“Divorce is one of the institutions in Islam regarding which much misconception prevails, so much so that even the Islamic law, as administered in the Courts, is not free from these misconceptions.” (Maulana Mohammad Ali in “Commentary on the Holy Quran”, p. 96)
Before the days of the Prophet, divorce amongst the ancient Arabs was of frequent occurrence. However, the Prophet had indicated his dislike for it in no uncertain terms, and is reported to have once said that “with Allah, the most detestable of all things permitted is divorce.”
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In Muhammadan law, although matrimony is a civil contract, the husband usually enjoys special privileges, and the wife suffers corresponding disabilities. The wife sometimes remains at her husband’s mercy owing to polygamy and the inequality of the law of divorce.
Superior Right of Husband:
The privileges enjoyed by the husband are mainly two. Firstly, he can divorce his wife without any misbehaviour on her part and without assigning any cause. Moreover, even if he binds himself by a formal promise not to exercise such an absolute power of divorce, he will not be prevented from exercising it, and a divorce pronounced by him in violation of such a promise will be as effectual. Secondly, he can have four wives at a time, whereas a Muslim woman can have only one husband at a time.
The corresponding disabilities suffered by the wife are also two. Firstly, she cannot divorce herself from her husband, except by obtaining a decree of a Civil Court. Even if she desires a divorce, and no grounds exist on which she can obtain it from a Civil Court, she must cajole her husband into granting it. Secondly, she cannot have more than one husband at a time.
Modes of Divorce:
Divorce under Muhammadan law may be effected (i) by the husband in which case, it is called talak; or (ii) by the mutual consent of the parties. This may be khula or mubara’at, according to the terms of the contract, or (iii) by a judicial decree in a suit filed by the husband or the wife. The wife cannot divorce herself from her husband without his consent, except under a contract made before or after marriage, but she may, in some cases, obtain a divorce by a judicial decree.