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LEGAL DISSOLUTION OF MARRIAGE IN ISLAM TERMS AND CONDITIONS
M.Toraev
head of the cycle of combat and physical training of the
Ministry of Internal Affairs of the Republic of Uzbekistan
Abstract:
This article scientifically and theoretically studies the concept of marriage in
Islamic law, the legal grounds for the dissolution of marriage, various legal grounds for the
dissolution of marriage, issues of iddah, situations in which divorce may occur between
husband and wife, such as khulu', ila', zihar, and mula'ana. At the same time, issues related to
the dissolution of marriage are analyzed based on the sources of Islamic law.
Keywords:
marriage, idda, hulu', iyla, zihar, mulaana, fiqh, expiation, divorce.
In all legal systems, the issue of marriage annulment is considered one of the important
aspects in the regulation of family relations. However, different legal systems approach this
issue differently. However, the common goal of all legal systems is to ensure the stability of
marriage and preserve family relationships.
Divorce is also prohibited in Islamic law and is permitted only in cases of necessity. Because
in Islamic teachings, marriage is considered as a sacred covenant, family is the pillar of
society, and its violation causes serious consequences.
According to Islamic jurisprudence, divorce is considered a last resort only when the
relationship between husband and wife cannot be improved, that is, when it is impossible to
achieve the goals of family life. This is stated in the hadiths narrated from the Prophet (peace
be upon him): “Marry, and do not rush into divorce, for the Throne of the Most Gracious
trembles at the word divorce,” and “The most halal thing that Allah dislikes is divorce.” [1. –
B.445.].
In Islamic legal doctrine, marriage is valued as a sacred covenant and its maintenance is
defined as one of the main goals. That is why annulment of marriage, i.e. divorce, is actually
not approved in Islamic jurisprudence, but is allowed only in case of necessity. Burhanuddin
Marginani in his famous work "Hidaya" states about this: "Divorce is actually forbidden, but
it is allowed out of necessity" [2. -B.248.; 3. –B.272445.; 4. -B.73.].
According to Islamic jurists, the dissolution of marriage is considered an exceptional case.
That is, divorce is permitted only when the relationship between husband and wife has
deteriorated and the possibility of living together has disappeared. This approach, on the one
hand, aims to preserve the sanctity of the family institution, and on the other, to protect the
interests of both parties.
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In Islamic law, a marriage can be annulled for various legal reasons. In particular, a marriage
loses its validity in the following cases:
1.
Death
- the marriage relationship ends naturally with the death of one of the
spouses.
2.
Divorce
– is a method of divorce carried out by the man and is carried out in
accordance with the signs of Sharia.
3.
Khulu'
- occurs on the basis of a woman demanding a divorce from her husband in
return for a certain compensation.
4.
Difference
– a divorce carried out by a judge or authorized judicial authority,
usually due to various disputes, injustice, or failure to provide maintenance.
5.
Ila
– a situation that occurs when a husband swears to his wife not to have sexual
intercourse for a certain period of time and then does not have intercourse even after this
period has expired.
6.
Zihar
- is one of the vows of the Jahiliyyah period, which is avoided as much as
possible in Islam , but if it is followed, it causes divorce.
7.
Thought
- termination of marriage by both parties swearing in the name of God
without proof of adultery between the spouses.
Thus, the annulment of marriage in Islamic law is always based on legal basis and wisdom.
This is another form of legal approach aimed at ensuring the stability of family and society in
Sharia.
In Islamic jurisprudence, marriage is a sacred covenant between two sane, adult men and
women, based on the requirements of Sharia law. This covenant is realized through a
marriage contract (contract) and binds the two individuals with mutual rights and obligations
for life.
One of the circumstances that terminates a marriage is
the death of one of the spouses
. In
this case, the marriage ends spontaneously, that is, without any separate legal action. Islamic
jurists consider this a natural event and explain it as the “dissolution of the marriage” – that is,
its automatic termination in accordance with the requirements of the Sharia. A woman is
obliged to wait for
the iddah
(waiting period) after the death of her husband. The word
“iddah” means “counting” in Arabic. In the term, it refers to the interim period during which
a woman who has been separated from her husband due to death or divorce waits without
touching another husband. The iddah is actually a period established in the Sharia to honor
the memory of the deceased husband and the life she spent with the divorced husband, and
most importantly, to determine whether the woman is pregnant [3. –B.348.].
This period is clearly defined in the Quran and is
four months and ten days
(Surah Al-
Baqarah, verse 234). This period is necessary to determine the woman's pregnancy status and
possible nisab issues after the marriage is concluded. The spouse of a deceased person has the
right to inherit a certain share. If the man has died, his wife receives 1/4 of his inheritance (if
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he has children). If there are no children, 1/2 of the share is withheld (Surah An-Nisa, verse
12). In this case, there is no need for a ruling or decision such as "talaq" or "tafriq". The
marriage is immediately considered null and void according to Sharia law. Termination of
marriage upon death serves, first of all, to protect human rights. It opens up the possibility of
a new marriage for the deceased spouse.
In the Islamic legal system (fiqh) , the right
to divorce
, that is, to dissolve a marriage, is
primarily vested in the husband. This right is established in the Quran and Sunnah and is
considered one of the legal powers of the husband in connection with his position of
leadership in marital relations. However, this right is not absolute and unconditional; its
exercise requires certain legal and intellectual conditions.
The following are necessary for divorce to be valid:
first , to say or write or indicate by
gesture the word that is usually used in the dictionary and custom to mean divorce; second, to
understand the meaning of the word; if someone is taught the word for divorce in another
language and uses it without knowing its meaning, then divorce does not apply; third, to
attribute the word to the wife. This includes saying the woman's name, addressing her,
describing her, pointing to her, etc.; fourth, there must be no doubt about the word and
number of the word for divorce. Even if the word is pronounced incorrectly, divorce does
apply
[5.].
This issue is also supported by Quranic verses and hadiths. The Quran directly addresses men
in its rulings on divorce: “ When you divorce women, then calculate their waiting periods…”
(Surah At-Talaq, verse 1) [6.]. This verse indicates that the command and responsibility for
divorce are directed at men, and that they are responsible for ending the marriage.
Islamic law, by giving the husband the right to divorce, also places a responsibility on him.
The husband not only has the right to divorce, but he also has the obligation to exercise it
with justice, reason, and respect. This right must be exercised with caution, in accordance
with the Shariah, and with good manners.
Islamic scholars have different opinions about whether the divorce of a drunk person who has
lost consciousness due to the consumption of alcoholic beverages or narcotics is valid. Some
say that the divorce of such a drunk person is not considered legitimate and does not entail
any legal consequences, while some scholars say that the divorce of a drunk person is valid [7.
–P.399-400.]. In “ Fatawa Qazikhan ” it is said : “ The divorce of a person who is drunk from
wine and alcohol is invalid ” [3. –P.286.] . The chapter on “ Divorce by Writing ” in “ Fatawa
Qazi Khan ” states the following, which is of some importance for today’s technologically
advanced era: “ There are two types of writing: Clear: writing on a page, wall, or ground in a
way that can be read and understood. Unclear: writing on air, water, or anything else that
cannot be read and understood. In the second “ unclear ” type of writing, if there is no firm
intention in the heart, divorce does not occur. If the writing is written clearly enough to be
read and divorce is intended, then divorce occurs, otherwise it does not. In the first type of
writing, that is, in the “ clear ” case, divorce occurs regardless of whether there was intention
or not. What is written is never nullified. If the person who wrote the divorce and sent it
wrote, “ You are divorced , ” then divorce occurs from the time he wrote it, and the iddah
period is required.
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“khulu’”
is used literally to mean “to remove clothes,” in Islamic law it refers to the
dissolution of a marriage by mutual consent by a woman seeking a divorce from her husband
in exchange for certain property. Thus, khulu’ is a form of divorce initiated by the woman,
which is subject to certain legal and material conditions in Sharia[8.].
According to fiqh sources, in the works "Fatawa Qazikhan", "Hidoya" and "Khulosat al-
Fatawa", khulu' is considered a binding divorce. That is, if khulu' is performed, a binding
divorce occurs between the husband and wife and they cannot remarry until they remarry.
The main difference between khulu' and talaq is that this process is carried out by mutual
agreement and is initiated by the woman. In this interpretation, the khulu' contract expresses
the woman's desire to end the marriage, which she achieves by returning the dowry or giving
her husband certain property. In this case, the material compensation given by the woman
demonstrates her firm determination to end the marriage and her willingness to renounce the
husband's property obligations.
Furthermore, in some situations, the woman's consent to additional material benefits indicates
the end of harmony, solidarity, and love in the family. Therefore, Islamic jurisprudence
considers it advisable not to preserve such a marriage, but to terminate it in a just manner.
In fact, annulment of marriage through the Khulu' contract expresses a number of meanings:
If a woman demands material benefits despite such difficult circumstances, this shows her
selfish attitude towards wealth.
if the husband abandons the family under these conditions, this will reveal his attitude
towards marriage and his wife.
Viewed from this point of view, termination of marriage through Khulu' appears as a legal
form of Islamic law to accurately assess family relations and, if necessary, resolve them fairly.
Ila
is defined in Islamic jurisprudence (fiqh) as a condition in which a husband swears in the
name of Allah not to have sexual intercourse with his lawful wife for a certain period of time
and remains steadfast in this oath. This legal condition is a matter that requires serious
attention in family relations and is closely related to the rights of a woman within the
framework of marriage, in particular, the right to conjugal intimacy[9.].
In the Holy Qur'an, the issue of ilah is directly mentioned:
“ For those who swear not to approach their wives, there is a waiting period of four months.
If they refrain (from their oaths) - then Allah is Forgiving and Merciful. If they decide to
divorce - then Allah is Hearing and Knowing. ” (Surah Al-Baqarah, verses 226-227) [6.].
Based on this verse, scholars argue that
a period of four months
is prescribed for the
husband in the case of ilaa.
The trick occurs in the following order:
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A man swears by Allah to his wife, "I will not have sexual intercourse with you for four
months (or a certain period of time) ." If he does not have sexual intercourse despite this, that
is, if he keeps his oath, the ruling of ila' occurs.
If a man violates his oath and has intercourse before the end of the four-month period, in this
case it is required to make expiation for the oath.
If the four-month period has passed and he still does not approach his partner, the marriage
can be dissolved through the intervention of a judge, that is,
tafirq (divorce)
occurs.
Ila actually represents a temporary gap in the family and coldness in the relationship between
husband and wife. It is not only related to personal feelings, but also to the requirements of
Sharia:
If the husband refrains from this and confirms it with an oath, the Sharia protects the interests
of the woman by limiting it. Therefore, the period of ilaa cannot last more than four months.
According to the Madhhab of Abu Hanifa, after four months, a raj'i divorce is valid. It is not
necessary for the husband to divorce her. If the husband does not keep his oath, he is required
to make an expiation for the oath.
The Hanafi madhhab and other major madhhabs also recognize the ilayah and are unanimous
on the following points:
Four months is the maximum period. After that, the husband is required to either break his
oath or dissolve the marriage.
If the oath is broken,
the expiation
is to feed or clothe ten poor people or fast for three days
(based on Surah Al-Ma'idah, verse 89). From the above information, we can conclude that Ila
is a complex legal situation that can arise in a husband-wife relationship, and Islamic law
takes into account the interests of the woman in this case as well. Based on the teachings of
the Holy Quran and Sunnah, specific procedures have been established to limit Ila and
eliminate the harm that follows it.
zihar
is related to the Arabic word "zohr", which means the back of a person. In Islamic law
and Sharia, "zihar" is a form of separation between husband and wife. It means that the
husband tells his wife, "You are like the back of my mother to me," that sexual intercourse
with her is forbidden.[10.]
This practice actually originated in the socio-legal life of the Arabs. In the Arabs, this custom
was mainly a form of warning the wife against her husband and stopping the formation of
family relations. According to Islamic teachings, after such words, it is forbidden for the
husband to have sexual intercourse with his wife, and marriage is actually a written contract
or relationship.
In Sharia, zihar can only be performed by the husband, and this decision has certain legal
consequences. The husband who utters the words of zihar has no right to use them again
against his wife, in his own mind and in his complete judgment. There is no intimacy through
zihar, and the marriage relationship can only be terminated in one case.
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The husband who utters the words of zihar, if he has initiated it, will be held responsible in
the Shariah for the oath. If the husband does not keep his word in the current situation, he
will be required to make atonement for the oath. In order to make atonement for this oath, the
husband must perform it in accordance with the other Shariah requirements.
The practice of zihar, for women in a state of separation who have taken an oath, is to help
ensure a certain level of fairness in family rights and relationships. It is to show the
appropriate and appropriate actions and actions to ensure a high level of unity of heart. If a
person in such a situation enters into a state of oath-taking, they will affect their relationships
and lifestyle. Performing zihar disrupts family ties and can lead to a reduction in the
relationship between husband and wife.
The Hanafi Madhhab and the Shafi'i Madhhab have adopted the same decision regarding the
practice of zihar and the measures prescribed for it. In both of their madhhabs, several ways
after zihar, decisions about their shari'i use are also defined[11.].
Islamic law, with regard to the zihar, examines the benefits and effects of annulment of
marriage according to need. These rulings require individuals to memorize and strictly apply
their decisions. The procedure for this action, if it is suitable for it, is aimed at balancing
people's lives and protecting their rights.
Mulaanah (Arabic: ةنَنَ نَام) is a form of marriage dissolution in Islamic law, which is carried
out in cases of conflict between husband and wife. Mulaanah is a specific process in which
husband and wife seek to dissolve the marriage by accusing each other of their marital
relationship and convincingly proving the accusations.
Mulaanah is usually performed when there are serious problems in the relationship between a
husband and wife. The essence of mulaanah is that if the husband can simply and
convincingly convince his wife and her family of their actions, their marriage will be
officially ended.
In this case, the husband and wife take an oath to accuse each other and prove their guilt. If
the wife feels that she is being accused, she also takes an oath. In this process, the accusations
made must be mutually substantiated, that is, there must be a reliable basis for any accusation.
The review must comply with the legal and Sharia requirements for the dissolution of family
relations. In this case, the current decisions are made based on the guilt and convictions of the
husband and wife. The necessary conditions for the review are:
Husband and wife swear an oath if they are convinced of their faults towards each other.
These oaths must only be unchangeable and reliable.
Both parties must convince each other of their faults. In this case, the faults are justified and,
at the same time, are the main reason that leads to conflicting situations in their marriage.
The husband and wife's faults must be proven to each other in a reliable manner. If the faults
are reliable, the outcome of the discussion can be certain.
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According to Islamic law, adultery is committed through mutual accusations between
husband and wife and leads to the dissolution of the marriage. The Holy Quran pays special
attention to the situation of adultery:
“The ruling for a woman who swears with any fault according to the Book of Allah is that
she must prove that she is of sound mind and understanding. If she errs in her oaths, they
must also perform their duty.” (Surah An-Nisa, verse 6) [6.]
This verse emphasizes that marriage can be dissolved by accusation and proof of one's own
guilt. The accused parties take an oath. If their guilt is clear, the stage of mu'ala'nah is
adopted in this order. If both parties can prove their guilt through their oaths, the marriage is
dissolved. This process must be carried out in accordance with Sharia. The purpose of
mu'ala'nah is to dissolve the marriage through the faults of both parties, the contradictions
and difficulties in their relationship. This is not at all an attempt to maintain family peace and
stability. Mu'ala'nah only helps to resolve misunderstandings in the family relationship of
husband and wife and to identify faults.
In Islam, marriage is considered obligatory and the family is indissoluble, and the bond
between a husband and a wife is recognized as sacred. Accordingly, Islam prohibits a
husband and a wife from living together without marriage. This encourages Muslims to treat
marriage and the family with honor and caution. In order to ensure the stability of family life,
Islamic law allows for the dissolution of marriage if these goals cannot be achieved. The
increase in minor family disputes, which is relevant today, has become a problem that can be
solved by studying the instructions of the Sharia and using them effectively. Islamic family
law helps to correctly understand the obligations of husband and wife related to the
dissolution of marriage, and to deeply understand the sacred importance of the family and
marriage.
List of used literature:
1. Sheikh Muhammad Sadiq Muhammad Yusuf. Happy family. - T.: "Hilal-Nashr", 2016. -
528 p.
2. Burhoniddin Marginani. Al-Hidaya Sharh Bidayatul Mubtadi. - Beirut.: "Dar al-kutub al-
ilmiyya", 1971. 1-2 J. - B. 248.
3. Fakhruddin Abulmakhafir Hasan ibn Mansur Ozgandi. Fatavoi Qazikhan. - Beirut.:
"Darul Fikr", 2010. Volume 7. - 376 p.
4. Iftikharuddin Tahir ibn Abdurrashid al-Bukhari. Conclusion al-fatawa. 2 J. - Pakistan.:
Maktabat ar-Rashidiyya library fund. Lithograph. - No. 72263. – 412 p.
5. About divorce // https://fiqh.uz/maqola/357
6. Translation of the meanings of the Holy Quran. Translator: Abdulaziz Mansur
//www.ziyouz.com library
7. Sheikh Muhammad Sadiq Muhammad Yusuf. Enough. Part 2. - T.: "Sharq", 2011. - 584
p.
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8. Khulu'// https://islom.uz/maqola/810
9. Iyla and giving the wife free will// https://fiqh.uz/maqola/407
10. 10 Zihar // https://fiqh.uz/fiqh-uz/quraani-karim/402-zi-or
11. Abdulaziz Mansur. Translation and interpretation of the meanings of the Holy Quran. –
T.: “Tashkent Islamic University” Publishing House, 2006. –624 p.
