The glorified Allah commands:
“…It is not lawful for you to take anything of what you have given them unless they both worry that they will not be able to keep within the limits of Allah. If you worry that they will not be able to keep within the limits of Allah, there is no blame upon them if she sets herself free by giving back what she received. These are the limits of Allah, so do not transgress them. The ones that transgress the limits of Allah are the real wrongdoers.
” (Al-Baqara/The Cow 2:229)
A woman, who worries that her marriage cannot continue, informs the authorities about this situation. If the authorities agree with her at this point they give the woman the right to divorce –iftida-. If the woman decides to divorce, she returns her husband whatever she got from him as mehr. The expression supported in the verse :” anything of what you have given them…”, might be understood as both the entire amount of mehr or as a specific part of it. The amount to be paid back is decided by the authorities. If the husband is decided to be not guilty and to have fulfilled his duty as a husband, the woman is supposed to pay back the whole amount.
The authority mentioned above is the law court. If the law court is absent, the authority is given to an arbitrator. In certain cases, the law court might hand over the case to a single arbitrator, too. In the examples given below, the women have taken their cases to the Prophet Muhammad (p.b.u.h.) or to Umar (r.a.) the viceroy:
“Yahya related. to me from Malik from Yahya ibn Said that Amra bint Abd ar-Rahman told him from Habiba bint Sahl al-Ansari that she had been the wife of Thabit ibn Qays ibn Shammas. The Messenger of Allah (p.b.u.h.) went out for the dawn prayer, and found Habiba bint Sahl at his door in the darkness. Messenger Muhammad (p.b.u.h.) said to her, “Who is this?” She said, “I am Habiba bint Sahl, Messenger of Allah.” He said, “What do you want?” She said, “That Thabit ibn Qays and I separate.” When her husband, Thabit ibn Qays came, the Messenger of Allah (p.b.u.h.) said to him, “This is Habiba bint Sahl. She mentioned what Allah willed that she mention.” Habiba said, “Messenger of Allah, all that he has given me is with me!” The Messenger of Allah (p.b.u.h.) said to Thabit ibn Qays, “Take it from her,” and he took it from her, and she stayed in the house of her family. ”
“Once a woman came to Umar b. al-Hattab and complained about her husband. The woman was imprisoned in a hut of straw and thatch in order to pass the night there. In the morning Omer came to the hut and asked the woman about her night. She replied that she never had had that a brilliant night. Then Omer asked the woman about her husband. She praised him and later added “He is what he is, but I can’t help it.” After this event Omer consent to the woman’s request to divorce her husband; he permitted her to use her right to divorce (iftida).”
Omer’s purpose was to understand if the woman lived or not together with her husband. Neither our Prophet, nor Omer asked the women the reason of their hatred.
This verse enlightens the issue of the woman’s right to divorce.
“O believers! When believing women come to you flying, then examine them. Allah knows best their faith; then if you find them to be believing women, do not send them back to the unbelievers, neither are these (women) lawful for them, nor are those (men) lawful for them, and give them what they have spent; and no blame attaches to you in marrying them when you give them their dowries; and hold not to the ties of marriage of unbelieving women, and ask for what you have spent, and let them ask for what they have spent. That is Allah’s judgment; He judges between you. Allah is Knowing and Wise” (Mumtahine, 60/10)
One of the decrees of the Hudeybiye agreement, done between our Prophet and the infidels of Mecca, was this: “Even though believer of your religion every man from our community that comes to enjoin you (and your followers) is required to be returned back to his community.”
After this agreement a group of Muslim women from Mecca came to the Prophet, in Hudeybiye. It was upon this event when the previous verse was revealed. The word mentioned in the agreement and translated as ‘man’ into English is the Arabic word for man which as its English corresponding noun stands for the human male. As the women were not included in the category mentioned in the agreement, the Prophet behaved in compliance with the verse and did not return them back to their tribe.
The topic of the previous verse is especially the wedded women who for their religious beliefs came to find shelter among the Muslims. This action undertaken from these women shows their decision to divorce their husbands. Nevertheless, on the other hand there were Muslim women who remained in Mecca because they did not make such a decision. In relation with Hudeybiye the Glorified Allah commands:
“It is they who disbelieved and turned you away from the Sacred Mosque and (turned off) the offering withheld from arriving at its destined place; and were it not for the believing men and the believing women, whom, not having known, you might have trodden down, and thus something hateful might have afflicted you on their account without knowledge– so that Allah may cause to enter into His mercy whomsoever He pleases; had they been widely separated one from another, We would surely have punished those who disbelieved from among them with a painful punishment.”(Fetih/ 48/25)
Let’s analyze the 10th verse of surah Mumtahine into sections.
1- “O believers! When believing women come to you flying, then examine them. Allah knows best their faith. If you find them to be believing women, do not send them back to the unbelievers, neither are these (women) lawful for them, nor are those (men) lawful for them.”
The migration of woman means her abandoning of husband, children, family and hometown. It has been required to test and examine the reason that led her to abandon everything. This is an examination done in order to understand if truthfully the reason that led her to leave everything is her faith. This judgment –if positively concluded- will led to a material burden for the Muslims, as the acknowledgement of the divorce this way is nothing less than a process of ‘iftida’. After the onset of this process, those women are not lawful and allowed to their husbands anymore. However, together with the termination of the process the women is supposed to turn back the expenses her husband did for her. This is commanded in the following statement of the verse:
2-“Give them what they have spent.”
The expenses mentioned are similar to the fee paid by Habibe to Sabit b. Kays. As the migrating women, obviously, had no wealth, the Muslims were commanded to pay their fees. Afterwards, these women were free to marry with any other men, if they wished. This has been emphasized in the following part of the verse:
3-No blame attaches to you in marrying them, when you give them their dowries.”
The verse points out to that the fees the Muslims paid for these women to the previous husbands was a donation. In case they remarry, they are not asked to pay back the donators with dowry money given to them by their new husbands.
There is another fact that should be emphasized in relation to this subject; nor in this verse, nor in Baqara- 2:29, neither in the Habibe hadith the woman that asks to divorce her husband is charged to wait the prescribed period. The command of waiting the prescribed time for women is asked only after the first and second time of the divorce, when this is declared by the husband (talak). This prohibition has been put in order to aid the reconciliation of the family if possible; it is not a scrutiny made in order to identify a common baby’s existence within the woman’s womb.
This inspection can be concluded within a menstrual and a pure period circle and is called ‘istibra’; what is essential for the divorce pronounced by the woman –iftida-.
This verse contains commandments related to the private international law. The verse equips the non-Muslim women in a marriage with a Muslim, with the same rights given to the Muslim women. This can be noticed in the next part of the verse:
4- The word (isam) mentioned in the statement in the verse: “Don’t hold up tight the unbelieving women” in its plural changes into (ismet). ‘Ismet’ can be translated as shielding, sustention, and hold up . The woman is under the shielding and protection of her husband. This is why the man sometimes might prohibit his wife – hold her up- from doing something. In this part of the verse the subject are the unbelieving women, who wanted to divorce their Muslim husbands and go to Mecca. The command: “don’t hold up tight the unbelieving women” means ‘do not obstacle these women’. As mentioned before the verse has a deep social and govern administrational side; therefore, at the same time it is suggesting not to obstacle them if they wish to emigrate. The day this was revealed, Omer set free his two unbelieving wives. They migrated to Mecca, where one married Abu Suffian while the other married Safvan b. Umeyye . However, Abu Suffian converted to Islam during the conquest of Mecca, while Savfan b. Umeyye converted to Islam after the Hunain battle .
Her aspiration not to live with a Muslim husband certainly is a legitimate reason for an unbelieving woman to ask for divorce. The termination of the divorcing process is totally and solitary related to the paying back of what she got from her husband. The related statement in this verse is:
5- “And ask for what you have spent (for them).”
In other words, just like Habibe, the non-Muslim women are free to go, the moment they turn back their dowries.
6- “And they should ask for what they have spent.”
Just the way the Muslims have the right to ask for their expenses, the non-Muslims have the right to ask for theirs.
If the non-Muslim wives of Muslim men emigrate to the lands, where people of their religious beliefs live and their previous husbands are not able to obtain their expenses, only then is the command stated below applied.
“And if anything (out of the dowries) of your wives has passed away from you to the unbelievers, then your turn comes, give to those whose wives have gone away the like of what they have spent…”.(Mumtahine 60/11)
To conclude, the verses of the Holly Quran gave the woman the right to divorce; furthermore, the Prophet clarified this topic by applying this type of divorcing.