1) Can husband divorce his wife unilaterally? 2) WHICH FORM OF RIBA IS PROHIBITED?

Answered according to Hanafi Fiqh by Askimam.org

First question:

Can husband divorce his wife unilaterally?

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Talaq means freeing oneself from the contract of Nikah (or the bond of holy matrimony). Marriage is a solemn contract, a strong commitment and a tenacious bond [2/235, 2/237, 4/21]. By virtue of this solemn contract a man and a woman make pledge to accept the rights and obligations laid down by the Quran in respect of their being husband and wife in order to lead a life of companionship. Since this contract was made between two parties, namely a man and a woman, no one of them has the right to revoke it on one’s own, whenever one wants, by just saying, “divorce, divorce, divorce”. The rights of the other person have also to be safeguarded. Quran does not leave the matter of divorce to an individual. The society is ordered to take up this matter which decides on the disputed issue. Now days, this is either called a government or a court. Quran says in 4:35 If you fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers; if they wish for agreement, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things. [4:35] If we see the above verse carefully, the addressees are neither the arbiters nor the husband or wife but Islamic Authority or the Court. If the arbiters succeed to persuade them to come together, then well and good, but if their efforts fail, they will have to report to the court that appointed them. This court will decide whether a divorce should become effective and what the conditions should be. When the prophet [p.b.u.h] was alive, he himself was the judge (of such a court). The first verse of Sura At -Talaq reads: O Nabi (p.b.u.h), when you divorce your women then… [65:1] In 65:1, Nabi has been ordered to make the divorce effective. Nabi never divorced his own wife. This order from Allah is for deciding the divorce cases for believers. In 4:59, the believers have been commanded by Allah to refer their disputes to Allah and Rasool. The verse 4:65 also makes this point clear. O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you dispute in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day: That is best, and most suitable for final determination. [4:59] But no! by your Lord! they do not believe (in reality) until they make you a judge of that which has become a matter of disagreement among them, and then do not find any resistance in their hearts as to what you have decided and submit with entire submission. [4:65]. Now if we come back again to verse 65:1, the key word used for divorce is “Tallaqtum” which is a plural word. This signifies that the prophet [p.b.u.h] may not be the only one to affect the decisions about divorce. Those who he charged with authority could also make such decisions when and where the prophet [p.b.u.h] would not be present, as is also suggested by 4:59. From this, it is clear that in respect of divorce, it is the Islamic Authority i.e. the Islamic Court that makes the final decision and the husband and wife cannot do so individually. The court should announce its decision when the monthly period of the woman expires, because ‘IDDAT’ will be counted from onwards. This shows that a unilateral announcement of divorce by a husband is nothing more than his intention to do so. Divorce will take effect from the day the court of law decides the case after observance of due formalities. The wife shall then complete her Iddat prescribed by Quran before she choose to remarry. If this is the process of divorce according to Quran then what shall be the position of divorces inflicted in contravention of these laws?.

Second question

WHICH FORM OF RIBA IS PROHIBITEDM?

Riba in Arabic literally means increase, gain or profit on money loaned.

No where in Quran Riba is prohibited.

The word used in Quran is Al-Riba (2:275). This is a proper noun pointing out to something not just riba. The question is which form of riba is then partcularized as Al-riba.

If Quran is to be read with reference to the context then we must find out as to what were the circumstance under which increase, gain or profit on money loaned was prohibited?

Let us examine a few verses of Quran encapsulating the word Al-Riba in verse 2:275.

Reading verse 2:272 to 2:280 we find that the issue discussed in these verses is, helping the poor deserving charity.

Explaining how to help a poor, Allah says ” help them by way of charity and if you cannot help them by charity, then give them loan and charge no usury. Such people may not be able to pay back the loan in time. If so, give them more time or remit the loan as charity. The debtor being discussed here is the poor deserving charity. (2/272-280)

Amazingly, every where in Qur’an, Al-Riba is contrasted with Charity. This obviously means that Al-Riba is haram where charity is called for.

Surprisingly again, the Qur’an nowhere condemns the giver of usury. This is perhaps the givers of usury are the poor exploited to accept loans with usury. All these facts put together are sufficient to prove that Qur’an prohibits charging of interest from the poor deserving charity.

An increase, gain or profit on commercial loans aimed at inflating resources is trading which Allah has excluded from the purview of Al-Riba.

This is what I think. I would be obliged if I am corrected.

PS:

The verses quoted are appended below for ready reference.

[2:272] You are not responsible for guiding anyone. GOD is the only one who guides whoever chooses (to be guided). Any charity you give is for your own good. Any charity you give shall be for the sake of GOD. Any charity you give will be repaid to you, without the least injustice.

[2:273] Charity shall go to the poor who are suffering in the cause of GOD, and cannot emigrate. The unaware may think that they are rich, due to their dignity. But you can recognize them by certain signs; they never beg from the people persistently. Whatever charity you give, GOD is fully aware thereof.

[2:274] Those who give to charity night and day, secr! etly and publicly, receive their recompense from their Lord; they will have nothing to fear, nor will they grieve.

[2:275] Those who charge usury are in the same position as those controlled by the devil’s influence. This is because they claim that usury is the same as commerce. However, GOD permits commerce, and prohibits usury. Thus, whoever heeds this commandment from his Lord, and refrains from usury, he may keep his past earnings, and his judgment rests with GOD. As for those who persist in usury, they incur Hell, wherein they abide forever.

[2:276] GOD condemns usury, and blesses charities. GOD dislikes every disbeliever, guilty.

[2:277] Those who believe and lead a righteous life, and observe the Contact Prayers (Salat), ! and give the obligatory charity (Zakat), they receive their recompense from their Lord; they will have nothing to fear, nor will they grieve.

[2:278] O you who believe, you shall observe GOD and refrain from all kinds of usury, if you are believers.

[2:279] If you do not, then expect a war from GOD and His messenger. But if you repent, you may keep your capitals, without inflicting injustice, or incurring injustice.

[2:280] If the debtor is unable to pay, wait for a better time. If you give up the loan as a charity, it would be better for you, if you only knew

Answer

In the name of Allah, Most Gracious, Most Merciful


Assalaamu `alaykum waRahmatullahi Wabarakatuh

 

At the outset we wish to state that while we acknowledge your desire to understand the Quran, it is imperative that you do so under the tutelage of an Aalim (Scholar of Quran and Hadith). Self study of the Quran without the tutelage of an Aalim, indeed leads to confusion and misguidance. It is Haram to undertake interpreting the Quran without having the skills to do so. Tutelage is a fundamental requirement in understanding the teachings of the Quran. Apart from the tutelage, it is necessary to understand that Shari’ah is not based on the Quran only. It is based on four legitimate proofs i.e. Quran, Hadith, Ijma’ (consensus of the Scholars) and Analogy. Confining oneself to the Quran only or Hadith only is ignorance and leads to erroneous deductions and conclusions. With this brief introduction, we state:     

 

1. A man has the right to issue a divorce. It is the teaching of the Quran, Hadith and unanimous decision of the Jurists that a husband is allowed to divorce his wife unilaterally without the Islamic Court having to do so on his behalf. His utterance of a divorce is not merely a reflection of his intention as stated by you; rather it actively institutes a Shar’ee divorce. Consider the following quotes:

 

Allah Ta’ala states in Sura Al-Baqara (2:30):

 

فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ وَتِلْكَ حُدُودُ اللَّهِ يُبَيِّنُهَا لِقَوْمٍ يَعْلَمُونَ

“Thereafter, if he (the husband) divorces her, she shall no longer remain lawful for him unless she marries a man other than him. Should he too divorce her, then there is no sin on them in their returning to each other, if they think they would maintain the limits set by Allah. These are the limits set by Allah that He makes clear to a people who know (that Allah is alone capable of setting these limits)”.

It is narrated in Sahih Al-Bukhari:

 

عن نافع عن عبد الله بن عمر رضي الله عنهما  : أنه طلق امرأته وهي حائض على رسول الله وسلم صلى الله عليه و سلم فسأل عمر بن الخطاب رسول الله صلى الله عليه و سلم عن ذلك فقال رسول الله صلى الله عليه و سلم ( مره فليرجعها ثم ليمسكها حتى تطهر ثم تحيض ثم تطهر ثم إن شاء أمسك بعد وإن شاء طلق قبل أن يمس فتلك العدة التي أمر الله أن تطلق لها النساء )

Abdullaah bin Umar (Radiyallaahu anhu) divorced his wife while she was menstruating. When his father Umar (Radiyallaahu anhu) mentioned this to Rasulullaah (Sallallaahu alayhi wa sallam), Rasulullaah (Sallallaahu alayhi wa sallam) became very angry and instructed Abdullaah bin Umar (Radiyallaahu anhu) to retract the divorce, to keep his wife for a period of Tuhr, to wait for another menstrual cycle to pass and to issue another divorce only during the second period of Tuhr if he still wanted to. Rasulullaah (Sallallaahu alayhi wa sallam) also told him that the divorce should take place during a Tuhr in which no intercourse has taken place. Rasulullaah (Sallallaahu alayhi wa sallam) then said to him, “This is the Iddah that Allaah has commanded.”

 

It is recorded in Fatawa Al-Hindiyya:

 

إذا طلق الرجل امرأته ثلاثا قبل الدخول بها وقعن عليها

“If a man issues three divorces to his wife before consummation, they will take place”

The above quotes amply prove that the husband has the authority to issue a divorce and his utterance of the words of divorce is effective.

Islam does not advocate divorce in marriages. It advocates harmonious and permanent matrimonial relationships. Marriage is not simply to fulfil ones passions and desires, but also binds the couple into mutual rights, as stated by you. Islam has provided counselling and guidance for couples in all aspects of marriage to avoid dispute. If a dispute does occur, efforts are made to reconcile. At times, attempts to reconcile fail and there exists no other way out except to terminate the marriage. In such situations, Islam has given the husband authority to issue a divorce. Religions that do not accept the concept of divorce or have accepted the concept but reserve the right of its issuance to a third party have caused great difficulty to couples in complicated situations. Islam is an easy religion and has maintained easiness in all aspects of life. It has given men the right of divorce in complex situations and at the same time warned them of its severity. Rasulullah (Sallallaahu alayhi wa sallam) had stated in an address to men: “Marry and do not divorce as divorce causes the throne of Allah to shake”. At times, men do not issue divorce and cause undue harm to women. In such instances, Islam has afforded women the authority to present their difficulties to a Shari’ah Court which will annul the marriage. This annulment is considered a Faskh of the marriage.

We respond to the verses presented by you:

Firstly, you have interpreted verses of the Quran without providing substantiations from the traditional books of Tafseer. We have not read or heard some of these interpretations. Take heed of the following Hadith of Rasulullah (Sallallaahu alayhi wa sallam):

 

ومن قال في القرآن برأيه فليتبوأ مقعده من النار  قال أبو عيسى هذا حديث حسن

“Whoever interprets the Quran with his own opinion (without taking assistance from the explanation provided by the Ulama etc) should reserve his seat in the fire (of Hell)” (Sunan Al-Tirmidhi #2951, Dar Ihya Al-Turath al-Arabi)

Secondly, regarding verse 4:35, there is a difference between arbitration in marriage and the utterance of divorce. The utterance of divorce will institute a Shar’ee divorce as explained and proven above. The verse you have presented is a completely different discussion and no way proves that the divorce of the husband is ineffective.

 

Thirdly, regarding verse 65:1, although the address is to Rasulullah (Sallallaahu alayhi wa sallam), it is also an address to the believing men, as explained by Imam Qurtubi (Rahimahullah).

(Al-Jami’ Li Ahkam al-Quran, vol, 18, pg 150, Dar ‘alam Al-Kutub)

 

The initial address is to Rasulullah (Sallallaahu alayhi wa sallam). The words following the address are subsequently phrased using plural pronouns. This indicates that the instruction of Talaaq is not directed specifically to Rasulullah (Sallallaahu alayhi wa sallam) but also to the entire Ummah.

(Anwaar al-Bayaan, pg 128)

 

Some Mufassirun are of the view that if the address was specifically for Rasulullah (Sallallaahu alayhi wa sallam), then Allah Ta’ala would have used the word يا أيها الرسول and not يا أيها النبي .  , as He has done in the following verse:

يا أيها الرسول لا يحزنك الذين يسارعون في الكفر

“O Messenger (direct address to Rasulullah Sallallaahu alayhi wa sallam), those who race towards disbelief should not be a cause of grief for you” (5:41)

 

Fourthly, regarding verse 4:59/65, it has no relevance in proving that the divorce of the husband is ineffective. It is a general verse and not specific to the discussion. A general verse cannot be used as substantiation for a specific claim.

 

2. All forms of Riba are Haram. This includes commercial loans that are done as a trade. Although trade is permissible, but that trade that deals with Riba is not permissible. This is the ruling of the Quran, Hadith and is unanimously accepted by the Fuqahaa (Jurists). The prohibition of Riba in the Quran is general and inclusive of all its forms. Allah Ta’ala states in the Quran:

وأحل الله البيع وحرم الربا

“And Allah Ta’ala has permitted trade and prohibited interest” (Al-Baqara)

Ibn Mas’ood (Radiyallaahu anhu) stated:

عن ابن مسعود قال : لعن رسول الله صلى الله عليه و سلم آكل الربا وموكله وشاهده وكاتبه

“Rasulullah (Sallallaahu alayhi wa sallam) cursed the one that accepts interest, gives interest, the witness and writer of an interest transaction” (Tirmidhi)

 

Note:

If you do have any more queries, you may write back.

And Allah knows best

Wassalam u Alaikum

Ml. Talha Desai,
Student Darul Iftaa

Checked and Approved by:

Mufti Ebrahim Desai
Darul Iftaa, Madrassah In’aamiyyah


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