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SMS Divorce Does Not Conform to the Quranic Principle of Ihsan (Kindness)
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SMS Divorce Does Not Conform to the Quranic Principle of Ihsan (Kindness)

Sisters in Islam is concerned over the recent Syariah Court ruling upholding the validity of divorce through SMS, and its possible serious implications and consequences upon marriage relationships and the basis of the family. The Qur'an in Surah al-Baqarah 2:229, states that "the parties should either hold together on equitable terms (ma'ruf) or separate with kindness, in a goodly manner (ihsan)"

It should be obvious that announcing divorce through SMS is definitely not in an ihsan manner. If an employer cannot dismiss an employee through SMS, how could the authorities allow a marriage which involves a relationship of such intimacy be dissolved in such a callous manner?

Even in classical Islamic jurisprudence, there are differences of opinion as to the proper manner of pronouncing a valid divorce. Although the majority of the fiqh ulama' (juristic scholars) were of the view that divorce may be pronounced without the presence of witnesses, there were also some ulama' who insist on the presence of just and proper witnesses based upon the opinion of the sahaba (the Prophet's Companions) and the majority of tabi'in (Successors of the Companions).

The Syariah courts in Malaysia, by allowing the validity of divorce pronounced through SMS, appear to be further extending and expanding the opinion of those ulama' who held that a pronouncement of divorce is valid even without the presence of witnesses. On the other hand, in Indonesia, the opinion of those ulama' who held that a valid divorce may only be pronounced in the presence of just witnesses has been adapted and extended in their Kompilasi Hukum Islam by ruling that a valid divorce may only take place before the court. This ruling is made on the principle of maslahah mursalah (consideration of public interests), by reasoning that only judges are eligible to be the just and proper witnesses to a valid divorce.

Because divorce is regarded as the unilateral right of the husband, the wife often faces great difficulties, and has to go through expensive and cumbersome legal proceses when she applies for divorce in cases where the husband refuses his consent to her application.

Even before the decision on the validity of SMS divorce, a common problem on the issue of divorce is the ease with which a man may divorce his wife, and the difficulties often encountered by a woman who seeks a divorce. For instance, in Aida Melly's case, it took her over seven years to obtain a divorce, even though the ta'liq provision under which she applied for divorce stipulated that she would be entitled to a divorce if her husband were to neglect her maintenance for a period of four months.

Due to the difficult and lengthy proceedings in cases where the husband contest the wife's application, there are many cases where the wife would renounce her financial rights simply in order to obtain the husband's consent, even though she has valid grounds to obtain a divorce against him. In fact, the courts should be more sensitive to such situations, and should ensure that the divorce settlement is not unjust to the wife and children.

If marriage is accepted as a contract, then it should be recognised that both parties have equal rights of divorce. A unilateral right of divorce goes against the concept of a contract since the mutual agreement of both parties is required for the formation of that contract. In some of the classical Islamic jurisprudence, there is also the concept of divorce by mutual consent (mubara'at).

This concept should be promoted as the most "goodly manner" of divorce, i.e. a fair and amicable divorce agreed to by both parties. In Tunisia, for example, the Muslim Personal Law provides for divorce in three situations - by mutual consent; by application of one of the parties if he/she has a valid ground of complaint; or by application of one of the parties through the payment of compensation to the other party. If at all such speedy procedures as divorce by SMS is to be allowed, it should only be applicable to cases of divorce by mutual consent, i.e. when both husband and wife desire the divorce.

The basis for granting equal say to both husband and wife in a divorce process may be found in Surah an-Nisa' 4 : 35 which provides that: "If you fear a breach between them twain (a married couple), appoint an arbiter (hakam) from among his people and an arbiter from among her people …". Unfortunately, in our implementation of the provision regarding hakam, it has brought further difficulties on women, when wives who have clear and valid grounds for obtaining divorce are compelled to go through lengthy conciliation and arbitration proceedings, while husbands who divorce their wives without any reason or for the most trivial of excuses need not go through any such proceedings.

Islamic fiqh or juristic opinions developed over the centuries, and it is quite proper that changing circumstances and modern developments, including that of science and technology, should be taken into account. However, Sisters in Islam finds it curious that our religious authorities are so ready to accept the use of modern technology when it is to the advantage of the men, and are resistant to the application of modern science and technology when it can benefit women and children, e.g. the use of DNA testing to determine paternity.

Sisters in Islam

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