Although marriage dissolution through divorce is universal and hence inevitable in principle, the frequency of its occurrence, the reasons for it, and the reactions thereto vary in time and space.
In the region where Islam was first preached, marriage dissolution was practiced by the people among whom early Muslims grew up and with whom they made external contacts.
Jews, Christians, Arab pagans, and Persian Zoroastrians more or less resorted to the practice, with either the explicit, the implicit, or the mutilated sanction of their respective system.1
With regard to Hebrew law, in particular, a remark has been made which applies in a general way to the case of Islam. According to Driver, “Hebrew law . . . does not institute divorce, but tolerates it, in view of the imperfections of human nature (. . . Mt. 19:8), and lays down regulations tending to limit it and preclude its abuse.”
The phenomenon of marriage dissolution had existed before Islam and has persisted ever since. Indeed, if the contemporary world situation is indicative of any trend, it appears to foretell a continuing increase in divorce rates; the gradual decline in some societies is offset by the continuing rise in others.
However, Islam has taken a position between categorical proscription and unqualified liberalization of divorce. It neither instituted the practice nor ignored its reality and occurrence. An outright prohibition would probably remain an “ideal” or merely a state of mind, but hardly a pattern of actual behavior, because absolute self-control is not always attainable.
Such a prohibition, then, would seem incompatible with Islamic ideology which, as a matter of principle, prescribes only what is humanly attainable.
On the other hand, any unregulated liberalization of divorce is socially inconceivable and would almost certainly result in chaos, peril, and such traits that are destructive as well as intolerable.
Instead of demanding the impossible or catering to the intolerable, Islam adopted a position which has been variously characterized as “lax” and loose by some observers, “rigid” and inflexible, or moderate and perfect by others.
Such characterizations, however, seem to be oversimplifications. Divorce or repudiation in Islam is distributed along a continuum encompassing all the religion legal categories from the one extreme of prescription through the other of proscription.
It is obligatory, e.g., where there is no conceivable way of reconciliation or hope for peace between the parties. It is highly recommended or nearly obligatory if the wife is unfaithful or defiantly inattentive to her religious duties.
It is forbidden legally and/or religiously during the wife’s monthly course and also during the interim in which an intercourse has taken place. It is strongly undesirable or nearly forbidden where there is no good reason for it, because it would be harmful and Muslims are forbidden by their religion to initiate harm or inflict injury upon one another.
Finally, it is lawful when there is a valid ground for it, like recurrent inconsiderateness or failure to realize the objectives of marriage. Even then, it is designated by the Prophet as the most repugnant, in the sight of God, of all lawful things; it is an act which shakes the throne of God as it were.
The permissibility of divorce in Islam is thus only one of several religion-legal categories and represents an alternative course of action, which is admissible in response to certain basic human needs.
But beyond this general response, there are some peculiar factors bearing on the position of Islam. One of these is that, in Islam, things as such are lawful in principle. They become forbidden or undesirable, obligatory or commendable according to other elements of the situation.
Another factor is that the marriage contract in Islam is neither a civil act nor a sacramental vow, but a synthesis of both. Its dissolution therefore is admissible; it is not unrestricted like some civil liberties, and it is not indissoluble like some sacramental vows.
Finally, Islam has been characterized as the religion of the middle but straight and well-balanced course.13 Marriage dissolution through divorce or repudiation is recognized as both real and lawful in principle, however undesirable or repugnant.
This recognition has elicited different reactions from different scholars. For some, divorce in Islam is a mechanism of discipline and compassion, a necessary and sensible corollary of the freedom given to men and women to choose their marital partners.
“For others, Islam’s position has been an object of strong and varied criticisms. In Jeffery’s representative words, “The lightness with which the marriage tie was regarded in early Arabia has carried over into Islam, as evidenced by the facility with which a man may divorce his wives and by the high frequency of divorce which has always characterized Muslim society. The Qur’an grants man complete liberty of divorce and demands of him no justification for divorcing his wife. Thus he can divorce her at his own caprice, but no such facility exists for her.”
Criticisms have also been voiced with concern by some Muslims, who unlike their Western colleagues, usually hasten to point out the perfection of the revealed law and attribute any abuse thereof to the individual’s negligence or lack of integrity.
As far back as the second decade of Islam, the first half of the seventh century C.E., some people began to misuse their right of divorce. Until then, it had been accepted that if a man told his wife that she was “divorced thrice” the word thrice counted only as one revocable divorce.
When some people used this thrice formula carelessly, ‘Umar, the Second Caliph, reacted with indignation. He consulted with his companions and it was decided to consider such a formula as a triple irrevocable divorce. The interesting fact here is that this new provision was conceived as a punitive measure to discipline the divorcing men and protect the divorced women.
A few centuries later, Ibn Taymiyyah observed that many people were using divorce formulas like ordinary casual forms of oath. But he realized that the breaking of an oath was easily expiable by feeding or clothing ten poor people or by freeing a slave, whereas the breaking of a “divorce oath” meant the breaking of a marriage and a home.
So he ruled that such divorce oaths were void and inconsequential as far as the marriage bond was concerned. He also opposed the earlier decision of ‘Umar and other leading schools of law with respect to the “thrice formula,” counting it as one revocable divorce, not three.
What Umar had considered disciplinary measures against irresponsible men turned out, with the change of time and conditions, to be harmful to innocent women. Ibn Taymiyyah sought, by his rulings, to redress this situation.
Taken as a sociological index, such considerations seem to indicate (1) that Islamic law regards both marriage and divorce as highly sensitive and consequential matters; (2) that people’s reactions do not always correspond with the intent or spirit of the law; (3) that, in the early centuries of Islamic history, the simplicity of divorce was thought of as more harmful to men than women; but (4) that recent centuries have witnessed a general reversal of the effects of divorce.
As many Muslims fail in their behavior to meet the moral expectations of their religion, so do some critics appear to fall short of a full appreciation of the logic of social legislation in Islam. It may be difficult for Muslim scholars to comprehend the scientific basis of such assertions as those made by Jeffery, Levy, or Roberts about what they have called the incredible simplicity or unjustifiable facility of divorce in Islam.
It seems simplistic to attribute to Muslims, as Roberts does,9 a greater need for, and a higher frequency of, divorce because of the separation of the sexes and the women’s wearing of the veil.
The mixing of the sexes, even in modern enlightened times, and the discontinuity of the veil have neither prevented nor curtailed the frequency of divorce. If anything, they seem to have increased its frequency. On the other hand, the wearing of the veil over the face has little or nothing to do with Islam.
Besides, it is strongly recommended by the Prophet that prospective marital partners should be enabled to know each other well enough to build their future relations on love and compassion but, of course, without undue familiarity, indulgence, exploitation, or illicit experimentation.
Moreover, the fact that women have had less freedom to divorce their husbands does not necessarily mean that it has led to an increase in divorce rates. Rather, it may be one of the effective restrictions on divorce, for it has been observed that, at least in Western societies, the long-run trend in divorce rates is upward and, partly, the increase “is tied to the emancipation and the equalitarian status of women,…”