Friday, 20 July 2018

DISSOLUTION OF MARRIAGE AND CUSTODY OF CHILDREN UNDER ISLAMIC LAW (PART 2)

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Part 1 of this article, (Insert Link) examines dissolution of marriage generally under Islamic law and then proceeds to examine the some of the various modes of dissolving Islamic marriages.  This article examines the remaining modes of dissolution and custody issues under Islamic law.
 
DISSOLUTION OF MARRIAGE THROUGH ZIHAR
All forms of marriages, whether statutory, customary or Islamic places some restrictions on persons that a person can get married to, usually the restriction is based on some kind of blood relationship. So generally, there are laws restricting a person from marrying a person with whom he or she shares a bloodline. This is important to bear in mind in order to appreciate dissolution of marriage through Zihar.

A man can dissolve his marriage through Zihar by comparing his wife to a woman who is unlawful for him to marry such as his mother or his sister. He could do this by comparing any body part of his wife to that of his sister or his mother, or by merely saying to his wife, ‘you are my mother’. Where the man chooses to denounce his statement, he can do so by making reparation known as Kaffarah by doing any of the following in the stated order: set a slave free, fast for two months or feed sixty poor men. If he has no slaves to set free, then he would be required to fast and if for some tangible reason he is unable to fast, then he would be required to feed sixty poor men.

This mode of dissolution is available to only the man.

DISSOLUTION OF MARRIAGE THROUGH TALAAQ-I-TAFWEEZ

Talaaq-i-tafweez refers to delegated divorce. In this type of divorce, the husband delegates his power of pronouncing divorce (talaq) to his wife or to any other person.  This right can be delegated to her orally or it can be in writing. This delegation of power to the wife to divorce herself can be given during the marriage ceremony or after the marriage. Once this right is delegated to the woman, it cannot be revoked and it does not affect the husband’s right to divorce his wife.

DISSOLUTION OF MARRIAGE THROUGH LI’AN
When a husband accuses his wife of adultery and cannot prove his allegation of adultery with four witnesses as is required under Islamic law, he would be required to swear four times stating that his accusation is true and then a fifth time invoking the wrath of God upon himself if he is lying. If the wife asserts that his accusation is false, she is required to also swear asserting her innocence and then the fifth oath should be inviting the wrath of God on herself if her husband is telling the truth. When she swears to an oath of innocence, she can be divorced from him on this ground.  
DISSOLUTION OF MARRIAGE THROUGH THE PROCESS OF KHUL’U
Dissolution of marriage through khul’u can be done in two ways:
The first is when both the husband and the wife reach an agreement between themselves to end their marriage. This is only achievable when the husband and wife mutually agree to end the marriage.  The marriage can also be dissolved through this means if the wife is the person who is desirous of dissolving the marriage and her husband agrees to the dissolution upon certain terms reached by the two of them. This is an extra-judicial means of dissolving the marriage.

The second way that a marriage can be ended through khul’u is when it is only the wife who wants to break free from the marriage and the husband refuses to consent to the dissolution of the marriage, then she might have to apply to a Sharia Court and seek the dissolution of her marriage.

A woman, who chooses to dissolve her marriage through khul’u judicially, is not required to state any reason for the dissolution of the marriage. All that matters is that the woman is discontent with the marriage, such that harmonious co-existence between her and her husband is no longer practicable and they shall transgress the bounds of Allah, then the marriage would be dissolved.

The wife has to refund the bride price paid by the man when he married her, it is in this way that she secures her release from the marriage. The amount to be paid may be fixed by the court or where her husband consents to the dissolution, the amount stated by him.

CUSTODY OF CHILDREN UNDER ISLAMIC LAW
Islamic Law recognises the woman's right to custody of the children of the marriage; the woman is usually given preference over the man in matters of custody. 

The woman has custody to the children of the marriage provided she has the physical and mental capacity to care for the children. Where for some reason she is incapable of having custody, then custody would be granted to any of her female relatives in order of priority. 

The order of priority for the grant of custody is as follows:
1. The mother of the child;
2. The Child's maternal Grandmother;
3. The child's Maternal Aunt;
4. The child's Paternal Grandmother;
5. The child's father;
6. The child's sister;
7. The child's paternal aunt;
8. The father's maternal Aunt.

A mother has custody of her female child until the child gets married and for the male child until he attains puberty.
The husband is required to maintain his children irrespective of who has custody of them.

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