To say or not to say.

You have heard the ominous words somewhere, "Talaq, Talaq, Talaq". Better to hear them in a Bollywood film than God forbid in real life. Unfortunately, our society is not quite behind the west in divorce rates primarily due to blowing petty issues out of all proportions. As a lawyer I have heard them all from, "she doesn't know how to fry an omelette" to "too much star plus". From drunkard husbands coming home to beat their obedient wives to illicit relationships that put your imagination to shame.

Discord is part of life and so it is part of any marriage. However, illiteracy along with superstition and a cold snare of custom has broken the best of bonds. What people fail to understand is that sometimes the worst reconciliation is better than the best divorce.

Being unaware of what Islamic Divorce is, people, especially women fall prey to all kinds of misconceptions. A comprehensive review of various aspects of divorce can help people understand what divorce actually is.

Islam has taken all possible measures to make marriage a blissful and lasting relationship. Marriage in Islam is a civil contract (Nikah) between a man and a woman to live together as husband and wife. It confers mutual rights and duties upon the parties.

The Quran and the holy Prophet (Peace be upon him) have stressed that both partners should act kindly and fairly with each other. However, for all married couples to have disagreements now and then is quite natural. In case of discord a procedure is laid down to facilitate the parties. This arbitration procedure and the steps before the actual termination of marriage are described below succinctly by a Jurist:

1. The two parties must try to settle their differences on their own.
2. If they fail, two arbitrators, one from the husband's relatives, and one from the wife's relatives, must be appointed to try to make peace and to settle their differences.
3. If this attempt also fails, then the husband or the wife may seek a divorce.
4. In case divorce is served, a reconciliation time of three months is available (except if the parties have divorced each other for the third time). The two parties can reconsider their views and reunite in this waiting time.
5. However, if the above time limit expires and no reconciliation occurs, then the divorce becomes effective and marriage is terminated.

A Muslim is permitted to have recourse to divorce, only if there is ample justification for such an extreme measure. To curtail reckless use without reason, a tradition of the holy Prophet says that among all permitted things, God dislikes divorce the most. In the absence of a genuine reason, no Muslim can justify a divorce in the eyes of either religion or law. One has to look no further than Islam to understand the complexities and intricacies of divorce. Only if people are aware of their rights, they will not run into complex divorce feuds and litigation.

Islam assumes that a normal Muslim will act responsibly and conscientiously while exercising divorce. A substantial dower (Mahr) at the marriage settlement will check any imprudence on the husband for divorce. In addition, any lawful condition can be agreed to on the eve of marriage as a safeguard against an unwise decision; for example, that the marriage can be dissolved only by mutual consent of both parties. In Pakistan, this question in the marriage contract (Nikah nama) is usually crossed out or deliberately ignored.

The holy Prophet (P.B.U.H) allowed a woman to get divorce from her husband on the ground that she intensely disliked the husband's ugliness, although the husband had not wronged her in any way. It is apparent that for divorce to be allowed, the genuineness and magnitude of the aversion is more important than the actual reason as perceptions of contentment and marital happiness vary between individuals of different temperaments, backgrounds, cultures and social status. In Islam, the husband has an absolute right of divorce and no consent is required from the wife. In a similar sense, Islam also allows the wife to seek divorce. However, the grounds to seek divorce by a wife vary from the Hanafi School to the more liberal Maliki school of Sunni thought.

In the Family Courts in Pakistan, reconciliation by arbitration is attempted during the court proceedings. The wife is entitled to seek divorce from her side (Khula) in which she has to forgo her dower amount (consideration) or by dissolution of the marriage through a judicial order (Faskh). The parties may also divorce each other by mutual aversion and consent (Mubarat).

Through reform laws like the Dissolution of Muslim Marriages Act of 1939 and Muslim Family Laws Ordinance 1961 (MFLO) the courts have established some suitable grounds (like mistreatment, desertion, serious illness, etc) and guidelines (like time limits, medical opinion, etc.) to judge whether to allow the wife a divorce. The wife or any third person (like the wife's father) can also be delegated the right of divorce by the husband (tafweez), at the time of marriage or later, on conditions which are not against Islamic principles.

Under MFLO limited reforms have also been introduced in relation to divorce. Under MFLO a divorcing husband shall, as soon as possible after divorce has been pronounced, in whatever form, give a notice in writing to the chairman of the Union Council. The chairman must then supply a copy of the notice of divorce to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within thirty days of receipt of the notice of divorce, the chairman must constitute an Arbitration Council in order to take steps to bring about reconciliation between the husband and the wife. If and when such attempts to negotiate reconciliation fail, a divorce that is not revoked in the meantime, either expressly or implicitly, takes effect after the expiry of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If, however, the wife is pregnant at the time of the pronouncement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later.

Failure to notify, in the above stated manner, invalidated Divorce until the late 1970s and early 1980s, but introduction of the Zina Ordinance allowed scope for abuse as repudiated wives were left open to charges of Zina if their husbands had not followed the MFLO's notification procedure. Since early 1980s, the practice of the Courts in Pakistan is that they validate a Divorce despite a failure to notify as provided under the MFLO.

The concept of alimony at divorce as seen in the western society is not applicable in Islam. The Holy Quran repeatedly speaks of the post-divorce settlement in terms of fairness and kindness. If the husband initiates divorce then he pays the wife dower compensation and if the wife seeks the divorce then she pays the husband compensation but the actual amount is based upon the circumstances found by the court.

Rest assured that divorce is still a complex process and it is advisable to spell out rights at the time of marriage to avoid dissension later. Last but not the least, always remember divorce can be one of the most financially traumatic things you can go through. It is a well known adage that money spent on getting mad or getting even is money wasted. It is better to find compromise and reconciliation. As Robert Anderson so aptly said once, "In every marriage more than a week old, there are grounds for divorce. The trick is to find, and continue to find, grounds for marriage."