The Origin of Shi'tte Islam and It's Principles

8 (b) Talaq (divorce)

It is clear that the essence of marriage is the very special union which is established between man and woman, and which makes the two different individuals close companions and partners to each other. The cooperation and communion between wife and husband may be compared to a person's eyes and hands - each hand is different from the other but each complements and perfects the other.

The very nature of this act, that two personalities, who are quite unacquainted with each other, are so strongly joined and united through wedlock that it precludes any conception of a stronger union, shows the particular strength of this alliance. There can be no better words than the following verse of the Holy Quran: "Hunna libasuln lakum wa antum libasuln lahunna" (2:187), "They are your garments and you are their garments." Truly this verse expresses the subtle intimacy of the relationship of marriage.

The obvious feature of the non-temporary alliance is that the two make an agreement to remain together for life.

It may happen however that the marriage is no longer desired either on the part of one or both parties and divorce becomes necessary. The code of religion ordains that certain conditions be fulfilled according to the kind of divorce in question. There are three kinds of divorce: firstly, if divorce is desired from the side of the husband, separation is called "talaq"; secondly, it is desired from the side of the wife, she can obtain "khul"'. And lastly, if disagreement is on both sides, they can have recourse to "mubarat" to obtain separation.

Since Islam is a social religion and it has been founded on unity and oneness, its greatest objective is love and concord. The creation of disharmony in whatever form is to be avoided whenever possible. Accordingly, a large number of traditons have expressed the undesirability of "talaq" (divorce) and some of them say that among the acts made lawful by God, there is no act more undesirable than divorce. That is why the messenger of God has made clear to man the conditions and restrictions of divorce, so that it may occur as infrequently as possible within the Muslim community. Among the rules of divorce, the presence of two just witnesses is a necessary condition. If divorce is pronounced in the absence of two just witnesses, it will be considered null and void. This condition is the best means of doing away with mutual hatred, because two 'just' persons will consider it their duty to bring about peace and friendship between the couple through admonition and preaching before carrying out the divorce.

Of course, it will not be successful on every occasion but the number of divorces can be minimized by the intervention of these two persons who are respected within their community for their good sense and justice.

It is regretful to note that our Sunni brothers, do not accept this argument. They did not consider the presence of two just witnesses necessary for divorce. Consequently the number of divorces is growing so great among them that it causes inconvenience to a great number of people. Unfortunately, many of us, as well as our Sunni brothers, are unaware of the hidden wisdom contained in the religious code. We pray that Muslims may whole-heartedly comply with the divine laws so that the bitterness that has been created in their private lives, and the confusion that has spread in their social affairs, may at least be reduced.

The important condition of divorce is that the one who divorces must not be under compulsion, or in a state of anger, or any other state of mind which diminishes his ability to think clearly and make decisions in a reasonable manner. (Moreover, the divorce should have completed her monthly period of menstruation and not have had sexual intercourse in the 'new month'. This condition inevitably helps to delay and eventually lessen the number of divorces).

In the Ja'fari (Shi'a) 'fiqh', pronouncement of divorce three times in one sitting is counted as only one divorce. Thus if a man pronounces divorce three times in one sitting, his wife does not become forbidden for him forever. They can be united again without any condition.

If the man then again divorces his wife, returns a second time to the woman and then divorces her a third time, the woman shall become forbidden after this third divorce. After that, she cannot become lawful for him unless she marries (and subsequently divorces) another man. If this thing happens, nine times, he will be unlawful for her former husband forever.

Most of the 'ulama' of the Sunni community stipulate that if a husband says three times to his wife that he has divorced her, it will be considered as an irrevocable talaq; resumption of conjugal relations is only possible if the wife marries and subsequently divorces another man, though it is clearly stated in certain of their accepted hadith that divorce pronounced three times in one sitting is to be counted as one divorce. It is narrated in al-Bukhari, on the authority of Ibn 'Abbas, that "during the time of the Prophet, and during the caliphate of Abu Bakr, and for two years during the caliphate of 'Umar, the 'three divorces' meant only one divorce, but Hadrat 'Umar said: that although people were entitled to delay divorce, they did not wish to wait, and so, seeing no obstacle in the way, we granted permission for them to carry it out" (that is, he recognized the validity of irrevocable divorce after pronouncing divorce three times in one sitting).

The Holy Quran is itself unambigious in this matter: "Divorce (shall be lawful) only twice, then (you should) either keep her in fairness or send her away with kindness." (2:229) After this, God, the Almighty, says: "So if he divorces her (for a third time), then she shall not be lawful to him until she weds another husband." (2:230) We have tried to give a brief account of the causes of divorce; if more details are required, one may refer to the books of Islamic jurisprudence..

There are also other causes of separation such as defects and diseases in either party. If the man is sexually impotent or becomes insane, the woman has the right to divorce him. Certain diseases of a woman's sexual organs entitle the man to divorce his wife. Zihar and illa' (kinds of oaths of rejection of the woman on the part of the man, common amongst the Arabs before the coming of Islam) may also be a cause of separation.

The various kinds of "iddah" and other allied matters are dealt with comprehensively in more specialized works of fiqh. Suffice it to say that after the death of the husband, it is compulsory for the wife to observe "iddah" even if she is "ya'isah" (past the menopause), or is a minor, or has not had coition with her husband. In divorce, "iddah" is compulsory in cases other than the three mentioned above. In unlawful coition (adultery), there is no 'iddah. The necessary waiting period after the death of the husband is four months and ten days, but, in case the woman is pregnant, she must wait until delivery. This, of course, may be less or more than the four months and ten days. The duration of the "iddah" after the divorce is three months, and for the pregnant woman, it is till delivery and for the kaniz, or slave girl, it is half the period of the free woman. If the divorce has not accrued twice before and there is no 'khul', the husband can resume conjugal relations at any time during the period of 'iddah. The man no longer has the right to return to the wife unless the two parties are willing to make a new act of marriage (and only then under certain conditions). It is not considered necessary by the Shi'a that two witnesses be present for the resumption of marriage (as it is in the case of divorce), but it is desirable; it is not necessary moreover to recite anything specific. Such words and signs as serve the purpose are sufficient.

As we have already made clear, the relationship of marriage cannot be broken unless one or both partners expresses dislike for the other; if the dislike is from the side of the husband, he has the right to talaq, through which he can, if he desires, divorce his wife; and if the wife detests him, she can, on payment of some money, demanded by the husband, (it may be equal to or more than the dower) and after reciting the prescribed words (sighah), be released from the bond of wedlock. This latter is called khul' and it is only valid if all conditions of divorce are fulfilled and there is very strong ill-feelings on the part of the woman for the husband. This is in accordance with what the Holy Qur'an says:

"And if you fear that they shall not (be able) to keep (themselves) within the limits (fixed) by God, there shall be no sin on either of them about what she gives up to get herself free (from the wedlock). These are the limits ordained by God. Beware! Exceed them not." (2:229)

The commentary of the ahlu 'l-bayt about this verse is that it concerns the wife who says to her husband, "I will not believe in your swearing; I will not respect the divine code concerning marriage conduct as far as you are concerned. I will not allow coition; and will bring undesirable people into your house." This obviously shows extreme hatred on the part of the wife and there would then appear to be no possibility of harmonious relations between her and her husband.

If, however, the feeling of dislike is equally strong on both sides, any divorce which takes place is called a "mubarat" divorce. This kind of divorce is likewise only valid if all the conditions of talaq (divorce) are fulfilled, but in this case, the husband has no right to claim more than the dower money that he has paid to the wife. In khul' and 'mubarat', the divorces is irrevocable. After it, the husband cannot assume conjugal relations. If however the woman takes back the money she gave the husband at the time of 'khal", they may resume the conjugal alliance as long as the period of "iddah" has not come to an end.

There are also other causes of prohibition (for instance, if the husband calls his wife 'mother' or 'sister' or likens her to either, the wife becomes prohibited to him till he performs an act of atonement. This is called zihar.

These are explained in the relevant books. Such incidents seldom take place today as they were particular to the Arabs of pre-Islamic days.

9. Inheritance

After a person's death, the transfer of his or her property, or rights, to another person by virtue of their blood relationship or some other tie, is called inheritance.

The living relative is called the "warith" (heir), the deceased is called the "muruth" (one who bequeaths), and the right is called "irth" (inheritance). The relationship between a person born of another, or that of two persons who are born of a third, is called a blood relationship (nasab).

If the right of an heir is fixed in the Qur'an, he or she shall be counted in the category of those who receive inheritance as a matter of obligation, otherwise he or she shall be entitled to receive inheritance by virtue of blood relationship.

In the Holy Qur'an, the chief shares are six. The description of the shares and the inheritors is as follows:

1. The half-share (nisf):

a) the husband, provided that the wife has no son. b) one daughter; here too the absence of a son is a condition. c) a sister; here also the same condition applies

2. The quarter-share (rub'):

a) the husband, when the deceased wife's son inherits. b) the wife, provided that the husband does not leave behind a son.

3. The eighth share (thamin): the wife, when the husband leaves a son.

4. The third-share (thulth). the mother, when there is no son; also some inheritors from the mother's side.

5. The two-thirds share: two daughters when there is no son.

6. The sixth-share (sudus): each of the father and the mother in the presence of a son; also an inheritor from the mother's side whether man or woman.

Those who are not included in the above settlements shall be inheritors on account of their blood relationship with the deceased, observing the rule that the share of the man is double that of the woman.

The heirs who are in a state of blood relationship with the deceased are divided into three groups:

(i) the mother, the father, sons, daughters (or failing these, their descendants).

(ii) grandfathers, grandmothers, brothers and sisters (or failing this, their descendants)

(iii) paternal uncles and aunts, maternal uncles and aunts (or failing this, their descendants)

The universal principle is that the presence of members of group (i) prevents members of group (ii) presents members of group (iii) inheriting. Thus, the one closer in blood-relationship acts as a barrier to the remoter, and this principle also holds within each group.

The only really significant difference between the Shi'ah and Sunni schools of jurisprudence in the laws of inheritance concerns the principles of " "awl" and "ta'sib" 3. The Imamiyah jurisprudents have proved by means of ahadith from the Ahlu'l-bayt (a.s.) that there is no 'awl or ta'isb in the matter of inheritance. This was also the opinion held by the great companions of the Holy Prophet. The well-known statement of Ibn 'Abbas in which he speaks against 'awl and ta'sib can be taken as authoritative. There are also other grounds of proof for negating these two principles.

10. Endowments (waqf); Gifts (nibah) and Charities (sadaqah):

If someone owns some property and wishes to relinquish possession of it, his transference of it may be such that it is final. That is, now only will it go out of his possession, but he can never claim it back, whether, e.g., he frees a slave, or gives up possession of a house or some land to make it a place of worship, a mosque, or a place for use in pilgrimages. By such an act, the property can never again return to the ownership of that person again. In such a case, in fact, the item can never again be anyone's property.

On the other hand, the person may relinquish possession of some property which then passes into the hands of another. Such a transaction may be based on exchange or a monetary transaction, it may be part of a peace treaty, etc.

Thirdly, he may relinquish ownership without any exchange taking place, but solely with regard to the world to come and recompense therein. This is what is commonly known as "sadaqah", and this is in turn divided into two parts:

a) if the property is durable and the donor's intention is that it should last and any profits from it used in good acts, it will then be called an endowment (waqf);

b)if it is not durable or the donor has not stipulated any conditions for its being permanently kept and utilised, it will then be called sadaqah proper (charity).

Fourthly, if possession of some property is handed over to someone else without there taking place any exchange and without any thought of Divine recompense (e.g. for the sake of friendship), the donation is called hibah (gift). If, however, some exchange takes place, e.g. one man gives another his shirt on the condition that the second man gives a book to him, it is called " 'iwad" (a consideration). ,If the second party accepts, the gifting will become binding and neither party will have the right to take his property back, except if they both agree to break their agreement. It is necessary that the something gifted must be in the possession of the donor. If the gifting was without any 'iwad, the item (s) may be taken back. Naturally, this does not apply to gifts given between close relatives or between husband and wife, or if the item(s) is (are) lost or damaged.

This contrasts with the situation in the case of sadaqah; for here, once possession has been relinquished, the thing(s) cannot be taken back. The declaration of intention to donate is enough to make the taking back unlawful. This is called the sighatu 'l-waqf, and the property then passes to the trustee, who may be the original owner himself. It may not be taken back, sold, divided, pawned, or otherwise pledged, whether it be a "waqf khass" (special endowment), for descendents, for example, or a "waqf 'amm" (general endowment), for the poor, the needy, a mosque or a school.

There are, of course, some occasions when exceptions can be made and the trust property can be sold. This may happen, for instance, if the property has become damaged, but the damage should be to an extent that prevents the property from being of any use. The waqf property can also be sold if there is serious fear of its being destroyed, in which case it should be such that no profit would accrue from it. The property can also be sold if there are acute differences among those who are in possession of it and there is danger of loss of life and property or loss of honour and respect.

In spite of all these conditions, no one can take the decision to sell the property or divide it. The decision rests entirely with the hakimu "sh-shar" (the mujtahid) The hakimu 'sh-shar" alone has the right to pass the necessary decree after assessing all the prevailing conditions. But it is a pity that in the matter of endowments, people have become extremely apathetic. They pay no attention to the limitations of the Divine Law. God is aware of all their intentions and actions.

This was a brief account of sadaqah as it is generally understood.

11. Passing Judgement (qadawah)

The rank of qadi (judge), and that of the administrator of justice have great importance, and in fact these are ranks worthy of great respect. In the Imamiyah sect, the responsibility of the judiciary is considered an adjunct of the prophethood, the imamate and the state in general.

God, the Almighty has said, "O David. We have appointed you vicegerent in the earth; so judge between the people with justice." (38:26) And again He says, "By the Lord (O Prophet), they believe not until they have set you up as their judge in all that they dispute about among themselves, and thereafter find not in their selves any vexation against what you decide, and submit with total submission." (4:65)

The qadi and judge are the nawamisu' th-thalathah (custodiansof three things - life, property and honour).

That is why there are serious dangers in this rank at every step, and if the texts of the traditions are carefully studied, we shall find that it is so exalted a rank that even the mountains seem to be insignificant before it.

Hadrat Amir al-Mu'mimin (a.s.) says, "The qadi should be considered to be on the brink of Hell. The qadi's tongue is between two balls of fire. O Shurayh, you are sitting at a place where sits either a prophet or his "wasiy" (successor) or else some wicked person." It is stated in a tradition of the Prophet (s.a.w.), "If somebody is made a qadi it means that he has been slaughtered without a knife." There are many traditions of this nature.

If a ruling which a "faqih" (expert in jurisprudence) deduces from proofs concerns some general principle, it is called a "fatwa"; for instance, it is unlawful to use someone else's property without his or her permission, the wife of a man is lawful to him but she is unlawful to a stranger. But if the order pertains to some particular case it is called a judgement (qada). for instance, "This woman is the wife. "This woman is a stranger." "This is Zayd's property. "That is the property of such and such a person."

Whether it is a "fatwa" or a "qada", both of them are duties of a just mujtahid who is the general proxy of the Imam.

Judgement is in fact the identification of the legal nature of points under dispute, whether they pertain to defense and accusation in a court, or to matters such as the sighting of the moon and the determination of the beginning of the month, or the administration of endowments and the determination of lineage, and it demands great wisdom and intellectual ability. In fact it is more difficult a task than issuing a "fatwa".

Now, if somebody who is devoid of these qualities undertakes to perform this duty, it will certainly do more harm than good. Accordingly, it is unlawful in Imamiyah "fiqh" for anyone except a just mujtahid to undertake to perform this work. Indeed, it is regarded as one of the major sins if anyone else does do it, and the extent of its enormity borders on infidelity. Our respected teachers used to be very cautious about passing judgements. We also follow the same line.

Judgment can only be passed on the basis of three things: (1)confession (iqrar), (2)an oath (qasm), or (3) two just witnesses (bayyinah). The question of how to establish preference or priority in cases where there may be difference or contradiction between the witnesses is a matter for the section of fiqh which deals with the giving of evidence, and there is little point in going into the details here suffice it to say that the matter has been examined in great detail by our jurists and they have left many writings on it. We, also, have written a book on the subject called "Tahriru 'l-majallah".

One who does not act in accordance with the order of the authorized "qadi" (i.e. one who fulfills all the conditions of a "qadi"), will be considered to have violated the divine commands. Also no one has the right to revise the decision of a "qadi". Of course, the qadihimself may re-examine his judgment.