Marriage is the very foundation
of civil society and no part of the laws and institutions of a country can be
more vital importance to its subjects than those which regulate the manner and
conditions of forming and, if necessary, of dissolving, the marriage contract.
(1) Firm union of the husband and wife is a
necessary condition for a happy family life. Islam therefore, insists upon the
subsistence of a marriage and prescribes that breach of marriage contract
should be avoided. Initially no marriage is contracted to be dissolved but in
unfortunate circumstances the matrimonial contract is broken.
One of the ways
of such dissolution is by way of divorce. Under Muslim law the divorce may take
place by the act of the parties themselves or by a decree of the court of law. However
in whatever manner the divorce is effected it has not been regarded as a rule
of life. In Islam, divorce is considered as an exception to the status of
marriage. The Prophet declared that among the things which have been permitted
by law, divorce is the worst. Divorce being an evil, it must be avoided as far
as possible. But in some occasions this evil becomes a necessity, because when
it is impossible for the parties to the marriage to carry on their union with
mutual affection and love then it is better to allow them to get separated than
compel them to live together in an atmosphere of hatred and disaffection. The
basis of divorce in Islamic law is the inability of the spouses to live
together rather than any specific cause (or guilt of a party) on account of
which the parties cannot live together.
(2) It is sometimes suggested that
the greatest defect of the Islamic system is the absolute power given to the
husband to divorce his wife without cause. The reforms of Mohammed marked a new
departure in the history of Eastern legislation. He restrained the power of
divorce possessed by the husband; he gave to the women the right of obtaining a
separation on reasonable grounds; and towards the end of his life he went so
far as practically to forbid its exercise by the men without the intervention
of arbiters or a judge.
(3) Prophet (PBUH) dislike it
most because it prevented conjugal happiness and interfered with the proper
brining up the children.
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