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Applicability Of Divorce Given In The Absence Of Hakam (Arbitrator)
If a person “abc” utters words of separation to person “xyz” Without making hakkam / arbitrator.. Then will it be counted ?? as hakkam / arbitrator is the first step in Quran without which a person “abc” Cannot proceed to next level.
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7 Replies
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Applicability Of Divorce Given In The Absence Of Hakam (Arbitrator)
updated 1 year, 11 months ago
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7
Replies
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There is no such restriction in the Quran for pronouncing divorce. Men are addressed while telling them the law of divorce independent of Hakam, see Sura Talaq verse 1 and surah Baqarah 229 and 230. Hakam are suggested to be appointed to solve the dispute before the divorce. if the problem is not solved, it is the authority of husband to pronounce divorce.
Not only divorce but in the matters of ilaa and Zihar, men are addressed and there is no mention of Hakam. Quran says if they intend to divorce through ilaa, it will be a divorce (Quran 2:226-227)
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In your above note you have written that
“Hakam are suggested to be appointed to solve the dispute before the seperation. if the problem is not solved, it is the authority of husband to pronounce the word of seperation “
Hence the question arises is that..so if “abc” And “xyz” Have a dispute and “xyz” Wants to do process of hakkam as “xyz” thinks that hakkam can solve the dispite and even “abc” Agrees for hakkam, but then suddenly after sometime “abc” utters words of separation to person “xyz” in front of 2 random witness ( witnesses are not hakkam as hakkam were not made at all) , Then will it be counted ? ..
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Since Hakam has nothing to do with the effectiveness of divorce uttered by the Husband, so divorce uttered by the husband will be counted.
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Whether or not a hakam is appointed has no bearing on if the divorce is counted or not. There could be other reasons why such a divorce did or did not take place. If this is not a hypothetical situation then I advise you to consult a scholar privately and explain them the entire situation in detail before reaching any conclusions.
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Thanks for your answers . Actually according to this video
In this video in the ending part ( last 2 minutes) Ghamidi Saahab says that seperation without making Hakkam is ” Khilaaf varzi ” Of law of Quran and he says that – iss se seperation hota nahi hai balki karvaya jaa sakta hai..
Hence that was the reason why this question was put up in this forum
Thanks
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That’s correct. In an ideal situation a arbitrator should be appointed. However if one is not then a divorce can still take place.
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The appointment of Arbitrators is not an integral part of Divorce Procedure in Islamic Sharia. It is a last ditch effort recommended to save the marriage before divorce. It doesn’t become a part of “Procedure of Divorce”, rather it is a course of Action that can be pursued before giving of Divorce. That is the very reason Ghamidi Sahab has himself categorized appointment of arbitrators in “Before Divorce” section in his book Meezan:
Following steps constitute Procedure of Divorce as per Quran:
1) Divorce should be given keeping in consideration the iddat (waiting period). It is necessary that divorce be given after a lady has completed her menstrual cycle in that period of cleanliness in which the husband did not have any sexual intercourse with his wife.
2) Until the iddat period expires, the husband has the right to take back his wife.
3) If the husband does not take back his wife within the iddat period, then once this period expires the relationship of wedlock will cease to exist.
4) If a husband revokes his decision within the iddat, the lady will continue to remain his wife, but a person can only twice exercise this right of divorcing his wife in the iddat and then revoking the decision in his marriage with a lady.
5) Whether the husband decides to divorce his wife or to take her back, in both cases the Quran directs him to call in two Muslim witnesses on his decision.
Ghamidi Sahab writes regarding the above five points on Procedure of Divorce:
…”The above paragraphs explain the correct way of divorce. If a person divorces his wife according to this prescribed way or takes her back during the iddat period, then his decisions shall stand legally implemented. However, if divorce is given in violation of the prescribed way, then this is a legal case that would require a court ruling“…
Procedure of Divorce:
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In the above video shared by you, it appears that he too was pointing towards violation of calling in two witnesses which consitutes a Procedure of Divorce and most probably, failure in the appointment of arbitrator was a slip of tongue while mentioning this point. Whatever might be the reason for that, but this is not his viewpoint as per his writings.
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