Reasons Why Divorce Is Not in the Hand of the Wife
Fatwa No: 437230

Question

SA, why don't women have right to divorce, have to get permission of husband or higher authority, or have to pay mahr back which is bargaining? Why are they babied

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Islam is a religion of justice, which means treating every human in a manner that befits his status and placing him in his due position that suits his creation and capabilities. As for equality, it does not necessarily entail such principles. Rather, holding matters, people, and qualities that are different as equal is unfair and unjust! The inherent differences between men and women in terms of nature, physique, and capabilities are no secret, so when the Sharee‘ah makes a distinction between them with regard to the effects of such inherent differences, this is indeed the required justice.

Nevertheless, we can generally say that the basic principle is treating both men and women on an equal footing with regard to the Sharee‘ah rulings, in compliance with the Hadeeth of the Prophet, sallallaahu ‘alayhi wa sallam: "Verily, women are but the twin halves of men." [Abu Daawood, At-Tirmithi, Ibn Maajah and Ahmad, Al-Albaani: Hasan] The only exceptions from this general principle are the cases specified by a Sharee‘ah proof, and these correspond to the effects of the inherent differences between men and women in terms of their physique, nature, and capabilities.

Examples of that are the following: the Sharee‘ah gives the husband the right to issue divorce, assigns him to be in charge of the wife (the right of Qiwaamah), and enjoins the wife to ask for her husband’s permission before leaving the house. In return, the Sharee‘ah deems it obligatory on the husband to pay the bridal money at the time of marriage and provide for his wife after marriage. This difference in the Sharee‘ah rulings is perfectly in line with the different roles assigned to each of them in the family context as well as the broader society, and it suits their physical, mental, psychological, and emotional makeup.

It is an obvious contradiction that someone objects to giving the husband the right to issue divorce apart from the wife without them objecting to enjoining the husband alone to pay the bridal money and not her – and thus returning the bridal money to him if the wife asked for Khul‘ (divorce in return for compensation payable by her) – and then making it obligatory on him alone to provide for his wife even if he is poor and she is rich!

Justice entails that one is entitled to a gain if he agrees to bear the responsibility for any incurred loss (Al-Ghunm bil-Ghurm). The religious obligation on the husband to provide for his wife is one of the reasons for granting him the right of Qiwaamah. Allah, The Exalted, Says (what means): {Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth.} [Quran 4:34]

Moreover, what would the case be had the wife been given the right to issue divorce instead of the husband, bearing in mind that she had already received the bridal money and were she to divorce him, he would have lost his money and she would have divorced him without losing anything? Would this not be a reason for an increase in divorce rates, emboldening women to issue divorce for the most trivial reasons, or without any reason whatsoever? Rather, what would stop this from becoming a means to make money for some women?!

However, there are two points that should be highlighted:

First: if a woman hates her husband and is harmed by staying with him in marriage, she is entitled to ask for divorce, and if he refuses, she has the right to refer her case to the Muslim judge (to terminate the marriage legally) or request Khul‘ and pay him back the bridal money he had paid her.

Second: a woman may stipulate a condition in the marriage contract that she should be authorized to divorce herself were her husband to harm her by doing a specific deed, and if she did so, it is obligatory on the husband to abide by the condition she stipulated. Ibn Al-Qayyim  may  Allaah  have  mercy  upon  him said in I‘laam Al-Muwaqqi‘een: “If a woman gets married and fears that her husband might travel and leave her alone; or that he takes her with him but she does not wish to leave her country; or if she fears that he might take another wife, enjoy his slave-girl, consume intoxicants, or beat her for no wrong on her part; or that he might turn out to be poor and she thought him rich; or she finds out about a defect in him that she did not know about prior to the marriage; or that he was illiterate and she thought him to be literate, or ignorant and she thought him to be knowledgeable; and so on, and then she would not be able to break the wedlock, then she may avoid all this by stipulating a condition in the marriage contract that whenever any of these things should happen, the matter of divorce should be in her hands; i.e., she would stay with him if she so wishes or part with him if she so wishes, and she should have witnesses to such stipulation. If she fears that she would not be able to stipulate this condition after the marriage contract becomes legally binding and thus oblige the husband to abide by her condition, she may refrain from giving her Wali the permission to marry her off to him unless he agrees to this condition. The Wali should say, in this case, ‘I give you so-and-so in marriage on the condition that she would have the right to divorce herself if such-and-such thing happens.’ Thus, whenever the stipulated thing happens, she would be able to divorce herself. There is nothing wrong with resorting to this trick, which would empower a woman to terminate her marriage to a man whom she is discontent with and would spare her the need to refer her case to the Muslim ruler to terminate the marriage legally due to the husband’s absence or inability to provide for her and the like.” [End of quote]

As for preventing a woman from leaving her home without her husband’s permission, it is because of his due rights over her (i.e., requiring her to be present with him) and the right to Qiwaamah assigned to him as per the Sharee‘ah. It is not intended to be a constraint; rather, it is a means of keeping the marital life in order and taking into account the interests of the family, especially that it is recommended for a woman, in principle, to abide in her home and not to go out except for a need. If her husband fulfills her needs, this would be a reason warranting seeking his permission. However, if she has a need and her husband does not fulfill it, she may go out to fulfill such need without asking for his permission, such as buying food, seeking medical treatment, and asking about the obligatory religious knowledge that she is required to learn, and the like.

As for requiring an unmarried woman to seek her guardian’s permission before going out of the house, there is no evidence indicating that this is obligatory as in the case with regard to a husband. Rather, the social customs should be taken into account as well as the potential harm that may ensue. It is not incumbent on her to seek his permission before going out as long as there are no suspicions surrounding it or danger that could cause her or her guardian harm.

For more benefit on the wisdom in paying bridal money to the wife, please refer to Fatwa 409633.

Allah Knows best.

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