Introduction

Divorce or dissolution of marriage is an important part of married life. According to Islam, the primary control of the right to divorce has been vested in the husband's hands. The wife can only ask for divorce, but cannot divorce on her own. In this case, if a wife wants the right to divorce, the husband must consent to grant her that right. This is only a conditional right, which the husband can grant the wife in writing at the beginning of the marriage or at a later time. As a result, the wife is unable to make the decision of divorce independently and becomes dependent on the husband's mercy for divorce. Only in a few cases can a wife seek divorce of her own will, such as if the husband becomes an apostate (murtad) or goes insane. In this article, we will highlight the restrictions on women's rights in the divorce process, the human rights violations of this custom, and its problems in the light of women's equal rights in modern society. Note that this article is not discussing the Muslim Family Law in force in Bangladesh and Pakistan; the Muslim Family Law is the contribution of the Ayub Khan government. But the truth is that this law of Ayub Khan is a direct violation of Islamic Sharia.

Discrimination in the Right to Divorce: The Religious Context

According to Islamic law, the right to divorce rests unilaterally in the husband's hands. The husband can sever the marriage bond at any time, in any situation, by uttering the word "talaq" three times or by informing in writing. But the wife cannot exercise this right on her own. If the wife wants a divorce, she must go through the "khula" (the process of dissolution of marriage in which the wife applies to the husband for divorce) process. In this, the wife has to return her own property or dower (mahr), which sometimes puts her financial self-sufficiency at risk.

Let us see what is said in Tafsir Ma'ariful Quran, (( Tafsir Ma'ariful Quran, First Volume, Page 650 )) -

Page 650 of Tafsir Ma'ariful-Quran. First Volume
... —its tafsir was narrated by the Messenger (SA) himself :
The owner of the marriage bond is the husband. This hadith has been narrated in the book Daruqutni from Amr ibn Shu'ayb, from his father, and he from his grandfather. And it has also been quoted from Ali (RA) and Ibn Abbas (RA). — (Qurtubi)
From this it is proven that after the marriage is solemnized, the husband is the owner of keeping it valid or breaking it. He alone can give divorce. The opportunity for a woman to give divorce is limited.

This means that the ruling of Islamic Sharia is that the right to divorce belongs only to the husband. The wife has no right to divorce; in some special cases she can ask for divorce. Even there, there are serious problems (( Mishkat al-Masabih (Mishkat), Hadith Academy, Hadith: 3279 )) -

Mishkat al-Masabih (Mishkat)
Chapter: Volume 13: Marriage
Publisher: Hadith Academy
Section: 11. Second subsection - Concerning khul' (khula divorce) and divorce
3279-(6) Narrated from Thawban (RA). He said, the Messenger of Allah (peace be upon him) said: a woman who seeks divorce from her husband without any reason will not even smell the fragrance of Paradise. (Ahmad, Tirmidhi, Abu Dawud, Ibn Majah, Darimi)(1)
(1) Sahih: Abu Dawud 2226, Tirmidhi 1187, Ibn Majah 2500, Darimi 1316, Ahmad 22440, Irwa 2035, Sahih al-Jami' 2706, Sahih at-Targhib 2018.
Hadith grade: Sahih (Authentic)
Explanation:
Explanation: Divorce is the right of the husband, not the wife. If the wife has a valid reason, she will be separated from the husband through khula'. A woman will not seek divorce from her husband without an extreme reason. In some narrations it is also stated that no woman will seek divorce for herself or for someone else.
A woman who seeks divorce from her husband without any reason, the fragrance of Paradise is forbidden for her, meaning entry into Paradise is prohibited. This is a statement of warning and threat. Just as the muhsinun (righteous ones) will smell the fragrance of Paradise at the very first stage, she will not get that fragrance. Allama Qadi 'Iyad said: it may also be that if she enters Paradise, she will be deprived of the fragrance. (Mirqat al-Mafatih)

Now let us look at the law from the book Fiqh-e-Uthman (RA) from the time of the third Caliph Uthman, (( Fiqh-e-Uthman (RA), Dr. Muhammad Rawwas Qal'aji, translation and editing: Muhammad Khalilur Rahman Mumin, Adhunik Prakashani, Page 176 ))

In this context our statement is—divorce is effective upon women, not upon any man. For this reason it is not effective until it is specified. If someone says to his wife—... "I have taken divorce from you."
Or after granting the power of divorce to the wife, he said—... "You are divorced."
Then in the context of these words, divorce will not take place. Again, if a person gives divorce to another man, divorce will still not take place. Because divorce is effective upon women. 27
The incident of the time of Uthman (RA). Muhammad ibn Abdur Rahman ibn Abu Bakr (RA) had entrusted his wife Rumaysa al-Farasiyya with the power of divorce. He said to her—... "You are divorced three times."
In the verdict of this case, Uthman (RA) said— the woman made a mistake by saying this. Because a woman cannot give divorce (rather she can receive divorce). 28

Now let us look at a fatwa (( Fatawa-e-Fiqhul Millat, Volume 6, Page 382 )) -

A wife cannot divorce her husband in any situation
Question: My wife has seen in a dream that she is divorcing me. And besides, for many days she has been under a bad influence (asar); when it overcomes her, she loses her senses. She starts talking nonsense. She keeps saying words of divorce like "I will divorce you". And when it passes, she lies unconscious for a long time. When she regains consciousness, she says, 'No, why would I divorce you? I have two sons, I have a husband, what are you saying?' In this case, will the divorce take place or not?
Answer: In Islamic Sharia, only the husband has been given the power to divorce, not the woman. Therefore, in the mentioned case, whether the woman divorces the husband in a dream or in an awakened state, whether conscious or unconscious, it will not take effect. (17/648/7239)

Islam's Traditional Law: Discrimination Against Women

In the traditional Islamic law of divorce, the wife is completely deprived of the right to divorce. It places unilateral power in the hands of the man, which is an example of major discrimination against women. Because of the husband's power, many wives, even while suffering abuse, cannot free themselves from the marriage bond. If the husband refuses to divorce his wife, the wife is forced to remain bound in the marriage, which can be a cause of her loss of freedom and honor.

From the perspective of women's rights and human rights, such discriminatory law is completely unacceptable. Women should also have the right to divorce equally like men, because marriage is a social bond and it is built on the consent and equal responsibility of two people. But this divorce system of Islam imposes unilateral authority over women, which undermines their own freedom and dignity. Let us see a sample of how Islam destroys a woman's human dignity,

Human Rights Violation: Curtailing Women's Freedom

According to the international human rights charter, every person has the right to freedom, rights and dignity equally. Article 16 of the United Nations Universal Declaration of Human Rights (1948) states, "Men and women have equal rights in entering into marriage and in dissolution." The main purpose of this declaration is—to eliminate all kinds of discrimination and establish equal rights for women and men.

But in Islam's traditional divorce system, this right is not applied to women. If a man can divorce his wife at any time, then why cannot a wife exercise the same right? This violates women's fundamental rights and makes her completely dependent on the husband's will during marriage. Even in the khula process, if the husband does not agree to divorce the wife, the wife may be forced to take refuge in court, which is a long and complicated process.

Social and Psychological Impact

This kind of discrimination in the divorce process not only curtails women's legal rights, but also deeply affects their mental and social lives. Many women suffer unspeakable mental anguish and neglect because of this one-sided legal system. Because the power of divorce lies in the husband's hands, women fail to protect their rights and are often forced to remain bound in marriage even while suffering persecution, abuse and mental torture.

In this situation, questions arise in society about the equal rights of men and women. When a husband can sever the marriage bond whenever he wants, while the wife has to complete a process through the court to take this decision, then it is proof that women are kept forced in the marriage bond and their will is not respected. Such discriminatory law extremely undermines women's personality, dignity and self-respect.

Women's Rights and Freedom in Modern Society

In modern society, women are participating equally with men in various fields. In education, employment, leadership and social activities, women are playing roles as important as men. But in Islam's traditional divorce system, women's equal rights and freedom are ignored, which clashes with the principles and values of modern society. Curtailing women's freedom, keeping her subordinate to a man, and disregarding her rights is a kind of social discrimination and oppression.

In modern society, the position of women is now equal to men. Women are educated, skilled in the workplace and self-reliant. Then why should she be kept in a lower position than men in the matter of dissolution of marriage? To fight against such discrimination of women, a legal and social change is needed. Women should have the right to divorce just like the husband, and the dissolution of marriage should be determined equally on the basis of their will. Realizing these real problems, the Ayub Khan government added the right of wives to give divorce in the Muslim Family Law. In order to reconcile Islamic Sharia and Muslim law, it is now clearly written in the nikahnama whether the husband has delegated the power of divorce to the wife.

Conclusion

The divorce system in Islamic Sharia law violates women's fundamental rights and human rights. If a husband can divorce at any time, then why cannot a wife get the same right? This is a discriminatory law that curtails women's freedom and keeps them in a lower position than men. Therefore, social and legal change is needed to eliminate this discrimination in Islam's traditional divorce system. Women should also equally receive the right to divorce, which will ensure their freedom, dignity and equal rights. Instead of binding modern society in religious discipline, establishing women's true rights should be the main goal of modern society.