Who has the right of divorce?
The religion of Islam gives the right to divorce to the husband; therefore, a woman cannot divorce a man. However, there are some exceptions:
1. If the man has given the right to divorce to the woman, she can divorce him.
2. If it is an official marriage, and if the woman applies to the judge and the judge decides that the couples divorce, then the divorce takes place.
In case of a disagreement in the family, the relatives of both sides come together and try to solve the disagreement.
It is not religiously permitted for the woman to abandon her husband on simple grounds.
Let us try to explain the general rights of the woman:
When any of them is given news of the birth of a girl, his face becomes overcast, and he is (as if choking inwardly) with suppressed anger. The Quran, The Bee (An-Nahl); 58 (16: 58). In this verse, Allah relates and criticizes the way the people of the Jahiliyyah (Ignorance) viewed women. In fact, the following is stated in the Quran: He creates whatever He wills. He grants to whom He wills daughters, and grants to whom He wills sons. Or, He mingles them, both sons and daughters (granted to whom He wills); and He leaves barren whom He wills... Consultation (Ash-Shura); 49,50 (42: 49,50)
Girls are also born just like boys and they are human beings just like boys. If parents discriminate between them in terms of mercy and of the presents they give to them, parents will be held responsible for it. Such parents deserve the deprivation of the Prophet's intercession in the hereafter, because of not observing the will of our Prophet. As he knew that the feelings of the Jahiliyyah would recur now and then, the Prophet especially emphasized girls' education and declared: A father who brings up three, two, even one girl protecting their rights will be with me in Paradise. (Ibn Majah, Adab 3). On the birth of a female child, just like on the birth of a male child, an animal is sacrified (aqiqa) as offering thanks. She is given a beautiful name, and her obligatory education is provided. She learns the necessary sexual information from her mother. No statement in the Quran and in Sunnah (acts and deeds of Prophet Muhammad (pbuh)) which encourages people in acquiring knowledge excludes women. On the contrary, as he knew that they would be neglected, the Prophet recommended especially women's education and commanded the observation of their rights. In his time, women who were mujtahids (scholars who uses reason for the purpose of forming an opinion or making a ruling on a religious issue) grew up. For example, the wife of Allah's Messenger (peace and blessings be upon him), our mother Aisha is one of them.
Woman is brought up without discrimination and when it is time for her to marry, it is her right and a sunnah for her to see the candidate. If she does not like him, she refuses, and the objections from the parents or the candidate do not change anything.
While marrying, she exerts her will, and takes from the candidate as much mihr (bridal due/money or the like the bride takes from the bridegroom before marriage) as she wants. Mihr is her most natural right ordained by Allah and a life guarantee for her. It is up to her to spend this money on anything, as long as it is halal (permissible). She can donate her mihr or, if she has, her other possessions to charity, or she can invest it in business enterprises, establish companies, become a partner in companies with shares; she can thus earn money and spend it on whatever she wishes. This is because her social security is guaranteed by marriage. All the necessary expenditure for her and the house is the husband's responsibility. The husband cannot ask the wife to buy her clothes or ornaments with her income. He has to provide her livelihood in accordance with his wealth. If he cannot provide, then he cannot marry. If, after marriage, he does not provide for her, the woman's request for divorce is accepted.
Her husband cannot despise her; he should not forget that he is her lifelong friend, so he cannot leave her alone at home by being angry with or offending her. The best of men is the one who treats woman in the best way. Hadith (saying of Prophet Muhammad (pbuh)) (See Bukhari, Nikah 43; Muslim, Fadail 68)
It is among the duties of the husband to joke with and entertain his wife.
Man cannot beat his wife for unimportant reasons except if the woman rebels by rejecting what is right and lawful. (On the issue of beating woman, see the Quran, the verse: Women (An-Nisa); 34 (4: 34) and its explanation. For example, see Ibn Kathir N/257; Qurtubi NI/170,172,173; Elmalı N/1351; Abu Dawud, manasik 56; Ibn Majah, manasik 84; Muslim hajj 147; Tirmizi, Rada'11; Abu Dawud, manasik 56; Halabi Saghir p. 395; Halabi Kabir. 621; Canan, Terbiye p. 391;). Man cannot disturb his wife with sudden, unexpected visits on grounds of suspicions that arise from his illness of jealousy. In one of his hadiths, the Prophet (pbuh) prohibited someone who stayed away from his family for a long time to come home suddenly at night without informing beforehand. Here, the chance for the woman to get ready for her husband by cleaning, trimming and shaving is mentioned as reasons. The meaning of a hadith regarding the issue is as follows: When you come home (from far away places) at night, do not go to your wife so that she shaves and combs if she is untidy (so that she prepares for your coming). (Bukhari, nikah121,122; Muslim, radâ' 58, imarah 181,182; Darimi, nikah 32, jihad 163; Musnad NI/298). In explanations to the hadith, the possibility that husband's entering the house suddenly at night may mean that he suspects of his wife's infidelity is also mentioned as reason.
The husband also has the duty to satisfy his wife sexually. The Prophet likens those who, without thinking, finish their job and immediately draw back, to a rooster, in other words to an animal, and he recommended not entering sexual relation without first caressing and lovemaking. (From Daylami, Ghazali, Ihya N/52 (Trans. N/129); See also Suyuti, al Jamiu's-saghir (with Fathu'l-Qadir) VI/323). This is because man may easily be excited by looking at, whereas woman can be ready for sexual relation only after a long period of caressing. A good man is the one who succeeds in preparing his wife for it and who satisfies his wife as well as himself. The men who think only of themselves in sexual relation should not forget that they oppress the other party and take pleasure by torturing.
The woman has the right to divorce the man who cannot perform any sexual relationship within one year. The woman has also the right not to accept relationship with the husband until she has taken her mihr.
As well as her livelihood, the husband is also responsible for the woman's medical treatment and medication expenditure. If the woman is not able to bake bread, the husband has to buy ready-made bread. If she wants to ornament herself, the expenses of ornaments and scent are also met by the husband. The husband is required to provide two sets of clothes a year, one for summer and one for winter. In case of a disagreement, the qualities of the clothes are determined by the local authorities. The woman has the right to demand from the husband a guarantor or a trustable person who will meet the expenses while the husband is away on a campaign or war. It is her right to ask for a separate bed if she wants to sleep alone during her monthly periods.
In accordance with the circumstances, the woman may ask for a servant from her husband. The husband is responsible for the wage of the servant. Except for the housework that is seen as necessary for the wife to do in accordance with the customs of the society, the wife does not have to do any work.
If she sees it necessary, she and her husband can agree on the amount of the monthly livelihood. If she understands that it is not enough, she asks the husband to raise it, and can refer the matter to the court, if the husband does not accept.
If the woman does not want the relatives of the husband, he is responsible for providing another house for her. It is given as reason for this ruling that their presence will prevent her desire to make love with her husband. It is even her right to ask for separate rooms, on the same grounds, for her children other than those that are too small to know about sexual relationship.
The woman has the right to visit her parents once a week; the man cannot prevent it.
In religiously lawful jobs that do not violate the rights of man, it is the right of the woman to work, provided that she works in accordance with religious rules.
If she wants to go to the public bath because of menstruation or after childbirth period, the man gives the money for the bath, but if it is known that in the public bath it is not paid attention to cover the parts of the body that must be covered before everybody but the spouse, then the wife is not sent to the public bath.
The livelihood of the wife who is divorced with Rij'i (reversible) or Bain (completed or the divorce which took effect) divorce, is provided by the man during her iddah (A limited period of waiting after divorce and before re-marriage prescribed by Islamic law).
Those are just a few examples of the issues explained among the rights of woman on man in all the fiqh (Islamic Law) books. Besides, they are not recommendations but legal rights which have sanctions if violated. If women are made to work in some parts of the world and pressured under hard work which can only be done by man, Islam is not guilty but those who have removed Islam from their lives are.
In case of an election, many Islamic scholars have said that women have the right to vote, because there is no evidence for the otherwise. Furthermore, election means bay'ah (an oath of allegiance). Indeed, the Prophet also took bay'ah from women (see the Quran, 60:12 and its explanations). For the selection of the caliph after Umar (may Allah be pleased with him) everybody including unmarried girls was asked for their opinions. (see Muhammad Hamidullah, Islâm Müesseselerine Giriş Ist.1981, p. 112 (narrated by Ibn Kathir))
When the woman dies, her shroud is also provided by the husband. (For a broader explanation of these points we briefly noted here, see Ibn Abidin, Raddu'l-mukhtar, Egypt 1380 (1960) NI/571 and others. Also the sections of nafaqa (livelihood/alimony) of all fiqh books and especially Sarahsi, Mabsut V/180 and others)
As is seen, woman does not have any trouble and anxiety of livelihood; in other words; she has complete social security. All of them are legal rights that are determined in case of a disagreement by court. The wife and the husband in Islam are by no means opposing poles that compete to snatch rights from one another. They are the two halves of a whole that complete, help and support one another, and that are source of peace and morale for each other, just like our Prophet's helping with the housework, and share of work between Ali and his wife Fatima.
In Quran, the reasons that make divorce a necessity are clearly stated:
1. Open Indecency (Adultery)
Adultery is a great crime in Islam and a great sin equal to shirk (idol-worship, to associate anyone or anything with Allah). Adultery is an awful deed, which demolishes the order in family, which instantly removes the bond of marriage, and which renders man and woman separate in terms of Islamic law.
It cannot ever be thought that such a deed is committed in a Muslim family. A man or a woman who pollutes his/her Muslim family with such a deed cannot be worthy of this family and must immediately divorce his/her Muslim spouse and leave, without demanding any right.
If the one who commits adultery is the woman, she is also deprived of mihr and is forbidden to marry believers. O you who believe! You should not constrain your wives in order to take away anything of what you have given them (as bridal due or bridal gift-mihr), unless they be guilty of indecency in an obvious manner. Consort with them in a good manner... the Quran, Women (An-Nisa); 19 (4: 19)
O (most illustrious) Prophet! When you (Muslims) intend to divorce women, divorce them considering their waiting-period (as appointed in Law), and reckon the period (with due care), keeping from disobedience to God, your Lord, in reverence for Him and piety. (While the divorce is taking effect, during their waiting-period) do not drive them out from their houses (where they have lived with their husbands), nor shall they themselves leave, except in case they have committed an open indecency the Quran, Divorce (At-Talaq); 1 (65: 1)
Adultery cancels all legal contracts. An adulterer/adulteress can only marry an adulterer/adulteress or an idolater as s/he is in the same category as idolaters. As idolaters are unbelievers, the marriage between believers and unbelievers is forbidden. Verses about the issue are as follows:
A fornicator (one notorious for indulgence in illicit sexual relations) is not to marry other than a fornicatress (a woman notorious for indulgence in illicit sexual relations) or an idolatress; and a fornicatress - only a fornicator or an idolater is to take her in wedlock. Acting the other way is forbidden to the believers. The Quran, The Light (An-Nur); 3 (24: 3)
...Do not continue to retain disbelieving women in marriage, and ask for the return of whatever you expended as their bridal-due (if they remain among the unbelievers or join them), just as the disbelieving men (whose wives have emigrated to you after embracing Islam) have the right to demand the return of whatever they spent. That is God's judgment and His law; He lays down the law and judges between you... the Quran, The Woman To Be Tested (Al-Mumtahanah); 10 (60: 10)
Do not marry the women who associate partners with God until they believe... the Quran, The Cow (Al-Baqarah); 221 (2: 221)
...These are the bounds set by God. Whoever exceeds the bounds set by God has surely wronged his own self.... the Quran, Divorce (At-Talaq); 1 (65: 1)
2. Causing Unrest, Disagreement in Thought
In order for an Islamic society to form a peaceful atmosphere, the family which is the seed of the community needs to be peaceful. The peace in family is maintained by harmonious partners. If the pillars in family are not balanced, it is doomed to fall apart at any time.
So as to maintain peace and continuity in family, the unbalanced pillar should be set upright by repairing, if it is not possible to repair it, it should be replaced with a new one; this will be beneficial for both the family and the Islamic society.
If the woman, one of the pillars of the family, rebels against her husband and thus causes unrest in the family, in other words, if the woman does not support her husband's thought, obstructs it, and tries to dissuade him out of his cause by objecting verbally or with action, then it means that it is necessary to divorce that woman.
If the man does not divorce that woman, there emerge two options:
The first one: Man does not care about his wife and continues his way. However, in this case, unrest will follow in the house. With the emergence of unrest, if there are children in family, they will be affected and in the end, a generation with troubles and problems will be the result. Maybe, this generation will be too far away from religion and faith to believe in Allah.
This is because the woman will affect children more as she will always be together with them at home. In future, these children will be a great loss for a struggling man and a heavy blow to his cause. Furthermore, the man will be unsuccessful in his work or at least will not reach the point he aims at, as he will not be able to find a peaceful atmosphere at home. Believing men and women who need to be one another's helper can never bring about an atmosphere of mutual help outside, if they cannot inside the family; they cannot command what is good, and prevent from what is evil. Therefore, it will be necessary to divorce the woman, in Quranic measures.
The second option: The believing man will do what his wife tells him and abandon his cause and work, which will cause the man to be a sinner and to be away from religion. In recent years, there have been many examples of it.
"Say: "If your fathers, and your children, and your brothers and sisters, and your spouses, and your kindred and clan, and the wealth you have acquired, and the commerce you fear may slacken, and the dwellings that you love to live in, are dearer to you than God and His Messenger and striving in His cause, then wait until God brings about His decree. God does not guide the transgressing people." The Quran, Repentence (At-Tawbah); 24 (9: 24)
" O you who believe! Among your spouses and children there may be enemies for you, so beware of them..." the Quran, Gain and Loss (At-Taghabun); 14 (64: 14)
Any woman who tries to prevent from Allah's way is at the same time an enemy to her husband. It is through keeping away from her that one can avoid and protect oneself from such an enemy. The best way to do that is to divorce the woman. This is because women like that are not among good women. If they do not mend their ways, it is the best solution to divorce rebellious women.
" Men (those who are able to carry out their responsibilities) are the protectors and maintainers of women inasmuch as God has endowed some of people (in some respects) with greater capacity than others, and inasmuch as they (the men) spend of their wealth (for the family's maintenance). Good, righteous women are the devoted ones (to God) and observant (of their husbands' rights), who guard the secrets (family honor and property, their chastity, and their husband's rights, especially where there is none to see them, and in the absence of men,) as God guards and keeps undisclosed (what should be guarded and private). As for those women from whose determined disobedience and breach of their marital obligations you have reason to fear, admonish them (to do what is right); then, (if that proves to be of no avail), remain apart from them in beds; then (if that too proves to be of no avail), beat them lightly (without beating them in their faces). Then, if they obey you (in your directing them to observe God's rights and their marital obligations), do not seek ways against them (to harm them). (Be ever mindful that) God is indeed All-Exalted, All-Great." The Quran, Women (An-Nisa); 34 (4: 34)
If they do not mend their ways, though they are advised, kept away from their beds, and beaten, then the best solution is to divorce them. However, if they change in a better way, it is forbidden to seek ways against them (to harm them).
3. To Prefer the Life and Beauty of the World to Allah
Whether male or female, one is responsible for obeying (being a servant to) Allah, which is the main aim of the creation, and for working for the sake of His religion. Those who are conscious of their creation determine their course of actions accordingly. It is a duty and a responsibility on everybody who says that they are believers to work till there remains no mischief on Earth and the sovereignty belongs to Allah. Below are the verses of the Quran:
"I have not created the jinn and humankind but to (know and) worship Me (exclusively)." The Quran, The Scatterers (Adh-Dhariyat); 56 (51: 56)
"... You alone do We worship, and from You alone do we seek help..." the Quran, The Opening (Al-Fatihah); 5 (1: 5)
" And (if they still persist in unbelief and hostilities) fight against them until there is no longer disorder and oppression rooted in rebellion against God, and the whole of religion (the full authority to order the way of life is recognized) for God exclusively. If they cease (to persist in unbelief and continue hostilities toward the believers), then surely God sees well all that they do." Quran, Gains of War (Al-Anfal); 39 (8: 39). Every believer struggling for his/her belief should divorce the man or woman who forgets the purpose of the creation and wants the beauty of the worldly life.
Otherwise, these women or men will prevent the caller (into religion) from his/her work. For this reason, it is the best way to divorce them, and if they are women, to give them their mihr (bridal due) and to let them go. " O (most illustrious) Prophet! Say to your wives: "If you desire the present, worldly life and its charms, then come and let me make the necessary provision for you (in return for divorce), and release you with a handsome release. But if you desire God and His Messenger, and the abode of the Hereafter, then it is a fact that God has prepared a tremendous reward for those among you who act in a good manner, aware that God is seeing them." The Quran, The Confederates (Al-Ahzab); 28, 29 (33: 28, 29)
Men or women who do not endeavor for the system of Allah to prevail and who desire the ornaments and beauties of the world are a hump in the back of those who call into religion and try for Allah's system to prevail. It is a necessity for believers to remove this hump, since our Lord declares that those who desire the life of the world and its ornaments do not have a share in the hereafter. It is not possible for someone who does not have any share in the hereafter to be together with those who have. " Such are the ones who have bought the present, worldly life (the life of corporeal desires and ambitions) in exchange for the Hereafter. So (in consequence of this exchange) the punishment will not be lightened for them, nor will they be helped." The Quran, The Cow (Al-Baqarah); 86 (2: 86)
" Whoever desires the present, worldly life and its outward shows, We recompense them for all that they do therein, and they are not deprived of their just due therein. It is they for whom there is nothing in the Hereafter but the Fire. All that they produced in it (this world) has come to nothing, and all that they were doing is fruitless, vain. The Quran, Hud; 15, 16 (11: 15, 16)
"Whoever desires (and strives to gain) the harvest of the Hereafter, We increase him in his harvest; and whoever desires the harvest of the world, We grant him out of that, and he has no portion in the Hereafter." Quran, Consultation (Ash-Shura); 20 (42: 20). As the one who desires the life of the world and its ornaments has no relation with the one who desires the harvest in the hereafter, the best thing to do for a believer is to divorce his/her spouse who desires worldly ornaments. The Islamic principles clearly show how and when this divorce will take place.