Women’s Right under Islamic Law By -M. A. A. Shamim Patwary

Article

Marriage in Islam is a Purified bond that should not be broken except for compelling reasons. Couples are instructed to pursue all possible remedies whenever their marriages are in danger. Divorce is not to be resorted except when there is no other way out. In a nutshell, Islam recognizes divorce, yet it discourages it by all means.Firstly, let us focus on the recognition side. Islam does recognize the right of both partners to end their matrimonial relationship. Islam gives the husband the right for Talaq (divorce). Moreover, Islam grants the wife the right to dissolve the marriage what is known as Khula’.If the husband dissolves the marriage by divorcing his wife, he cannot recover any of the marriage gifts he has given her. The Qur’an clearly prohibits the divorcing husbands from taking back their marriage gifts no matter how expensive or valuable these gifts might be. It has been said:
“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back; would you take it by slander and a manifest wrong?”(4:20)
In the case of the wife choosing to end the marriage, she may return the marriage gifts to her husband. Returning the marriage gifts in this case is a fair compensation for the husband who is keen to keep his wife while she chooses to leave him. The Qur’an has instructed Muslim men not to take back any of the gifts they have given to their wives except in the case of the wife choosing to dissolve the marriage. Qur’an says:
“It is not lawful for you (Men) to take back any of your gifts except when both parties fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah so do not transgress them.” (2:229)
Question is how Islam discourages divorce. The Prophet of Islam told the believers:
“Among all the permitted acts, divorce is the most hateful to God” (Abu Dawood)
As family is the main platform for preparing a promising generation to Islam and Allah,   A Muslim man should not divorce his wife just because he dislikes her. The Quran instructs Muslim men to be kind to their wives even in cases of unenthusiastic emotions or feelings of dislike:
“Live with them (your wives) on a footing of kindness and equity. If you dislike them it may be that you dislike something in which Allah has placed a great deal of good.”(4:19)
The Prophet has also emphasized that the best Muslims are those who are best to their wives. Prophet (pbuh) says:
“The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives.”(Tirmidhi)
However, Islam is a practical religion and it does recognize that there are circumstances in which conjugal life may come collapse at any time. In such cases, a mere advice of kindness or self-restraint from maritime acts can no way be propersolution. So, what to do in order to save a marriage in these cases?The Quran offers some practical advice for the spouse whose partner is the convict. For the husband whose wife’s ill-conduct is threatening the marriage, the Quran gives four types of advice as detailed in the following verses:
“As to those women on whose part you fear disloyalty and ill-conduct, (1) Admonish them,(2) refuse to share their beds,(3) Beat them; but if they return to obedience seek not against them means of annoyance: For Allah is Most High, Great.(4)If you fear a break between them, appoint two arbiters, one from his family and the other from hers; if they wish for peace, Allah will cause their reconciliation.”
At first, their conjugal relationship shall be tried to be restored by mediation selecting from both sides who are adult in age and are able to take proper decision. If they fail, then the help of the families concerned should be sought. It is worthy to mention here that thought, in some context, Islam permits husbands to beat wives ‘gently’ but remember that it should not be misinterpreted and the best way is not to beat even not psychologically. If it does, the husband is not allowed by any means to continue any displeasure to the wife as apparently mentioned in the verse. If it does not, the husband is still not allowed to use this measure any longer and the final avenue of the family-assisted reconciliation has to be explored.Prophet Muhammad (S) has instructed Muslim husbands that they should not have recourse to these measures except in extreme cases such as open adultery committed by the wife.It has to be noted that the Talmudsanctions wife beating as chastisement for the purpose of discipline.But what would be the remedy wife if her husband ill-treats her in conduct or behavior or any other way? The Qur’an offers the following advice:
“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; and such settlement is best.” (4:128)
This settlement is familiar to us as ‘Khola’ by which a wife can leave her husband by convincing him to give her divorce. In the context of Bangladesh, at the time of getting married, as husband permits his wife to give him divorce if she wishes in case of extreme displeasure in conjugal life, there is no legal barrier to divorce her husband in the cases where law permits her. This process of permitting wife to divorce her husband is also permitted by Islamic Jurisprudence. So, the pious Muslims need not to be worried about the permitting his wife whether it will score sins or pleasure of Allah.
M.A.A Shamim Patwary is Law Practitioner at Dhaka District Court.