TERMINATION OF MARRIAGE AND ITS LEGAL CONSEQUENCES UNDER ISLAMIC LAW
TERMINATION OF MARRIAGE AND ITS LEGAL CONSEQUENCES UNDER ISLAMIC LAW
No Thumbnail Available
Date
1996-08
Authors
IBRAHIM, AHMAD ALIYU
Journal Title
Journal ISSN
Volume Title
Publisher
Abstract
Even though marriage, under Islamic Law, is not meant to be a
temporary affair, the reality of life shows that some marriages are
better terminated, because the objectives for which marriage has
been instituted cannot be achieved through them. Thus,
terminating such failed marriages is allowed so as to protect the
welfare of the community ad social morality.
Since the Shari'ah has allowed the termination of any marriage
which has not achieved and cannot achieve its objectives, it
provides detailed explanations regarding the circumstances and
rules of terminating such marriage and anything that appertains to
that.
But unfortunately the vast majority of Muslims, in our
society, are ignorant of these rules, especially the rules that
deal with talaq (divorce), Khul (divorce with consideration) ,
termination of marriage by judicial process, iddah (waiting period
before re-marrying) and hadanah (custody of children after
termination of marriage). The result is, in most cases, depriving
some of the spouses, especially the women, of their legal rights
which consequently has a serious repercussions not only on the
spouses or their immediate family, but also on the society
generally.
The worst part of it is that even the judges to whom most of
the cases of terminating marriage are brought are more often than
not, not well-versed in or are totally ignorant of many of these
rules. The undesirable consequences of this is that, many cases
(regarding termination of marriage) are wrongly decided by these
judges, thereby committing a serious injustice to some of the
spouses, especially the wives, regarding their rights to
maintenance during the iddah, or their rights to hadanah and Khul
What usually exacerbates the injustice is the ignorance of the
spouses regarding their rights.
In view of the above and similar reasons, there should be a
detailed work, based on the original and detailed (Arabic) sources,
dealing with termination of marriage and its legal effect, under
the shari'ah (without confining this to one particular madhhab),
in the language that many of our literate Muslim brothers and
sisters understand so that they know much of these rules. This
may hopefully help in mitigating most of our problems emanating
from ignorance of the rules. Hence the choice of the topic of
this thesis.
Chapter one of the thesis is the general survey on the islamic
conception of marriage and its termination. The chapter also
discusses the differences between talaq (divorce) and faskh
(annulment of marriage) and the legal implication of the
differences and the circumstances when termination is legally
considered as talaq and when it is considered as faskh.
Then the thesis is divided into two parts: part I deals with
the procedure of talaq and under it: chapter two deals with talaq,
its definition, and wisdom for legislating it, the extent of each
of the spouses rights regarding it. It also deals with capacity of
the person effecting talaq and the subject matter of talaq methods
of effecting divorce and witnesses in divorce.
Chapter three discusses the question of making talaq subject
to certain conditions and delegating power to someone to divorce by
the husband. Various views of schools of jurisprudence,
especially Maliki and Hanafi schools regarding the issues, are
extensively discussed.
Chapter four deals with classifications of talaq: Talaq
sunni, talaq bid'iy and tripple talaq, tlaq raj'iy and talaq
ba'in. Revocation of talaq after effecting it by the husband is
also dealt with in the chapter, extensively.
Chapter five is an extensive exposition of khul (Divorce with
consideration) and its legal effect; court's role in it and
capacity of the parties to it; and whether khul is legally
considered as talaq or faskh.
In chapter six termination of marriage through judicial
process is extensively discussed. In it, the grounds for such
terminations are expounded.
Chapter seven deals with termination by means of ila (vow of
continence) and li'an.
Zihar is also dealt with even though is not actually a
termination. But it was historically considered as termination
and it also creates a temporary prohibition of conjugal
relationship between the spouses until the husband performs
exiation (kaffarah).
Part two of the thesis is a detailed exposition of the legal
consequence of termination of marriage. Under it chapter eight
deals with iddah (waiting period which is observed by a divorcee
before she marries). The philosophy and various types of iddah,
the wife's right to nafaqah (maintenance) during the iddah, are
thoroughly discussed.
Chapter nine is the extensive exposition of rada (suckling)
and hadanah (custody of children) after talaq., The question of
payment to child's mother for suckling the child after separation
from the child's father, and who is entitled to have the custody of
the child after divorce, and who is responsible for paying the
expenses of the hadanah, including the remuneration of the
custodian and provisions for accommodation and servant are all
discussed.
Chapter ten is the summary of what has been discussed in the
main body of the thesis, observations of what is practically
obtaining in our society concerning termination of marriage and
some recommendations, which will hopefully help in solving problems
concerning termination of marriage (in particular) and marriage
itself, in general.
Alhamdu Lillah
Description
BEING A THES1S SUBMITTED TO THE POST GRADUATE
SCHOOL AHMADU BELLO UNIVERSITY. ZARIA IN PARTIAL
FULFILLMENT OF THE REQUIREMENTS FOR THE AWARD OF
PH.D (LAW)
DEPARTMENT OF ISLAMIC LAW
FACULTY OF LAW
INSTITUTE OF ADMINISTRATION
AHMADU BELLO UNIVERSITY
ZARIA.
DATE; August, 1996
Keywords
TERMINATION,, MARRIAGE,, LEGAL CONSEQUENCES,, ISLAMIC LAW