Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Just wanted to clarify,Islam says that there is always a Hikmah behind every thing in Islam. A guy comes proposes & gets married. For Nikah u have conditions.There should be 2 witnesses.The guardian consent should be taken. Now when the time to divorce , nothing of the above required.. can u explain whats the hikmah behind this ? if a person is taking women/Men as a life partner they both have to say yes at point of Nikah then y at divorce Men can say talaq & thats also without any witnesses or anyother ritual? 

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

Answer:

Wisdom behind declaration of divorce

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

Indeed, every single law and command in Islam is based on the Perfect and Absolute Knowledge and Wisdom of the Lord Who Created; and one would be hard-pressed to find a guidance, or law, or command in Islam which is not overflowing with wisdom and justice.

The reason and wisdom behind the prescription of the availability of witnesses in Islam when one enters into a financial contract, or in marriage, or when one accuses another of a crime, etc. is to mitigate the risk of the other party in the contract if one of the participants denies the contract or transaction or crime ever took place!

For example, if a couple were to marry without the presence of witnesses, the man would very well fulfill his desire with the woman on the first night of marriage and claim the very next day that neither does he know the woman, nor was there any marriage contract that took place between them! But if there were witnesses present to the marriage contract, the man would not dare to disown the contract.

Similarly, the husband is to bear the complete financial cost of the wedding and also pay the determined ‘mehr’ to his wife at the time of nikaah….after that substantial financial costs borne by the husband and after accepting the ‘mehr’, the wife were to simply declare on the very first night of marriage that neither does she know the man, nor was there any marriage that took place between them….without the presence of witnesses to the marriage contract, the husband would be hard pressed to prove that a marriage took place between the two!

Thus the availability of witnesses is absolutely essential and obligatory when one enters into a marriage contract, so that the rights of both parties are protected.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verse 237:

237 And if ye divorce them before consummation but after the fixation of a dower for them then the half of the dower (is due to them) unless they remit it. Or (the man's half) is remitted by him in whose hands is the marriage tie; and the remission (of the man's half) is the nearest to righteousness. And do not forget liberality between yourselves. For Allah sees well all that ye do.

Allah Subhanah has placed the ‘marriage ties’ in the hands of the husband in a marriage; and although there is no harm if one were to take witnesses at the time of divorce, the presence of witnesses is not obligatory when a divorce is declared by the husband in Islam. The reason behind this allowance is because if the man pronounces a divorce upon his wife, and the wife claims in court that the husband did not pronounce a divorce declaration upon her, the husband has the option of simply pronouncing another divorce upon his wife in court….and a divorce between the couple will be duely established.

Alternatively if the wife seeks an end to the marriage and goes to court and falsely claims that her husband has pronounced a divorce upon her when he hasn’t, the husband has the right to revoke the divorce in Shariah.

Thus in both situations, the need to call witnesses would simply not arise in cases of divorce.

The situation is very similar to the process when one seeks entry into a college, or the army, or even a job….where the understanding between the two parties at the outset is that at the time of joining the consent of both parties (the college and the student; the army and the soldier; the employer and the employee) is needed….but if one party, for any reason wishes to terminate or opt out of the college, or the army, or the job…one simply needs to declare that one no longer wishes to remain with them and that would suffice to terminate their union.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan