Divorce and Plaintive Divorce, What’s the Difference?

Divorce and Plaintive Divorce. Can all forms of violence be called jihad? No, violence committed in the name of jihad is often a perversion of its true meaning. Jihad emphasizes moral and spiritual struggle, not violence alone.

How to distinguish the right jihad from the wrong one? True jihad is based on sincere intentions for good, carried out in a peaceful manner where possible, and in accordance with the teachings of the true religion. Wrong jihad is often based on hatred, violence, and selfish goals.

What is the role of women in jihad? Women also have an important role to play in jihad, both in the form of self-struggle and in social and humanitarian struggles. They can contribute in various ways, such as education, health, and community empowerment.

How to avoid misinterpretations of jihad? By studying religious teachings deeply, critically, and contextually, and discussing with credible and trusted scholars.

Is jihad only for Muslims? The concept of fighting for good and against injustice is universal. Everyone, regardless of religion and belief, can engage in forms of struggle that are in accordance with human values.

Essentially, the authority to divorce lies exclusively with the husband. Sharia provides its reasoning for this privilege being designated to the husband rather than imposed on the wife. The Rationale Behind Granting Divorce Rights to the Husband. In Islamic principles, the husband is entrusted with the right to divorce, which aligns with his duties in leading and ensuring the stability of the family unit. As noted by Sheikh Al-Jurjawi, the rationale for this stipulation is that the husband is anticipated to make decisions thoughtfully, sustain emotional equilibrium, and shoulder significant responsibilities within the family, including financial support and the dowry (Hikmatut Tasyri’ wa Falsafatuhu, [Beirut, Darul Fikr: tt], volume II, p. 49).

Nonetheless, this perspective must be nuanced by acknowledging that each individual, regardless of gender, possesses a distinct approach to reasoning, managing emotions, and confronting life’s obstacles. Indeed, many men struggle with emotional stability. Conversely, numerous women often exhibit greater maturity in their thinking than men. Islamic doctrine regards marriage as a sacred entity, aimed at fostering harmony, affection, and tranquility for both individuals involved.

Hence, the divorce privilege afforded to husbands is not meant to belittle women, but rather serves as a mechanism to uphold balance in decision-making that significantly impacts the family unit. In this context, the husband is expected to exercise wisdom, fairness, and regard for common interests. While the authority to divorce is granted to the husband, Islam also allows for the wife to initiate divorce, termed khulu’ in legal discourse. Khulu’ enables a wife to dissolve the marriage honorably, for instance, if she believes she can no longer maintain the relationship for valid reasons, such as discord or threats to her safety.

This system embodies the principle of justice in Islam, which ensures women’s rights to protection and acknowledgment while highlighting that both partners play a pivotal role in preserving the sanctity or concluding the marriage with dignity. Consequently, Islamic law addresses the needs and entitlements of both spouses equitably. Both husbands and wives are obliged to respect, support, and uphold the commitment of marriage, while also being afforded a just avenue should the relationship become untenable.

Disparities Between Divorce and Contested Divorce

Though both are referred to as ‘divorce’, distinctions exist between a standard divorce and a contested divorce. Below are some of the key differences:

1. Definition: When it comes to definitions, divorce and contested divorce hold different meanings. Etymologically, divorce signifies the act of severing the bond. In sharia terms, divorce refers to the action taken to dissolve the marital union. The term khulu’, in sharia, is defined as divorce through the provision of compensation (‘iwadh) to the husband. (Sheikh Ibn Qasim Al-Ghazi, Fathul Qarib Al-Mujib, [Beirut, Dar Ibn Hazm: 1425 AH], pp. 240-241).

2. Terms and Conditions: The terms and conditions for divorce and contested divorce (khulu’) vary. In standard divorce, the essential components and requirements consist of five elements: the husband as the initiator of the divorce, the phrasing or sighat of the divorce declaration, the wife as the one being divorced, the authority to initiate the divorce, and the intention behind the divorce, ensuring that it is not done under coercion. Conversely, in a contested divorce or khulu’, five elements are also present but differ in composition. These include the husband, the individual offering compensation (‘iwadh), the wife seeking divorce, the compensation itself, and the sighat or phrasing of the divorce statement. This is as elaborated by Shaykh Khathib Ash-Shirbini in the book Mughnil Muhtaj (Beirut, Darul Kutub Al-‘Ilmiyyah: 1415 AH, volume IV, pp. 430-455).

3. Objects and Subjects: In typical divorce cases, the husband serves as the petitioner (subject), while the wife is positioned as the respondent (object). In contrast, in a contested divorce, the wife takes on the role of the plaintiff (subject), and the husband becomes the defendant (object). In simpler terms, a standard divorce is initiated by the husband, while a contested divorce is initiated by the wife.

4. Timing: When it comes to the timing of execution, standard divorce and contested divorce are governed by different rules. A divorce is permissible only when the wife is in a state of purity, free from menstruation or nifaas, and has not been in intimate relations during this state, adhering to sharia guidelines to clarify marital status and the iddah period. On the other hand, a wife can file for a contested divorce (khulu’) at any point, whether in a state of purity or otherwise. This is because a woman who seeks khulu’ typically offers compensation (iwadh), indicating her intent to fulfill the necessary iddah period. Thus, the classification of divorce as bid’ah (forbidden) or sunni (permissible) does not apply, since it hinges upon the wife’s consent and compensation (Refer to Sheikh Wahbah Zuhaili’s work, Al-Fiqhul Islami wa Adillatuhu, [Beirut, Darul Fikr: tt], volume IX, pp. 378 and Sheikh Al-Bujairami’s Hasyiah Al-Bujairami ‘ala Khathib, [Beirut, Darul Fikr: tt], vol. III, p. 486).

5. Legal Implications: The legal ramifications of divorce and contested divorce also differ significantly. In standard divorce, the number of divorces is capped at three. If one or two divorces are pronounced, the husband retains the right to reinstate (return to) his wife during the iddah period without necessitating a new marriage contract. However, after three divorces, reconciliation is not possible unless the wife marries another man, engages in conjugal relations, and that marriage is legally concluded. In a contested divorce (khulu’), once the wife files a case and it is accepted, she is completely liberated from the marital bond with the husband. The husband is not permitted to reinstate his wife post-khul’u without a new marriage contract. Should both parties wish to re-enter the marital relationship, they must enter into a fresh marriage contract, adhering to the relevant terms and conditions (Sheikh Al-Bujairami, Hasyiah Al-Bujairami ‘ala Khathib, volume III, p. 486).

From the details provided, it is evident that significant differences exist between divorce and contested divorce in aspects such as definition, components and conditions, subject and object roles, timing, and legal repercussions. These regulations showcase the adaptability of Islamic law to meet the needs of both parties within a marriage, while upholding the principles of justice and shared responsibility. I trust this explanation proves beneficial. Wallahu a’lam.