a word that doesn’t have a single descriptive word in English.’ Nushuz relates rebelliousness and lack of harmony and it refers to a wife who is too defiant and does not respect or care about her husband, is inconsiderate and is irresponsive to reasoning.’ We are not talking about anything minor; if this is the cause of the problem we find a divine directive on how to deal with this situation in the Quran in (4:34-35) ‘Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband’s) absence what Allah would have them guard. As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly); but if they return to obedience, seek not against them Means (of annoyance): For Allah is Most High, great (above you all).’ If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.’
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In this passage we find a number of points.’ The first part of the passage establishes the authority and responsibility of the husband for the maintenance and protection of his family.’ This includes material maintenance, psychological support and maintaining some reasonable measure of discipline and order within the household.’ We have indicated in previous programs also that the responsibility of the husband toward his family is not a dictatorship or a role of superiority but rather a mater of role differentiation.’ A second observation on the passage is that it says that a wife (it says women but it means wife) is praised who is reasonable, God fearing, pious, respect themselves, respect their husbands and try to live in harmony and peace with their husbands.’ The third observation is that it does not always assume a realistic situation and how to deal with that; people also like to know what actions are to be taken when the situation is not ideal or it would not provide comprehensive guidance to life.
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There are cases where women may not be that good in character and attitude just like men also as we can not expect every man to be a good husband.’ In case of persistent defiance or lack of cooperation on the part of the wife in a way that threatens the integrity of the family there are measures that can be taken which are like phased disciplinary measures.’ The first thing the verse mentions is kind exhortation.’ If the wife is really at fault the husband could go to her, appeal to his intimate relationship with her, appeal to love and affection, appeal to the fear of God and being God conscious, remind her of her duty and the need to protect her future and the future of the family, to keep in mind the best interest of the family and to try to reason and to respond to reasonable requests and reasonable exhortations.’ Needless to say any woman or wife who is reasonably descent to respond to this kind approach.’ But again we know that not every woman will be that sensitive or decent just like every man won’t be as well.’ The second measure that the passage mentions is to suspend intimate relationship with the wife; not for him to leave the home or (as some jurists say) the bed but simply not to share in intimate relationship.’ The idea is to try to bring the arrogance down to a reasonable level by showing that despite all of the beauty and charm one doesn’t accept this kind of treatment.’ Some jurists say that by keeping apart in bed it may also test the relationship and the real love between the two parties.’ How long can they really keep away from each-other and if the problem is not resolved mutually and divorce is the outcome they got a taste of what will happen to them.’ If this doesn’t work there is one more thing which may be resorted to as a last resort, under the private relationship of husband and wife used to avert from the possibility of divorce. It need not be useful in all cases but maybe in some and it is a light and symbolical chastisement.’ Even if this extreme situation arrises and the woman is so insensitive that no appeal to reason works, even this measure is permitted reluctantly with a great deal of restrictions and limitations in order to prevent its abuse.
Host:’ What are the nature of these restrictions?
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Jamal Badawi:
To start with this measure can not be implemented without good reason and it can not be just because he got angry or had a bad day.’ It really deals with the situation of serious refraction, breaking of order and discipline within the family.’ Like some jurists indicated a case of nushuz is if a wife just leaves her husband’s house, refuses to respond to requests or reasonable or fair demand on his part.’ A second requirement is that it can not be used without first trying the first two steps: exhortation and keeping apart in bed.’ Many jurists add that enough time should be allowed in each of these measures for the refractory wife to gracefully mend her ways and to try to avoid breaking up the marriage.
A third requirement is that even if that is resorted to the mode of chastisement is subject to a number of severe restrictions which are just as important as the measure itself.’ To start with according to a saying of Prophet Muhammad as reported in Abu Dawood ‘A person should never slap another on the face.” It is not a punishment or chastisement to slap another on the face whether a wife, child or anyone else.’ In the same Prophetic tradition it says that even if there is discipline a person should never swear at his wife or use profanities against her which are insults rather than corrections.’ A second restriction is that chastisement should be such that it can never lead to injury or even leave a mark on the body which is documented in both the Prophetic Tradition by Muslim and Al Tirmithi.’ In that sense when the face is eliminated, eliminate parts of the body that may cause injury or damage, when one avoids areas which may leave a mark (when chastisement may be resorted to) what else is left in the body?’ Even then a great companion of the Prophet (PBUH) Ibn Abass was once asked by Atta’a ‘chastisement with what?’ and he Ibn Abass replied that a chastisement with a miswak.’ A miswak is like a toothbrush.’ This is the reason why it is called a symbolical show of displeasure and maybe shock that may awaken a her to the realities of what she is doing and it may lead the wife to throw herself in her husband’s arms and cry and may mend the situation rather than going through a drastic situation like divorce.’ Some scholars after reviewing all the restrictions and qualifications said that this kind of chastisement is closer to affectionate spank than it is to a punishment, harshness or cruel.’ Even if it is not described in favorable terms, one can look at it as the least of two evils.’ If the next step in a family dispute is divorce which this light and symbolical chastisement may avert then it is the lesser of two evils.’ It may be resorted to instead of something more unpleasant and more lasting happens.
Also, if resorting light chastisement, in one particular case with one particular woman is not useful and would not give positive results or could backfire into more aggravation then it should not be resorted to on the basis of this rule.’ The rule is not a blanket rule to be implemented under all circumstances with any person.’ Al Shafi’i (one of the leaders of the four schools of jurisprudence) who indicated that avoiding the last step is preferable.’ In most cases however one can say that in the great majority of cases with minimum degree of decency on the part of the wife I think this measure may not work.’ I might only work with certain groups of people, certain individuals or personalities to listen to reason or to sensitive enough to try to mend.’ A point should be added is that the passage ends with the statement that if the wife becomes cooperative and reasonable one should never seek any excuse to chastise her because God is above you all.’ This reminds the person that one should never abuse any power or authority because God is above everyone.’ All of these measures are reluctantly allowed but are better than resorting to divorce but is also discouraged despite all of those restrictions.
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Host:’ Can you develop the analogy between divorce and chastisement?
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Jamal Badawi:
Divorce is permitted in most cases but is discourages as the prophet said ‘abghadu al halal’ the most hated of permissible acts.’ Some of the Prophetic Traditions shed some light on this.’ It is narrated in Al Tirmithi that in the fair-well pilgrimage of the Prophet Muhammad (PBUH) one of the things that he repeated and emphasizes was ‘istawso bi al nisa’i khairan.” This translates to I commend you to be kind to women.’ In fact in dealing with wives in particular he said: you are taking them as a trust from God don’t betray that trust and be careful and considerate to that trust.’ In another saying narrated in Ahmad and Bukhari he says ‘Wouldn’t one of you feel ashamed chastising his wife or beating her like an animal is beaten during the day and at night embracing her and sleeping with her?” In a third occasion there were some women who went the the wives of the Prophet to complain that their husbands chastise them physically.’ As narrated in Ahmad, Dawood, Al Nassa’i, Ibn Maja and Al Hakim he says ‘these husbands are not from the best among you.” In another saying narrated in Ahmad the Prophet indicated that ‘the best of you is the best to his family and I am the best of you to my family.” In his own behavior as narrated in Al Nassa’i the Prophet never beat a wife, servant or used his hand to punish anyone physically except in the case of fighting in the path of God or implementation of Islamic Law but not for any personal reasons.’ This shows that the norm in Islam is not to resort to this measure and if it is resorted to reluctantly it may be used to avoid a greater evil.
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Host:’ What happens in the situation where the man is at fault is she permitted to chastise him?
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Jamal Badawi:
If one considers the natural differences between a man and a woman, if the woman tries to use the same thing if the man is at fault she will end up being the one to get it.’ It would not make sense to insist on an exact analogy between husband and wife.’ Aside from the physical question which is for the protection of the wife, even if the husband is wrong, the position as the husband as the head of the family makes this particular measure of chastisement rather impractical in this case.’ Most males would probably retaliate by simply divorcing their wife.’ This however does not mean that if the husband is at fault that he is not subject to any correction.’ In the opinion of some Muslim jurists the husband can be chastised but not through his wife.’ If the husband is unreasonable or cruel the first thing to do is the same as what the husband would do with the wife.’ After all the Quran indicates in (9:71) that believing men and women are supporters, helpers of each other in goodness and they have to exhort each other for what is right and prevent each other from what is wrong.’ So the wife could appeal to her husband, remind him of his duties and responsibilities which may lead him to be reasonable with her.’ The Quran refers to this type of situation where other measures can be taken(4:128) ‘If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves.” Again a woman with her intelligence and sensitivity might be able to discover why her husband is averted from her or starting to dislike her.’ She or he may make concessions in order to make life livable and compromise in order to keep the family intact.’ All of these measures do not prejudice the wife’s right to initiate divorce because of a just and good reason.’ The Maliki jurists say that if the husband is at fault and the wife makes a complaint the judge can exhort the person to correct himself, if he refuses a judge may order a temporary separation but not a divorce and if this doesn’t work then the judge could order that the husband be physically chastised or jailed until he agrees to be fair, reasonable and kind to his wife.
Host:’ What if both the husband and wife are equally at fault?
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Jamal Badawi:
This is mentioned in (4:35) the transliteration of the meaning is that if one feels that the discord between husband and wife then you should send arbitrator from her family and one from his family and if these people are really interested in making peace God will facilitate their effort.’ The arbitrators can be selected using a variety of means which the Quran did not specify.’ It would be like a nomination where the wife selects someone from her family and the husband from his family.
Do these people have to be relatives?’ It is preferable but is not necessary.’ The reason why the Quran mentions relatives is that they would be interested in the welfare of the family, may know more about the background of the relationship between husband and wife and may be more effective in reconciling their difficulties.’ Many Muslim jurists say this is not an absolute requirement that they are relatives.’ Some Muslims who reside far from family may chose friends or people they trust who might be able to reconcile those differences.’ As far as who the arbitrators can be there has been a differences on that.’ The Hanafis and Shaafi’i say that their authority is simply to recommend resolution of the problem but it is up to the husband and wife to accept or reject.’ Ibn Abass says that they should be able to judge that the couple should be separated which gives them judicial power.’ The more appropriate interpretation is the one suggested by Hassan Albasri and Qatada where they suggested that the verse in the Quran does not mention anything about divorce but only about reconciliation and they say their authority is only to recommend means of compromise in order to bring harmony to the family.
