The inherited consequences of human jurisprudence are based on the accounts without regard to the divine legislation in the book regarding the marital relationship of marriage and divorce. The adopted inheritance is recognized and sanctified when they took the (oral divorce) as a decision that depends on its implementation.
As a result, the family disintegration took place that caused social disasters and loss of children. This caused the consequent psychological diseases that lead to a defect in the social behavior and the various crimes. Unfortunately, those rules contradict with the legislation of the Holy Quran in detail. We should consider the legislation of the Holy Qur’an, which was keen to protect the marital relationship and the rest of the family is as follows:
The Prophet (peace and blessings of Allah be upon him) said: “O you the Prophet; instruct the believers thus; «If you should divorce women, you can only dissolve your marriage contract in accordance with the principles ordained by Allah: You must not divorce them during their courses, nor in between the courses if you have had congress with them during that space of time, nor until you have made sure whether they are pregnant or not; this gives chance for reconciliation. And pay careful attention to computing and reckoning the interval prescribed lest the divorcee, pregnant or non pregnant, should miss her chance should she wish to remarry. And regard Allah, your Creator, and entertain the profound reverence dutiful to Him, and do not drive them out of their homes nor should they themselves depart there from before the conclusion of the set period unless they have committed a proven immoral act».
These are the limiting provisions prescribed by Allah; and he who goes beyond them will have wronged himself. You do not know; perhaps Allah henceforth induces changes and circumstances them after His own manner.” (Al Talaq 1). This means that if there is an intention of the person to divorce it is not a complete separation unless after four months as the Almighty says (However, if they should decide to divorce, Allah is Sami‘un (Omnipresent with unlimited audition) and ‘Alimun.) (al-Baqarah 227). This means that the separation is carried out according to an agreement between the two parties with satisfied souls, each of whom is convinced of the decision he has made. Hence Allah sets the golden rule as a basic condition for the continuation of the marriage or the divorce. Allah Almighty says: “Divorce is permissible only twice, if each time both parties think they can reconcile with their hearts and with Allah. There and then they shall have to hold together in equity or else part in kindness. But if you decide on divorce, then you are forbidden to reclaim what you gave them of dower or gifts unless you fear obstinacy against Allah’s ordinances, then you are absolved if she wishes to buy her freedom. These are the limitations imposed by Allah, and those who transgress them are wrongful.” (Al Baqara 229)
(1) Is the divine legislation when establishing the rule (hold together in equity or else part in kindness) means that once the man uttered the word divorce, the separation occurs or does it mean that the separation is done through mutual understanding where both parties believe that the separation is in their interest mutual. They should arrange their issues such as the care and education of children without resorting to the Islamic courts and the right of each of them to see and take care of his children and continue to meet their needs fairly. This is what Allah Almighty wants to create of good, tolerance and affection for the children under the auspices of their parents even in the case of separation to build the Islamic healthy character through the healthy education by creating a community cooperation and interdependence.
Second: Allah Almighty has ordered that the marital relationship should be with virtue is a commandment and mercy of Allah for women. The Almighty says: “ O you who have conformed to Islam women are not a property to be inherited against their will following the death of their husbands; you are forbidden to copy this pagan custom, nor are you allowed to ill treat them to force them to give up a part of the dower or of the property you have given them, unless they have been proven guilty of an evil line of conduct. And you must live with them in equity and honour according to the manner and the Islamic laws of matrimony. And should you take to them so much dislike; it may happen that you dislike something whereby Allah makes all grace abound” (Al Nisaa 19).
Third: what Allah Almighty has decreed in his book on marriage and divorce is aimed at protecting the family to complete its task of building the society. It should not be as easily adopted by religious institutions on the basis of inheritance that resulted in the dispersal of families and the displacement of children. In order to preserve the family, the legislation of divorce that Allah Almighty wants are strict where they came keep the marital life and the marriage. SO, from where did they get the false (oral divorce) and the tragedies that left hundreds of thousands of families?
Fourth: If there is a commitment to the wise and prudent concept of the provisions of the Almighty in legislation, that were clarified by the Holy Qur’an, the divorce rate will very much fall from what it is now and we will not see the social tragedies resulting from the disintegration of the family and the loss of children and the effects of psychological changes that may cause damage. These children hurt themselves as long as they hurt others. I do not rule out the assumption that many of those who joined the terrorist organizations suffer psychological diseases caused by the divorce of parents who did not take into account the rights of their children.
Fifth: The imbalance that the Islamic societies experience is the result of the departure of the jurisprudent heritage from the indications of the book of Allah. The rulings of divorce of the two spouses without real justification or adequate reasons for divorce led to the oral divorce that destroys the family and the use of the divorce weapon as a means to pressure and humiliate women. Many social and moral problems that do not conform to the supreme law of Allah are caused because of divorce.
Sixth: The tradition and human jurisprudence were based on narrations of the Prophet (peace and blessings of Allah be upon him), even though they know that the Prophet was not ordered to make laws. Rather, Allah Almighty commanded the prophet to convey the message: “ O you the Messenger: Proclaim and intimate all that has been revealed to you from Allah, your Creator, and if you do not, then you Will have not proclaimed His message. Under His tutelage, Allah protects you from the people who are characterized by acts of prepensed malice and hostile intentions. Indeed Allah does not guide to His path of righteousness those who are. Given to infidelity ” Al Maidah 67). Allah Almighty did not convey other than the Holy Quran to His Messenger, which included legislation and virtue, values and ethics, and ordered him to teach the believers the Holy Qur’an and what is contains. As Allah Almighty says: “ There is not a beast in the animal kingdom on earth nor a bird moving through the air with its wings but form distinct nations like you people. We have not left out anything informative but included it in this Book, and all shall just the same be thronged before Allah, their Creator” (Al An’aam 38). When we follow the ancient fatwas of the heritage and human jurisprudence, especially with regard to the (oral divorce), we find out that there is no text in the holy Qur’an that confirm these opinions on divorce. On the other hand, there are several legislates in the holy Qur’an regarding the marital relations, the continuity of family life, and the responsibility of the spouses for children and their care. He stressed the protection of the family and took all the necessary precautions in anticipation of any dispute that may lead lead to divorce.
Seventh: Allah Almighty says “ And if you suspect a breaking of union or continuity between them or impending ruptured relations, then you may choose an arbitrator from his (husband’s) side and an arbitrator from her (wife’s) side, to whom both parties agree to refer their claims, in order to obtain an equitable decision. Should they both (man and wife) be willing to reconcile their differences and quarrels, then Allah shall reconcile them with their own hearts and make sympathy of love unite their thoughts; Allah has always been ‘Alimun, and Khabirun (well acquainted with all that you are doing). “(Al Nisaa 35). The purpose of this verse is to delay divorce to preserve the marital relationship and to give a chance to cure the causes of divorce. This divine legislation has been eliminated in hundreds of thousands of divorce cases that led to congenital and social deformities in Muslim societies as a result of family disintegration and its negative effects.
Eighth: We should preserve and protect the family and to remove all the reasons that lead to its disintegration and danger to the national security, as the family is the first cell of any society. We should find the reasons and conditions that aim at family reform and protection against disintegration, and because Allah Almighty gave freedom to people to produce the laws and procedures based on the objectives and indications of Allah Almighty, which came to Prophet Muhammad peace be upon him in the holy Qur’an.
Ninth: In order to implement the above and what will achieve the reduction of the divorce rate in Muslim societies, this requires the following:
(1) The authentication of the marriage contract (which we have outlined and modeled in another article). Marriage is not to be recognized until after authentication of the marriage contract which should be ratified in the presence of witnesses before the Family Welfare Office.
(2) Issuing a law to establish (family care bureaus) in cities or centers in each governorate to provide great services to citizens.
(3) The Bureau shall consist of the following:
A) An official authorized to perform marriage from the Ministry of Awqaf
B) Legal Adviser delegated by the Ministry of Justice.
C) A psychiatrist or social worker delegated by the Ministry of Health.
D) The supervisory subordination of the office (to the Ministry of Population).
The mission of the bureau shall be:
(1) Ratification of the approved marriage contract.
(2) To summon the spouses in the case of any request of separation and to discuss the material and moral reasons mentioned in the warning book directed by one of the spouses according to the terms of the attached contract.
(3) Carrying out attempts to reform between the two spouses and give them a period of thirty days to reach an agreement that satisfies both sides and if the Bureau is convinced to ratify the divorce, it will ratify it.
(4) Then, the first party recognizes his commitment to the expenses prescribed in the divine legislation on the wife in the period of breastfeeding and the continuation of spending and care of children and the bureau must decide a monthly salary for the wife, which is based on the upbringing and care and meet all their requirements until the age of majority.
The oral divorce should not be considered. If Allah Almighty has legislated in relation to Himself, saying: “ Allah excuses you for oaths in which the guilt does not reside in the intention, but He holds you responsible for oaths with guilty intention and Allah is, Ghafurun and Hakimun (Forbearing toward His creatures). ” (Al Baqara 225), then a man should not consider the “oral oaths” and they should not be taken into account. This oral divorce leads to the disintegration of the family and the displacement of children in the streets. Look at the mercy of Allah Almighty who has created a punishment that is not harmful to man, where Allah Almighty says: “ Allah excuses you for oaths in which the guilt does not reside in the intention, but He holds you responsible for the oaths in which guilt resides in the intention, an affront nothing can expiate but,
a) Supplying ten indigent persons with food equal to the usual standard for your families, or,
b) Clothing them with clothes of the same standard, or else,
c) Freeing a slave from bondage. And he who does not find the means shall fast three days.
This is the atonement you make for your oaths if you have carelessly used the name of Allah. Be bound to your oaths. Thus – does Allah expound to you people His revelations that you may hopefully impel yourselves to gratitude. ” (Al Maidah 89). Is it logical or reasonable to judge a family to be disintegrated and children to be displaced which results in serious social effects? Why do not we prepare a law specifying the penalty (oral divorce) (a) Supplying ten indigent persons with food equal to the usual standard for your families, or,
b) Clothing them with clothes of the same standard). We should follow the law of Allah Almighty who is merciful to his creation. We should ignore the human fatwas that have no mercy and do not consider the value of the family and do not derive its legislation of the divine legislation in the holy book, but draw them from the narrations which have certain objectives that do not agree with the law of Allah Almighty or Hos noble book.
Study prepared by:
Researcher Ali Mohammed Al – Shurafa Al – Hammadi