Sunday, September 2, 2012

Qur'anic way of settling Marital disputes-by Mufti Shafi



Qur'anic injunctions about settling Marital disputes
(From Ma'arif al Quran by Mufti Shafi)

وَإِنۡ خِفۡتُمۡ شِقَاقَ بَيۡنِہِمَا فَٱبۡعَثُواْ حَكَمً۬ا مِّنۡ أَهۡلِهِۦ وَحَكَمً۬ا مِّنۡ أَهۡلِهَآ إِن يُرِيدَآ إِصۡلَـٰحً۬ا يُوَفِّقِ ٱللَّهُ بَيۡنَہُمَآ‌ۗ إِنَّ ٱللَّهَ كَانَ عَلِيمًا خَبِيرً۬ا (٣٥)
Translation:
And if you fear a split between them, send one arbitrator from his people and one from her people. If they desire to set things right, Allah shall bring about harmony between them. Surely, Allah is All-Knowing, All-Aware. [Surah Nisaa-35]

How to correct an uncooperative wife
'The text turns to women who are either straight disobedient to their husbands or fail to cooperate with them in running family affairs in the recognized manner. The Holy Qur'an gives men three methods of correcting their behaviour. These are to be followed in the order وَٱلَّـٰتِى تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَٱهۡجُرُوهُنَّ فِى ٱلۡمَضَاجِعِ وَٱضۡرِبُوهُنَّ‌ It means: If you fear or face disobedience from women, the first step towards their correction is that you should talk it over with them nicely and softly. Still, if they remain adamant and do not change their attitude by conciliatory counsel alone, the next step is not to share the same bed with them, so that they may realize the displeasure of the husband as expressed through this symbolic separation, and may feel sorry for their conduct. The Holy Qur'an uses the words فِى ٱلۡمَضَاجِعِ at this point, meaning 'in beds'. It is from here that Muslim jurists have deduced that this staying apart should be limited to 'beds' and not to the 'house' itself. In other words, the woman should not be left alone in the house, something which is bound to hurt her feeling much more and which makes the possibility of further straining of relations far stronger.
A Companion reports:
I said: '0 Messenger of Allah, what right do our wives have on us?' He said: 'That you feed them when you eat; provide them with apparels to wear when you have these for yourselves; and do not hit the face; and do not say abuses to her; and do not leave them apart unless it be within the house. (Mishkat)
If this gentle admonition fails to produce any effect, some corrective form of a little 'beating' has also been allowed as a last resort, of course, in a manner that it does not affect the body, nor goes to the undesirable limits of hurt or injury to the skin or bones. As for slapping or hitting on the face, it is absolutely forbidden.
The first two methods of admonition, that is seeking to convince and leaving apart in beds, are more or less an exercise in nobility against arrogant lack of compromise. Prophets and their righteous followers have spoken in favour of it. That they practiced what they preached is also a proved fact. But, this third method of admonition, that is, beating, has been permitted as a forced option in a particular mode. Right along with this option given to men, it appears in hadith وَلَن یَّضرب خَیَارِکُم which means that 'good men among you will never beat women.' Thus, such an action is nowhere reported from the blessed prophets of Allah.
According to a narration from the daughter of Sayyidna Abu Bakr (RA) as reported by Ibn Sa'd and al-Baihaqi, the beating of women was absolutely prohibited in the early days, but this resulted in their becoming much too oppressive, following which the permission was reinstated.
The present verse relates to one such event, which can be termed as the background of its revelation. Sayyidna Zayd ibn Zuhayr (RA)  had married his daughter, Sayyidah Habibah (RA)  to Sayyidna Sa'd ibn Rabi (RA). During a dispute over something, the husband slapped her. Sayyidah Habibah (RA) complained to her father. He took her to the Holy Prophet (Sallaho Alaihe Wassallam) . He declared that Habibah has the right to hit Sa'd as hard as he did. Hearing this decision of their master, they started back home to take their revenge upon Sa'd. Thereupon, this verse was revealed in which the beating of women as the very last option has been permitted, and no retaliation or revenge against men was allowed. So, soon after the revelation of this verse, the Holy Prophet (Sallaho Alaihe Wassallam) called both of them back and asked them to abide by the injunction from Allah Almighty, and abrogated his first directive permitting the seeking of revenge.
Towards the end of the verse, it is said: 'Then, if they obey you, do not seek a way against them'. It means that should the women mend themselves after that triple-stepped approach, men should forgive and forgo the past events and avoid looking for ways to find fault with them on flimsy issues as the power of Allah controls everything.
The principle of family life given in the Quran is that, despite the rights of men and women being equal in almost everything, there is, for men, a certain precedence laced with authority vis-a-vis women, and they operate thereunder.
Under this basic principle, there came to be two classes of women in practical life. One of them stood by this basic principle, abided by their covenant, accepted the functional authority of man and obeyed him in deference to the wise Divine arrangement. Then there was the other class of women which failed to live by this principle in its fullness. As for the first-mentioned class, it provides for itself a perfect guarantee of family peace and well-being. It needs no correction of course in its life.
Such correction is, however, very much in order for the second class of women. For this purpose, the second sentence of the verse offers a compact system which would help correct things within the four walls of the house and the tussle between the husband and the wife would be diffused and settled for good right there without any third party having to intercede in between them. So, men have been told: If you sense some lack of cooperation from women, the first thing you should do is to talk to them explaining things in a way which helps change their mind and attitude. If that works, the issue is resolved right there. The woman is rescued from a permanent sin and the man from an aching heart, and the two of them from some everstinging anguish. Now, if this person-to-person talk fails to bring results, the second stage is to sleep on a separate bed as an indicator of your displeasure, and may be as a device to bring about a change of attitude through the sending of a warning signal. This is ordinary admonition but good enough for a warning. If the woman gets the message, the dispute ends right there. But, if she ignores even this soft measure of correction and persists with her crooked ways, there is the third step in which token beating is also permitted, the extreme limit of which is that it should produce no effect on the body. The use of this method of admonition (beating of woman) was not liked by the Holy Prophet (Sallaho Alaihe Wassallam) who, quite on the contrary, said that gentlemen would not do that. However, if this token reprimand as the last resort does result in normalcy of relations, the main objective stands achieved anyway. That men have been given three options to correct women in this verse is coupled with the words فَإِنۡ أَطَعۡنَڪُمۡ فَلَا تَبۡغُواْ عَلَيۡہِنَّ سَبِيلاً‌ۗ said at the end of it. It means that, should the women start listening to you after these three-step ways of correction, do not go for hairsplitting and start levelling more accusations. The better course is to forgo, realizing that the measure of precedence over women given to you by Allah Almighty is not absolute, for the precedence of Allah Almighty hangs heavy over you. If you exceed the limits set for you, it will be you who is going to take the punishment.
The role of the family arbitrator in disputes
The arrangement described so far was to help tempers cool off within the privacy of the house keeping it restricted to the married couple. But, there are times when the family feud becomes long drawn. It may be because the woman is temperamentally obstinate and contumacious, or it may be the fault of the man who may have been unjustly oppressive. Whatever it actually is, one thing is certain that the unfortunate tussle will not remain restricted within the four walls of the house; it will .definitely spread out. Then, as usual, supporters of one party will go about maligning the others with all sort of accusations. This will cause tempers of parties to rise and what started as the disagreement of two individuals will turn into a confrontation between two families.
It is to block the road to this terrible discord that, in the second verse, the Holy Qur'an addresses government authorities of the time, the guardians of the parties concerned and their supporters, and the general body of Muslims, and suggests a decent method which would cool down tempers, shut out avenues of accusations and make a compromise between the affected parties possible, so that the dispute which, no doubt, could not remain restricted to the couple's home, would at least be settled within their families and not go to a court of law to become public knowledge.
This particular method requires that concerned officials of the government or the guardians of the parties or a body of Muslims which has the necessary integrity, influence and authority should take charge and appoint two arbitrators to hep bring about a compromise between the parties concerned - taking one arbitrator from the man's family and the other from that of the woman. At both these places, the Holy Qur'an has used the word, "haham" for these appointees whereby it pin-points the necessary qualifications of these two persons, that is, they should have the capability to decide the dispute between the two' parties; and this capability, as obvious, will be found in a person who is both knowledgeable and trustworthy.
In short, the rule that emerges from here is that a "baham" or arbitrator from the man's family and another from that of the woman should be appointed and sent to the husband and wife. Now, as for what they are going to do when they meet them and as to what rights they have in this matter - this the Holy Qur'an does not determine. However, it does add a remark at the end إِن يُرِيدَآ إِصۡلَـٰحً۬ا يُوَفِّقِ ٱللَّهُ بَيۡنَہُمَآ which means: If these two arbitrators desire to set things right, Allah Almighty will help them bring about harmony between the husband and the wife. So, two things emerge from this sentence:
1)      If both arbitrators have good intentions and genuinely wish to bring about peace between the dissenting couple, there will be unseen help from Allah Almighty and they shall succeed in their mission, and it will be through their efforts that Allah Almighty will create love and harmony in the hearts of the couple. This leads to the conclusion that, in cases where mutual rapport is not restored, it may be because one of the arbitrators lacks perfect sincerity while pursuing the goal of peace-making.
2)      The purpose of appointing these two arbitrators, as also understood from this sentence, is to bring about peace and amity between the husband and the wife and does not include anything beyond that. However, it would be something else if the .parties affected by the mutual dispute agree to appoint these two arbitrators as their representatives and their attorneys in all respects in which case they would be admitting that any decision given by the two arbitrators jointly will be acceptable to and binding on both of them. Under this situation, the two arbitrators shall have absolute authority to decide their case. If both agree on divorce as the solution, they can effect a divorce. If they both decide that the women should be released under khul', a form of dissolution of marriage, the khul' shall come into effect, and their decision shall be binding on the parties. From among the pious elders, this is the position held by Hasan al-Basri' and Imarn Abu Hanifah. (Ruh alMa'ani, etc.)
Cited in this connection is an incident which occurred in the presence of Sayyidna 'Ali (RA). There too, one finds the proof that the two arbitrators referred to above do not have any intrinsic right other than that of making peace between the husband and wife - unless, of course, the parties concerned authorize them fully to decide as they deem fit. This incident, as narrated by 'Ubaidah al-Salmani, appears in the Sunnan of al-Baihaqi and is being reported below.
A man and a woman came to Sayyidna Ali (RA)  along with groups of people accompanying both. Sayyidna Ali (RA)  asked them to appoint an arbitrator, one from the man's family and another from the woman's. When arbitrators were appointed, he addressed them both: 'Do you know your responsibility? Do you know what you have to do? Hear me. If both of you agree to keep the husband and wife together and make peace between them, then do it. And if you come to the conclusion that matters cannot be set right between them or that they will not stay right later on, and both of you concur with the option that a separation between them is the expedient course, then do it.' When the woman heard this, she said: 'I accept this. Let these two arbitrators act in accordance with Divine law and I shall accept any decision they give whether it meets my wishes or goes against.' But, the husband said: 'Separation and divorce are things I am not going to accept under any condition. However, I authorize the arbitrators to ask me to pay whatever financial penalty they impose and let my wife return to me in peace.' Sayyidna Ali (RA) said: 'No. You too should authorize the arbitrators in -the same manner as was done by the woman.'
From this incident, some Mujtahid Imams deduced the principle that these arbitrators have an inherent authority to divorce as was done by Sayyidna Ali (RA) who asked the parties concerned to do that, while the great Imam Abu Hanifah and Hasan al-Basri have taken the position that, had it been an inherent power of the arbitrators to divorce there was no need for Sayydina 'All to obtain the authorization from the parties concerned. Here, the very effort to seek the agreement of the parties is a proof of the fact that these arbitrators do not have such an inherent power. Nevertheless, they do become authorized if the husband and wife delegate the necessary authority to them.
This teaching of the Holy Qur'an opens a new outlet of resolving mutual disputes, something which saves people from the botheration of going to courts and government officials and gives them an opportunity to iron out a good deal of their disputes and claims through family-oriented arbitration.
Arbitration in other disputes as well
Muslim jurists say that the appointment of two arbitrators to make peace between two parties in dispute, is not limited to the disputes between a husband and a wife. It can be profitably used in other areas of discord. In fact, it should be so used, specially when the parties involved are related to each other, because a court decision is a short-term solution of the basic problem. What happens after is that such decisions leave the germs of hatred and hostility in the hearts of those affected and which reappear after a passage of time in forms that are much too unpleasant. Sayyidna 'Umar, may Allah be pleased with him, had promulgated an order for his judges which said:
"Send disputes between relatives back to them so that they make peace with the help of each other, as a court decision breeds heart burnings and hostility.
Although this Faruqi directive concerns disputes rising in between relatives, yet, the reason given in this directive (that is, court decisions tend to create hatred and hostility in hearts) is a reason which covers not only the relatives but non-relatives as well. Wisdom lies in saving all Muslims from mutual hatred and hostility. Therefore, the Muslim jurists are of the view that it is appropriate for officials and judges that they, before hearing the cases formally, should make an. effort to find a way out whereby the disputing parties get together and agree on mutual conciliation. (See al-Tarablusi, Mu'in al-hukkam p214 and also Ibn al-Shahnah, Lisan al-hukkam),
Though brief, yet these verses present a comprehensive system of family life which, if put into practice, could help eliminate a lot of disputes, hatreds and hostilities from the world. Men and women would live in peace among their families, secure against all those local dissensions which turn into all sorts of tribal, racial, national, even International feuds.
In the end, let us recapitulate the great Qur'anic mechanism of how to quash family feuds -a virtual gift to the whole world:
1)      Resolve family disputes within the house using one method after the other.
2)      When this is not possible, government officials or the kinsfolk make peace between the disputing parties through two arbitrators, so that, the dispute does not go out of the larger family circle, even if it goes out of the house itself.
3)      When this too is not possible and the matter goes to the court finally, it is the duty of the judicial authority to investigate into the case background of both parties and come up with a decision which is just.
It may be noted that by saying إِنَّ ٱللَّهَ كَانَ عَلِيمًا خَبِيرً۬ا  (Surely, Allah is All-Knowing, All-Aware) warning has been given to the two arbitrators as well to the effect that they should keep in mind that no injustice or crookedness from them will go unnoticed for they shall be appearing before the Being who knows all and is aware of everything

1 comment:

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