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Course of study: LLB - Islamic Law - LA3028

Extract title: Divorce

Title author: D. El Alami and D. Hinchcliffe

Publication year, Volume, Issue: 1996

Page extent: 22-32

Source title: Islamic Marriage and Divorce Laws of the Arab World

ISBN: 9041108963
22 Islamic Marriage and Divorce Laws of the Arab World

property which could be used to provide her with maintenance, are arrears a true
debt, extinguishable only by payment or proper release. If maintenance is given
to the wife in advance moreover, then, since maintenance is held to be a gift, it
cannot be recovered by the husband if he divorces his wife or she becomes
disobedient. This is because a gift between one spouse and the other which is
completed by delivery of possession is irrevocable.
The other schools of Sunni law, however, as we have seen, do not regard
maintenance as a gift from the husband to the wife, but as a debt and they
recognise the right of the wife to sue for arrears.

Divorce

Talaq

The most common method by which marriages are dissolved in the Muslim
world is by the husband exercising his right of talaq. Even today, despite the
changing economic pattern, women find their security primarily in marriage and
it is therefore in extreme cases only that they resort to seeking divorce. Divorce
of wives by husbands is, however, still prevalent.
Islamic law grants to the husband the right unilaterally to terminate the
.)
marriage at will without showing cause and without having recourse to a court of
law. The dissolution is effected by unilateral repudiation talaff, all that the Sunni
law requires is that the husband should be adult and sane when he gives
expression to the formula of repudiation, whether orally or in writing. Provided
he pronounces the repudiation with knowledge of what he is doing, the law does !
not require that he should also have had the intention of repudiating his wife.
Thus all the schools of Sunni law, relying on the alleged hadith from the
Prophet, regard a ta/.aq pronounced in jest as effective. The Hariafi school takes
the most extreme view of all, and also accepts as valid a talaq pronounced while
the husband is drunk, or even under duress. None of the Sunni schools regard
the presence of the wife or of witnesses as essential to the validity of the talaq,
although of course witnesses with the quality of 'ada/.ah 27 will be necessary to
prove the ta/.aq if it is disputed.
According to Sunni law, a talaq may either be in accordance with the Sunna
(when it is known as ta/.aq a/.-Sunna) or it may not (in which case it is called
talaq al-bid'a - that is, irregular ta/.aq, or the talaq of innovation).
The Hanafi jurists divide talaq al-Sunna into two categories: ahsan (best) and
hasan (good). A repudiation in the ahsan form takes place when the husband
pronounces a single repudiation during a period of tuhr, that is, wherr the wife is

27
Sane adult male Muslims of the highest moral probity. ".
 The Uncodified Law 23

in the period between two menstruations and when intercourse has not taken
place since the last menstruation.
Immediately on the pronouncement of talaq the wife will enter the idda
period, which will last for three menstrual cycles, or if she is pregnant, until
delivery of the child. If the wife has not yet begun to menstruate, or if she has
reached the menopause, she must observe an idda of three months. Until the
idda is terminated the husband is free to revoke his repudiation and take back his
wife. No particular formality is attached to revocation of talaq and it may be
made expressly by the husband declaring that he has revoked the talaq or implied
by the husband's conduct, such as resuming cohabitation, and even, in the
Hanafi law, by merely kissing or touching his wife. During the idda period the
husband is under a duty to continue to maintain his wife. This is because the
marital relationship still continues and he still exercises control over her for, as we
have seen he has the right to revoke the talaq if he wishes, whether his wife wants
him to do so or not. Also, as the marital tie is not severed until the end of the
idda, should either party die during this period the other spouse will inherit his
or her Qur'anic portion.
If the husband does not exercise his right to talaq the repudiation becomes
irrevocable once the idda period expires - but only ba1in baynuna sughra, that is
"irrevocable of the lesser degree", which means that the partners are free to
remarry each other if they so agree.
/; Talaq in the hasan form is intended to be used by husbands who are
determined to end the marriage completely and finally. In this form the husband
pronounces three talaqs during three succcessive periods of purity. The law
allows a husband to repudiate his wife three times only. Once he has used his
three talaqs his wife is henceforth barred to him and he may not remarry her until
! she has contracted and consummated an intervening marriage and has been
widowed or again divorced. If the talaq is in the hasan form the husband is free
to revoke it until the third talaq is pronounced, if he has a change of heart. But
immediately on the pronouncement of the third talaq the divorce becomes
J irrevocable - ba1in baynuna kubra: that is "irrevocable of the greater degree"
and the partners may only remarry after the wife has contracted an intervening
marriage. During the idda following the third talaq neither party will have
inheritance rights from the other as the marital relationship is ended. However,
in Hanafi law, the husband is still under a duty to maintain his wife because, they
argue, his right of control over her is not yet terminated as she is observing the
idda for his benefit in order to determine whether she is pregnant or not. In the
law of the other three Sunni schools and of the Ithna Ashari sect of the Shi'a,
only pregnant wives are entitled to maintenance in these circumstances.
In Ithna Ashari law only a talaq pronounced in accordance with the Sunna is
valid. The law of this sect regarding talaq is considerably stricter than that of the
Sunnis. In order that the talaq should be effective it must be pronounced orally
/in Arabic in a prescribed formula. Two witnesses, who must be adult, male
" Muslims and of the highest moral probity, must be present.
24 Islamic Marri.age and Divorce Laws of the Arab World

Sunni Islam, on the other hand, regards talaq al-bid)a as effective and valid in
law, but morally reprehensible. Talaqal-bid)a may take several forms but the
most prevalent is the triple repudiation whereby the husband pronounces three
talaqs at one time. Although Sunni Islam regards divorce iri this form as sinful, it
is nevertheless valid in law and, indeed, is the most commonly employed method
of bringing about a dissolution of marriage.
Other forms of talaq al-bid)a are repudiations suspended on a condition.
Such suspended talaqs could be employed as threats by husbands designed to
prevent their wives doing something in the future. For example a husband could
say that his wife would be repudiated if she went to visit her parents or bought a
new hat. The conditions on which the talaq was suspended could also be
something over which neither party had any control, e.g. "If it rains tomorrow
you are repudiated." Such suspended repudiations could also be utilised to the
benefit of the wife, as she could persuade her husband to pronounce a
repudiation which would become operative if he took a second wife. It should be
noted, however, that in such cases, even if the wife had a change of heart and
decided that she would prefer being a co-wife to being divorced, the repudiation
could not be revoked and as soon as the husband married a second wife the first
wife would be repudiated. It is much better for a wife to be given the delegated
power to divorce herself, upon the happening of a specified contingency.
Throughout most of the Muslim world today, reforms have been
promulgated in the law of personal status which provide that a triple talaq
shall take effect only as a single talaq. The effect of these reforms is to make
almost all repudiations except the third revocable and thus to mitigate to a great
extent the effect of talaq pronounced in anger and without due consideration.
Unfortunately to the present day only Tunisia28 has legislated to make divorce
by the husband a judicial matter.
Although the Iraqi Law of Personal Status of 195929 also provides that a man
who wishes to repudiate his wife must commence proceedings in the Shari'a
court with a petition that this be effected and judgment given accordingly, a
proviso was added to the effect that, if the husband cannot take the matter to
court, he must register the repudiation during the idda period, and subsequently
the Court of Appeal in the case of Ali v. Farida, Decision 306 (1965) held that
even failure to register the repudiation during the idda does not render it invalid
per se.

28
Sec Chapter 11. In the non-Arab world, the Iranian Family Protection Act 1967, since
superseded, must still be considered the most radical piece of legislation promulgated by a
Muslim country, for its main effect was to deprive a husband of his unilateral right of taltUJ.
29
Sec Chapter 4 .
 The Uncodifted Law 25

Delegated divorce

In traditional law a husband may delegate his power of repudiation to his wife soV
that she can divorce herself If he gives his wife an option to repudiate herself,
however, she must exercise it within the majlis (the sitting or meeting at which
the option is given), unless the husband specifically grants her an extended
period of time in which to exercise it. A husband may also delegate to his wife
the right to divorce herself upon the happening of a specified event. Once the
stipulated contingency occurs, the wife has an option to exercise her right of
divorce or not as she chooses. In Hanafi law it is not necessary for her to go to
court to exercise her right of repudiation, nor is it necessary for her to pronounce
the repudiation before witnesses - althqugh of course a prudent wife would
provide herself with \tjtnesses, as otherwise it might be impossible for her to
prove that she had actually exercised her right to divorce herself.
The parties themselves are free to decide the conditions upon the occurrence
of which the wife's right will arise. Traditional law does not require that they
should be "reasonable" in the eyes of the court. 30
In traditional doctrine, however, the wife must exercise her right as soon as
she hears of the breach of the condition, unless the husband has specified
otherwise. The Fatawa Alamgiri states that if a husband says to his wife "If a
certain person comes, your choice will be in your hands", she will have the
choice of terminating the marriage when she is in the majlis, after becoming
31
aware of the coming of the person.

Ila, Zihar and Li'an

Although now virtually obsolete, traditional law also recognises that marriage
may be terminated by the procedures known as ila, zihar and li'an. In the
traditional law of ila, a husband swore on oath not to have intercourse with his
wife for a period of four months or more. If he resumed sexual relations with her
before the four month period had expired, he was required to make expiation
(kaffara). If, however, he failed to renew sexual relations with her, then
according to Hanafi law, once the period of four months expired, the marriage
was dissolved automatically. No decree of the court was necessary.
According to the other Sunni schools, however, and according to the Ithna
Ashari sect of the Shi'a, the marriage was not automatically terminated by the
expiry of the four-month period; instead the wife had the right to apply to the

30
The courts in the Indian sub-continent have held that the conditions on which the wife could
exercise her delegated right of repudiation must be reasonable, not against public policy and in
conformity with the provisions of the Contract Act.
31
al-Fatawa al-AJamgiriya, p.423 (see fu. 6 above, p. 8).
 26 Islamic Marriage and Divorce Laws of the Arab World

court, which could then order the husband to resume marital relations or to
divorce his wife. If he refused to do either, the judge would pronounce the
repudiation on his beha1£
Zihar is a procedure whereby the husband compares his wife to any of his
female relatives who are within the prohibited degrees of relationship to him. The
usual practice was for the husband to compare his wife to the back (zahr) of his
mother. The effect of zihar was that the husband was forbidden to have -sexual
relations with his wife until he had made expiation by fasting for two months,
freeing a slave or providing sixty poor persons with their midday and evening
meals. If the husband resumed marital relations without making due expiation,
he was held to have committed a grave sin, but no sanctions were imposed upon
him by the law. The wife, in such circumstances, could refuse to cohabit with
him, but though such refusal would not be held to be nushuz, she would not be
entitled to a dissolution. If the husband failed to make expiation and continued
to abstain from sexual intercourse, there was an impasse which only the Malikis
sought to resolve. In such a case the Malikis held that if sexual intercourse had
not taken place for four months or more, the situation was the same as if the
husband had pronounced ila. Therefore, according to Maliki law, but not
Hanafi law, zihar is a ground upon which a wife may obtain a dissolution.
In traditional law, a husband who, with good cause, believed that his wife had
been unfaithful to him, but who was unable to prove it in accordance with the
strict standard of proof required by the Shari'a, could employ the procedure of
li)an to accuse her of adultery and to deny the paternity of a child with which she
was pregnant or to which she had just given birth. 32
/ The procedure of li)an is laid down in the Qur'an, Surah 24, verse 6. The
husband who wishes to accuse his wife of adultery 33 or to deny the paternity of
of her child but who is unable to prove it except by his own testimony, takes four
oaths in the name of God that he is speaking the truth. Then he invokes the
curse of God upon himself if he is lying. Then the wife repeats the procedure.
She testifies on oath four times that her husband is lying and she invokes the
curse of God upon herself if he is speaking the truth. The parties thus avert the
penalties for qadhf (false accusation of unchastity) and for ZJna) (unchastity)
respectively, by swearing the oaths.
The result of li)an is that sexual intercourse between the husband and wife is
prohibited, but the marriage is not automatically dissolved in Hanafi and Hanbali
law according to the dominant doctrine of those schools.
After the mutual imprecations the qadi must call upon the husband to
repudiate his wife by talaq; then, if the husband refuses to do so, the qadi will

32
In Hanbali law a man could not deny the paternity of an unborn child and the Wan procedure
had to be delayed until its birth. Mansar ibn Yunus al-Bahuti, Kashaf al-Qjna, vol.ill, pp.231-
230.
33
Adultery can be proved only by four eye witnesses to the offence, or by four confessions.
 The Uncodifted Law 27

himself dissolve the marriage. Thus if the husband retracts his accusation before
the qadi has effected the dissolution, the marriage will continue to subsist but
the husband will become liable for the hadd offence of qadhf, for which the
punishment is eighty lashes.
According to Maliki law34 and the law.ofthe Ithna Ashari set of the Shi'a the
marriage is automatically dissolved as soon as the mutual imprecations have been
completed. The Shafi'is also recognise that li)an automatically dissolves the
marriage and they go further than the Malikis by holding that the marriage is
terminated once the husband has sworn the oaths and before the wife has done
so.
If a husband accuses his wife of adultery or denies the paternity of her child,
but refuses to go through the procedure of li)an, the judge will confine him to
prison until he either takes the oaths or retracts his accusation. If the husband
takes the oaths but the wife refuses to take the oaths of denial, she may be
35
imprisoned until she either agrees to swear or confesses to her adultery.

Khul'

Divorce may also be effected by mutual agreement. Such a divorce is known as

khuP or mubara)a. (Roughly speaking, it is known as khuPwhere the aversion is
on the side of the wife, and mubara)a where this is mutual.) KhuP is concluded
by offer and acceptance. Thus the wife may offer to pay a certain sum (usually the
amount of her dower) to her husband in return for his releasing her from the
bonds of matrimony; or the husband may offer to divorce his wife in return for a
fixed amount of compensation. It is not necessary, however, that this
compensation shall be monetary, except in Shafi'i law. Whether it is the
husband or the wife who initiated the proceedings is important, especially in
Hanafi law, since if it is the husband who makes the offer, he may not retract it
before the wife has given an answer, because on his side the offer partakes of the
nature of an oath of repudiation which becomes effective as soon as the wife
signifies her acceptance of the offer; but if it is the wife who makes the offer, she
may retract it at any time before the husband accepts, andmay also, according to
the dominant Hanafi doctrine, reserve an option of three days in which she may
revoke her offer.
In the law of the other schools, if the khuP is made subordinate to a condition
such as the payment of compensation, then the same rules apply as above. But if
it is a simple khuP, without a condition, it is irrelevant which of the spouses
initiates the proceedings and the husband as well as the wife may retract his offer
before acceptance.

34
Ahmad ibn Muhammad al-Dardir (1934) al-Sharh al-Kabir, vol.II, Cairo.
35
See Hidaya, p.397 and Fatawa, p.540 (see fu 6, p. 8 above).
 28 Islamic Marriage and Divorce Laws of the Arab World

As mentioned above, financial compensation is a usual, but except in Shafi'i

law, not an essential part of khuP. In Hanafi law when a khuP is· concluded,
according to the dominant opinion of the school36 all debts existing between the
parties and arising from the marriage itself are annulled. This applies whether or
not any compensation is stipulated.
It is considered reprehensible for a husband to ask for more by way of
compensation than the amount paid as dower. Nevertheless, in law any amount
can be fixed as compensation and thus this type of divorce is open to abuse by
husbands who may demand very large sums in return for divorcing wives who
have no other means of obtaining their freedom. This is especially true in the case
of Hanafi wives who, generally speaking, have no means of freeing themselves
from a union, no matter how distasteful or even harmful it has become to them,
since Hanafi law recognises no grounds on which a woman may apply to the
courts to have her marriage dissolved, except the total incapacity of the husband
to consummate the marriage.
,l The Qur'an (Sura 4, verse 35) provides that if discord (shiqaq) exists between
; pouses, two arbitrators - one from the family of each, if this is possible - are to
be appointed. The first duty of the arbitrators is to attempt to resolve the discord
and reconcile the parties. In the dominant view in all Sunni schools, except the
Malikis, this is the extent of the power of the arbitrators, who are deemed to be
acting on behalf of the spouses, and therefore unable to effect a divorce without
the consent of the husband, or a khuP without the consent of both parties. In
Maliki law, however, and according to a variant Shafi'i opinion, the arbitrators
are held to be the representatives not of the two parties but of the court and, if
they fail in their attempt to reconcile the parties, may decide that the marriage
must be ended. If they find that the husband is primarily to blame for the break-
up of the marriage, they will order a divorce by talaq, while if they find that the
wife is chiefly to blame, they may either refuse to grant a divorce and order her to
return to her husband, who must treat her kindly, or they may decide that the
parties should be divorced but that the wife must pay some compensation to the
husband, usually the return of her dower. 37
Thus a Maliki wife, if persistent enough, could usually rid herself of an
unwanted husband, provided she was willing to pay for her freedom. This
conferred a right on women which in some measure lessened the difference
between the spouses regarding their right to a divorce. The Maliki view
,,rrgar~g shiqaq has been adopted by a large number of Middle Eastern
countnes.

36
On this point Abu Hanifa, Shaybani and Abu Yusuf disagreed amongst themselves.
37
Ahmad al-Danear, (1934) Al-Sharh al-Kabir, vol.11, pp.307:-8.
 The Uncodified Law 29

Judicial Dissolution

Certain contracts may in Islamic law be terminated by either party, without the
terminating party being held to be in breach. Contracts which fall into this
category are those which the jurists considered were dependent for their success
upon the mutual trust and faith and the continuing goodwill of the parties. The
jurists reasoned that although the parties entered into the contract in good faith
and in the belief that they would continue to enjoy mutual good relations, the
future might prove otherwise. For Muslims the future is determined by Allah and
if in the course of time the parties find that their initial trust and liking has gone,
this is the will of Allah and accordingly either party may elect to terminate the
contract and will not be penalised for doing so. Examples of contracts where
continuing mutual trust is of the essence are partnership, agency and marriage.
The contract of marriage dilfers, however, from the other contracts where either
party has the right of termination, for it is only the husband who has the right to
terminate a marriage contract unilaterally and at will, by the pronouncement of
talaq, which has been discussed above.
A wife according to all the schools and sects may only terminate her marriage
unilaterally when such a power is delegated to her by her husband. Otherwise a
wife who is unhappy in her marriage and who wishes to obtain a dissolution must
petition the court for divorce by judicial decree, showing cause why such a
decree should be granted.
The law of the Hanafi school is the most restrictive towards women in the
matter of divorce. The sole ground on which a Hanafi wife may obtain a
dissolution of her marriage is her husband's inability to consummate the
marriage. Hanafi law will allow a wife a dissolution only if she can show that she
was unaware of her husband's impotence at the time of the marriage. If a wife
seeks a dissolution on the grounds of her husband's impotence the court will
delay giving a decree for a period of one year. If the husband succeeds in
consummating the marriage during this period, no decree will be granted. If,
however, the wife proves that her husband's inability to consummate the
marriage is because of a lack of sexual organs, no period of delay will be granted
and the court will issue a decree immediately.
The burden of proof is on the wife to establish the alleged impotence; in the
case of non-virgin wives, this burden is difficult to discharge. Such a wife may be
defeated in her claim by her husband denying her allegation and swearing an oath
that he had in fact had intercourse with her. 38
It was the unfortunate position of Hanafi wives in the Ottoman Empire which
caused the promulgation of the first reform to the law of personal status in 1915.
It was a not uncommon practice for men from other parts of the Ottoman
Empire to visit or to seek employment in Turkey, particularly in Istanbul, and
while there to marry local women. On the expiry of their visit or period of
38
Hidaya, vol.II, p.20.
 30 Islamic Marriage and Divorce Laws of the Arab World

employment many of these would return home, leaving behind their local wives
without divorcing them. Such women, under the prevalent Hanafi doctrine,
were unable either to obtain maintenance or to obtain a divorce and so were
unable to marry another husband who could support them.
The Ottoman Sultan issued a firman which substituted the Maliki and
Hanbali doctrine for that of the official Hanafi school, and gave a woman
deserted in such circumstanes the right to obtain a judicial dissolution of her
marriage. A second firman was issued at the same time applying not only the
doctrine of the other Sunni schools but a variant view of the Hanafi school
granting a woman who found herself married to a man who was was insane or
suffering from a disease, such as one of the venereal diseases, which made the
continuance of married life dangerous for her, the right to obtain a judicial
decree of divorce.
Following these first tentative steps towards reform, the twentieth century saw
many changes take place in those countries of the Middle East where Hanafi law
prevailed, including, inter alia, the establishing of certain grounds upon which
women could obtain judicial decrees of divorce.
Llke the Hanafi school, the other schools and the Shi'a acknowledge the
incapacity of the husband to consummate the marriage as a ground on which a
woman may obtain a judicial termination of her marital status. However, while
Hanafi law recognises such incapacity as the sole ground on which dissolution
may be sought the other schools and the Shi'a recognise other additional
grounds.
However, the position of a woman under the law of the Ithna Ashari sect of
the Shi'a is little better than that of her Hanafi sister, for the only other grounds
'on which the qadi may grant a judicial decree are where the husband is suffering
·from insanity, leprosy or venereal disease.
. The law of the other three schools of Sunni Islam is more favourable to
women seeking to terminate an unhappy marriage, and in addition to allowing a
decree to be granted for physical defects present in the husband, recognises
further grounds on which a petition may be made. Thus, the Shafi'i school allows
the court to grant a decree of judicial divorce (faskh) where the husband wilfully
refuses to maintain his wife.
Hanbali law recognises the various physical and mental defects and also
recognises further grounds on which a judicial divorce may be granted. A wife
may obtain a divorce if her husband is absent for a "prolonged" period of time -
usually interpreted as six months, even if the husband continues to provide her
with maintenance during his absence - or if he abstains from having sexual
relations with her for a similar period. However, Hanbali law recognises that the
absence of the husband may in certain circlUilstances be excusable, in which case
it will not give rise to the wife's right to obtain a divorce. The failure of the
husband to provide maintenance, whether this is because of wilful refusal or
inability for whatever reason, is also a ground on which a petition may be
brought.
 The Uncodified Law 31

Finally, if a husband breaks a stipulation which has been inserted into the
contract of marriage in accordance with the provisions of the Hanbali law, his
wife is entitled to obtain a divorce on the grounds that as her husband is in
breach of the marriage contract she need no longer consider herself bound by it.
It is the Maliki school which is the most liberal as regards the right of a wife to
obtain a dissolution of marriage by decree of the court. However, when the
MalikiJudge grants the wife a decree he does so by pronouncing an irrevocable
talaq3 on behalf of the husband, thus continuing the legal fiction that it is the
right of the husband alone to terminate the marriage contract by repudiating his
wife.
A unique feature of Maliki law is that it allows a woman to obtain a divorce if
her husband fails to pay any part of the dower. This right exists, however, only as
long as the marriage remains unconsummated. The Maliki wife, like the Hanbali
Wife, has a right to obtain a divorce if her husband fails to maintain her, for
whatever reason, unless of course his refusal to pay is justifiable because she has
been disobedient to him in some manner. A divorce on such grounds will be
effected by a revocable talaq so that if the husband pays the outstanding
maintenance while the wife is still observing her period of idda the divorce will
be thereby revoked.
Again the Maliki, like the Hanbali, wife also has a right to divorce if her
husband is absent. In this case the wife must first assert that the absence of her
husband may cause her to behave in such a way that her virtue is threatened, and
40
secondly that the absence has been prolonged. If the whereabouts of the
husband are known, the court has the right in strict law to demand that he
should either return to his wife, or invite her to join him. Unlike Hanbali law,
there is no concept in Maliki law of an absence which is excusaJ?le.
Maliki law is unique in that it also allows a woman to obtain a divorce on the
grounds of dharar (prejudice), by invoking wrongful acts by the husband or by
claiming that living with her husband is harmful and prejudicial to her or by
claiming that there is discord between her husband and herself.
Proceedings on the grounds of dharar differ in cases where the wife is able to
prove that her husband has acted wrongfully and in cases where her complaints,
although not proved, are evidence nevertheless that there are problems in the
marriage or that the marriage is an unhappy one.
The taking of a second wife may never by itself be invoked to establish dharar.
The Maliki jurists are adamant that something permitted by the Qur'an itself can
never be construed as an act causing harm. Wrongful acts of which the wife
might complain include beating her without cause or with undue severity,
refusing sexual relations, insulting her or her family and preventing her from

39
See below in the case of divorce on the grounds of failure to maintain.
40
What constitutes prolonged absence has not been specifically defined. Some jurists say four
months suffices, while others say three years. The majority opinion seems to be that absence for
a period of one year or more will be d~erned to be prolonged.
32 Islamic Marriage and Divorce Laws of the Arab World

leaving the matrimonial home to visit her parents. It is sufficient for a divorce to
be granted that the husband has committed a single act contrary to law or
custom against the wife. In establishing proof of such an act, the court, although
it will require the testimony of two male witnesses, does not further require that
the witnesses were themselves present when the acts complained of were
committed, but will accept hearsay evidence.
If on the other hand, the woman is unable to bring proof that her complaint is
well-founded, Maliki law requires that two arbitrators be appointed, one from
the family of each spouse. The arbitrators must attempt to effect a reconciliation
between the spouses. If they fail in their attempt, they must seek to establish
which of the spouses is primarily responsible for the breakdown of the marriage.
If they are of the opinion that.despite lack of proof of any wrongful act it is
nevertheless the husband who is primarily responsible for the discord between
the spouses, they will pronounce an irrevocable talaq. If on the other hand they
find that it is the wife herself who is at fault, they have two alternatives. They may
refuse to terminate the marriage and order the husband to treat his wife with
kindness and patience. Alternatively they may decide that it is necessary for the
well-being of the spouses that the marriage be ended. In this case they will
pronounce a repudiation in return for the wife giving compensation, as fixed by
the arbitrators, to the husband (or in other words, they will effect a divorce by
khul' ).
If the arbitrators find that there is fault on both sides they will pronounce a
repudiation and order the wife to pay a modest sum by way of recompense.
The decision of the arbitrators is final. Although their decision is referred to
the judge, even if he disagrees with the findings of the arbitrators, he cannot
overturn their decision.