Wednesday, April 02, 2008

The Double-Whammy April's Fool Divorce: Kena Fasakh atau Beri Talaaq?

Depends on how male chauvinistic khinzir or feministic you are.

It all started with this piece of news.

And it spread like wild fire all over the internet with different twists, of course.

Is there a difference? The former is the divorcee and the later is the divorcer, right?

Divorce - Rights Of Muslim Women Under The Shariah Laws

M. N. Salie.

When a Muslim woman gets married, she is bound by the Shariah laws. The Islamic Family Laws are based on verses from the Holy Quran and Hadith (words and deeds of Prophet Muhammad (saw) Unfortunately, very few Muslim women seeking divorce know their rights as laid down by the Shariah Family Laws. Thus, when their marriage breaks down and becomes irreconcilable, they do not know what to do, or whom to consult for advice.

We normally advise couples whose marriages are heading for dissolution to go for counselling or consultation with the relevant informed and capable religious Scholars..

It is vital that women should know what their rights are pertaining to filing for divorce, child custody and maintenance, maintenance during their ‘iddah’ period (the first three menstrual cycles after divorce), division of matrimonial property, debts their husbands owe to them, consoliatory gift (payment in monetary value as compensation based on the number of years of marriage for services rendered by the ex-wife to the ex-husband during the period of marriage).

Types Of Divorce

Under Islamic Family Law, there are four main types of divorce:

I. (TYPE 1) By utterance/ pronouncement of divorce by the husband

II. (TYPE 2) Breach of marriage contract by the husband

III. (TYPE 3) Divorce by redemption

IV. (TYPE 4) Dissolution of marriage on grounds of cruelty, neglect, disability, failure to perform marital obligations, insanity, assault and causing injury to wife, and/ or any other reason stipulated under the Shariah Laws.

Some Muslim women regard divorce as a sin. They have a notion that applying for a divorce would hinder their departed souls from reaching the gates of Heaven. Such women are subservient to their husbands, remaining obedient no matter what. They wrongly assume that it is their husbands who hold the right to divorce, not them. This unfounded notion has been in existence for ages!

A wife whose husband tries to suspend the marriage indefinitely has the right to file for divorce under TYPE 2 – Breach of marriage contract by the husband or TYPE 4 - Dissolution of marriage on grounds of cruelty, neglect, disability, failure to perform his marital obligations, insanity, assault and causing injury to wife, and/ or any other reasons stipulated under the Islamic Family Laws. Every Muslim wife should remember that the husband only has the right to divorce under:

· TYPE 1 - by way of his utterance / pronouncement whether by mutual consent or otherwise

· TYPE 3 - by way of redemption whereby both parties must agree as to the amount to be paid by the wife to the husband for her redemption, that is, to buy out her freedom.

The wife, being the applicant, has the right to file for divorce under TYPE 2 – breach of marriage contract and under TYPE 4 – to dissolve the marriage on grounds of cruelty, neglect, failure to provide maintenance and causing injuries (Fasakh).- Of course, one needs proof of such incidents. Thus, it is important to obtain copies of police and medical reports as supporting evidence other than witnesses to testify in courts.

With regards to the Type 4 Divorce where the wife has applied to a judicial body for annulment - (i.e. The Muslim Judicial Council) and such annulment has been granted, the divorcee has to go under iddah for a period of three menstrual cycles to ensure that she is not pregnant. Should she be pregnant the birth of the child will terminate her iddah.

While the divorcee observes her iddah, the Fasakh cannot be revoked, as in the case of Talaaq. However, should the couple decide to renew their relationship then they have to enter into a new marital contract, which needs to be solemnized with a new dowry included. This can also materialise after the divorcee's iddah has expired. In fact this situation can be repeated any number of times. (This is the general viewpoint although there are a few Scholars who hold different points of view.)

However, in the case of Talaaq, if the husband has made one pronouncement he would still have two Talaaq decrees in reserve, or, if he had pronounced two, then he would have one left. This is the case irrespective of whether the Talaaq pro­nouncements were revoked or not.

Another important difference between Fasakh and Talaaq is that if a Fasakh has been granted before the marriage was consummated then the wife is not enti­tled, as a wajib, to the Sadaaq or dowry. But in the case of Talaaq, under the same conditions as above, the wife gets half the dowry settlement.

If at the time of marriage the dowry has not been stipulated, then it behoves the hus­band to present her with a gift, known as mut-ah.

And Allah knows best.

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