THE LEGALITY OF DIVORCE IN THE PERSPECTIVE OF HADITH

JURNAL USHULUDDIN Vol. 24 No. 1, Januari - Juni 2016 51

THE LEGALITY OF DIVORCE IN THE PERSPECTIVE OF HADITH

Ridwan Hasbi1 and Syafaruddin Hasibuan2

1UIN Sultan Syarif Kasim Riau2STAI Barumun Raya North Sumatra

[email protected]

AbstractCerai talak (formula for divorce) and Cerai gugat (sue for divorce) are two terms oftermination of marriage bond in Indonesia. The formula of divorce is a term that coincideswith a divorce coming from the will of a husband and sue for divorce is the desire of a wifeto separate from her husband. Islamic Law legalizes the right of wives in cases of divorceredeem (khulu‘) and fasakh because of syiqaq. On the other side, there are signs setting therights up, so that the given reasons to use the rights must be legal in syar‘i. The reasons forthe legality of divorce is a common-cause factor, so that the banning with threatening hadithsas well as those of the hadiths that say wives must obey their husbands, the wives shouldnot hurt their husband and the wives are prisoners of husbands are all categorized intogeneral. At another angle, there also the hadiths concerning with the status a couple husbandand wife is heaven and hell for them in a household. Contextualization of hadiths that bana wife asking for divorce without any legal cause from Syar‘i, and also those of the hadithslegalize khulu‘ are the realization of the conjugal lives with regards to the mandate of Allahand religious values. The facts of a wife sue for divorce to her husband are the conditionsrelated to a confusion occurred in a household which are influenced by a variety of factors,i.g. economy, adultery, polygamy, social strata and others. A sue for divorce which is Syar’ibased condition is a disagreement prolonged strife after peace held between the two sidesand act endangers a wife.

Keywords: Divorced, Hadith and Sue

AbstrakCerai talak dan cerai gugat merupakan term pemutusan ikatan pernikahan di Indonesia.Cerai talak yaitu perceraian yang datang dari kehendak suami, dan cerai gugat bersumberdari keinginan istri untuk berpisah dari suaminya. Hak istri dalam cerai gugat ini dilegalkansyariat Islam dengan kasus talak tebus (khulu‘) dan fasakh sebab syiqaq. Sisi lain terdapatrambu-rambu yang mengaturnya, sehingga alasan yang digunakan harus legal secara syar‘i.Legalitas alasan itu dalam faktor sebab cerai bersifat umum sehingga hadis larangan denganancaman dan hadis-hadis istri harus taat suami, istri tidak boleh menyakiti suami dan istrimerupakan tawanan suami. Dari sudut pandang lain berkaitan dengan kedudukan suami-istri adalah surga dan neraka bagi mereka dalam bahtera rumah tangga. Kontekstualisasihadis larangan istri minta cerai tanpa sebab legal Syar‘i, juga hadis tentang bolehnyakhulu‘ dan realisasi kehidupan suami-istri berkaitan dengan amanah Allah dan nilai-nilaiibadah. Fakta cerai gugat berkaitan dengan kekisruhan yang terjadi dalam rumah tangga

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sehingga istri menggugat cerai suaminya dengan berbagai faktor mulai dari maslahekonomi, perselingkuhan, poligami, strata sosial, percekcokan yang berkepanjangan danlainnya. Cerai gugat dengan alasan yang syar‘i berlandaskan pada perselisihan denganpercekcokan yang berkepanjangan, setelah diadakan perdamaian antara dua belah pihakdan perbuatan membahayakan istri.

Kata kunci: Cerai, Hadis, dan Gugat

IntroductionThe prescribed wedding in Islam aims at

Forming a sakinah, mawaddah and rahmahhousehold outlined by the mercy of God1 Whichis actualized in the ceremony of a mix genderbetween two servants of God with the backgroundin the bonds of lawful marriage law.

The marriage bond is a mean to meet thedemands of a very basic human instincts, and themeans for establishing an Islamic family. Islamawards marriage bond immensely to the extentthat it is set in proportion to a half part of religion.

Narrated by Anas ibn Malik, RasulullahPBUH said: “If a servant of God married,then a half of religion has perfectly done, andfear to Allah in a half of the rest.”

Narrated by Anas ibn Malik, RasulullahPBUH said: “He who was given by God anobedient wife, then indeed Allah had helpedhim in a half of his religion. So, fear Allah inthe second half.”

The journey of two people bound inmarriage with the purpose of worship to Godcannot be separated from muamalah of livingtogether, happy or sad, healthy or ill conditions.It is one entity in which a family has rules, bothdetailed and global that regulates the relationshipof individuals. This is a hallmark of an Islamichousehold. The household association issubmissive to the rules of Allah. They get alongand work together to strengthen each other forthe purpose of worshipping to Him.

The integration of two people in bond of amarriage life is formulated at the advantages anddisadvantages of each pair which is chime in withanother. Excess belongs to a husband covers theshortfall of a wife and wife’s excess covers theshortage of a husband, they blend in harmony. Inthe course of the household, there would beconfronted with conflict accompanied byemotional states, either the husband or the wife,even a problem like this is tangible to breakingup their partnership in the form of divorce.

Divorce in Islam is legally permissible anda husband is in control when dropping divorce, ahusband has the right and authority to divorcewhich can be used regardless of time and place.And whatever reason of the husband to divorcehis wife depending on the assessment of thesubjectivity of the husband, because there is noofficial board that serves to assess a husband’sobjectivity because the husband has been able toperceive of survival together, and has been giventhe burden of paying dowry and bear the lives ofhis wife and children.

On the other hand, a wife is given the right

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1See al-Rum, verse 21.2 Sunan Iman al-Baihaqi, Hadith No. 5486, Volume 4, 382.3Al-Tabrani, Al-Mu’jam al-Awsath, Hadith No. 972,Volume 1 (Cairo: Dar al-Harmain, 1415), 294.

Ridwan Hasbi dan Syafaruddin Hasibuan: The Legality of Divorce in the Perspective of Hadith


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asking for divorce either in the form of khulu‘ orbring the issue to the Qadi in the form of sue fordivorce4 after the wife love interaction to herhusband is missing. The position of a husbandover his wife and a wife on the husband beingdebated related to gender issues, exactly when theissues is incorrectly applied. Gender differencesin the construction of the Islamic teachings havetheir own roles, functions, responsibilities, needsand social status between men and women. Whenthis difference is based on the culturalconstruction of the society or in the understandingof Western culture, there will be conflict.

Demand for divorce from a wife to herhusband is always associated with equalbelongings of right and the wife is on an equalfooting with her husband. If there is a mismatchbetween the two, i.e. either in communication orinteraction, or related to social status or economicproblems, so that the cancellation of the marriagesettlement is at last path to be taken. Whereas ahousehold with full of problems and contradictionsof conflict is said to be colorful wedding.

In reality, the household life cannot be freefrom problems and conflict that led to thecancellation of marriage contract in which thedivorce cases increase from year to year. Officeof Pekanbaru Religious Court recorded as manyas 1426 cases of divorce in 2013. 410 Husbandand wife divorced cases and 1016 wife filed fordivorce to sue over husband. It is calculated thatthere were 70 per cent of contested divorce ofwives to husbands than the husbands to wives.5

While in 2014 there was an increasing significantpercentage up to 200 percent that is 1700contested divorce cases with almost the samepercentage (70%) proposed by women.6

When we examine the issues from differentaspects, so many causes contributed to theemergence of the divorce cases, whethereconomic, social, psychological, hedonistic styleof life, cultural, and technological. A womandivorcing her husband is Islamically incorrect,unless there is a justifiable reason from Shari’alaw, essentially, such as a husband committed hiswife abusively. Asking for a divorce without anyjustifiable reason from Shari’a means committinga big sin that must be shunned and abandoned byMuslim wives.

Narrated by Tsauban: Rasulullah PBUH said:“Anyone wife requested (demanded) to herhusband for divorce without justifiable reasonthen forbidden smell of heaven on thewoman”.7

The paradigm of the above Hadith Nabawiestablishes that a wife may not ask for divorce orsues her husband to divorce her or does khulu‘without any justifiable basis from Shari’a. But ifthere is a basis or causes justified by Shari’a, thelaw is conditional or may be mandatory, optional,performance of which is not sinful or permissibleonly.

Divorce is lawful but most hated by Allahso that divorce might be a final alternative whenneeded. Otherwise, keeping the households canbring to greater impact than the divorce itself,8

then its implementation is conditional.

The Nature and Shape of Sue for Divorce1. The Nature of Sue for Divorce

Contested divorce is a term that is based onthe will of the wife and the formula for divorcewhich is based on the will of the husband in4Sue for divorce, also called contested divorce is a claim

for divorce (whether oral or written) proposed by a wife tobe divorced from her husband.5See http://m.riaupos.co/42113-berita-1.016-kasus-cerai,-istri-gugat—suami-.html#.UvmXeWJ_v7Q6See Republika Online, March 30th, 2015.

7Sunan Abu Daud, Hadith No. 2228, Volume. 2, 235, SunanIbnu Majah, Hadith No.2055, Volume. 1, 662, and MusnadAhmad ibn Hanbal, Hadith No. 22433, Volume. 5, 277.

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terminating their marriage bond. Compilation ofIslamic Jurisprudence, Article No. 114 that thebreakdown of marriage may be occurred byDivorce or Lawsuit of Divorce.9 According to Actof Religious Court No. 7, 1989 has changed talakto a new term. The term used for divorce petitionis called “Formula for Divorce” and the termformerly used for petition of divorce has beenreversed to “Sue for Divorced”.10

The term sue for divorce is composed of twokey words, sue and divorce. Divorced in Arabicis called talaq, namely (Removingand liberating of bond).11 Removing and liberatinglinguistically mean breaking the bond of marriagebetween husband and wife in which each of themis free from the bond of marriage.

As far its term is concerned, divorce is meant

(Removing the marriage bond, releasingmarriage ceremony by saying talaq and thelike, raised the marriage bond with certaincondition or desire).12

Terminology of divorce includes threenatures; 1) Removing, means to open up bindingties between husband and wife in the figurativelypalace of household. 2) Opening, refers to theceremony of marriage as it has been tied up byguardian by law so that the marital relationshipended. 3) To appoint, is the breaking of marriagebond due to several reasons in particular.

In terminology of Indonesian language, theword “gugat” means Sues said in Indonesianmeans defendant and report (case). “Menggugat”:can be meant to impeach; to complaint (case), andto demand.13 Combination of the two wordsidentically with sue for divorce in which a wife’swillingness in breaking the bond of marriage fromher husband. If divorce is generally the separationof a husband and a wife, and the words came fromthe husband’s willingness to divorce, so, sues fordivorce is a severed result of a proposal filed bythe wife to untied the marriage bond to theReligious Court, then the respondent (husband)agreed, so that the religious court granted theconcerned petition.14

Contested divorce is a form of divorce withremoval of marriage by Judge’s decision, ordemands by either party in the marriage bond.15

The notion of contested divorce is widely alawsuit proposed by the plaintiff (the wife) to theReligious Court, that a marital relationship withher husband she decided through a decision ofthe Religious Court, in accordance with applicablelaws.16

The wife has the same rights as the husbandin case of sue for divorce if there is sufficientreason for her. For example, husband treatscruelty, the wife can ask for a divorce and not beforced to accept the treatment which is not suitable

8According to the Compilation of Islamic Jurisprudence,Article No. 116; The basic acceptable reason of sue fordivorce at Office of Religious Court are: a) husband hasfornicated, drunk, a condenser, a gambler etc. which isunescapable; b) husband leaves the wife for 2 (dua) yearsconsecutively without permissible valid reason. It meansthat the husband leaves the wife intentionally andconsciously. c) The husband is in jail for more than fiveyears exactly after the marriage contract; d) The husbandtreats his wife relentlessly and persecuted the wife unsafe;e) The husband has physically incapable to fulfill hisresponsibilities; f) There happened consecutivelybreakdown and confusion with no possibilities of livingtogether safely; g) The husband breaks promises that hehas dealt at the beginning of his marriage contract; h) Thehusband converts to other religious believe that causesinharmonic household.9the Compilation of Islamic Jurisprudence, Article No.116.10 Yahya Harahap, Kedudukan Kewenanangan dan AcaraPengadilan Agama (Jakarta: Sinar Grafika, 2003), 207.11Wahbah al-Zuhaili, al-Fiqh al-Islami wa adillatuhu, Vol.7(Bairut: Dar al-Fikri, 1986), 356.12Ibid.

13Kamus Besar Bahasa Indonesia, http://www.kamusbesar.com/13302/gugat.14Zainuddin Ali, Hukum Perdata Islam di Indonesia(Jakarta: Sinar Grafika, 2009), 81.15Subekti, Pokok-pokok Hukum Perdata, Cet. XXXI(Jakarta: PT. Intermasa, 2003), 42.



for her. Islamic jurisprudence explains that a wifehas the right to ask her husband to decide or todivorce her which called fasakh and khuluk.

2. Shapes of Sues for DivorcedTalak is an authority granted over a husband

to do and to realization of divorce that includesone, two and three. In relation with a wife whono longer wants to continue the marriage bond,which stripped herself from the power of ahusband in a household. The decision of a wifeto split up from a husband is a human right inwhich Islam maintains as a form of maintainingthe benefit and distanced from mafsadah(damage).

Sue for divorce becomes a model of untiedmarriage bond which confirmed previousmarriage contract (Ijab Qabul). The model ofdivorce with a wife sues for divorce on herhusband includes two forms:

a. FasakhLinguistically, Fasakh is defined as

(terminate or cancel the contract). Thedistinguished term between fasakh with talak isthe release of marriage bond is fundamentally andthe husband and the wife cannot be reconciledafter the release, while talak is possible to beconnected again accept if the husband hasmentioned talak three in releasing the marriagebond.17

The terminology of fasakh means severingties of marriage contract for obvious and clearreason that hinder the preservation of conjugalrelations. In the realization of fasakh betweenhusband and wife is second right of both.Grounding lawsuit that allows spouses to agree

with fasakh must be based on the essentialreasons, so divorce of this kind is a demand tothe court and the judges would decide the divorceor not.

The divorce process in the form of fasakh isa lawsuit-base-divorce that a plaintiff must havecomplete evidences. The evidences may lead tothe conviction for judges who hear the case.

Although fasakh can come from the husbandand wife but synonymously files the sue fordivorce by his wife without any givencompensation to the husband, in a state ofemergency such as: husband lapsed or deny Islam,the husband did not leave a living spiritually andleft his wife, the husband does not pay or pay offkufu‘ dowry and marriage not to be given the rightkhiyar (select) continue a marriage or not.18

The connotation that becomes thebackground of Fasakh when the wife feelsaggrieved by her couple, perceiving her rightsblocked in accordance with religious teachings.As a result, no longer been able to continue themarriage life because the household harmonywould no longer exist and is impossible to reachpeace.

b. Khulu‘Khulu’ comes from the word - -

which means removing, remove, or stripped.19

Khulu’ in the Indonesian language is often referredto “talak tebus” (redeem of divorce), because thedivorce pronounced by a husband providing withpayments made by the wife to her husband.20

In view of Hanafiyah followers, khulu’ is toeliminate ownership of marriage (which isconnected to reception from the wife) in terms ofusing utterances of khulu’ or the utterances thatconvey using similarly to khulu’. Meanwhile,according to Malikiyah, khulu’ is a divorce by

16Ahrum Hoerudin, Pengadilan Agama (Bahasan TentangPengertian, Pengajuan Perkara, dan KewenanganPengadilan Agama Setelah Berlakunya Undang-undangNomor 7 Tahun 1989 Tentang Peradilan Agama) (Bandung:PT. Aditya Bakti, 1999), 20.17Wahbah al-Zuhaili, 348.

18Ibid.19Sunan Ad-Daruquthni, Hadith No.3629, Vol. 4, 376.20Modul Materi Pelatihan Korps Penasehat Perkawinan danKeluarga Sakinah (Jakarta: Depag, 2004), 150.

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redemption, whether it comes from the wife(guardian or representative) or by using utteranceof khulu’. According Shafi’ites, khulu’ meansfurqah (separation) occurring between husbandand wife by ransom, it may also be using theword talaq or direct khulu’ by pronouncing it.While Hambali contended that khulu’ is theseparation of a husband to his wife with a ransomtaken from the wife (or otherwise) with certainutterances.21

The terms khulu‘ in some views wasconnoted the same, because it is the term used tobreak the bond of marriage by a wife’s willingnessin order to provide compensation to the husband.Wife’s willingness to give paid or objects beingheld to ransom or replacement of willingness todivorce her husband is the realization of khulu‘.This divorce statute is called bain (no longer referto it), meaning that the husband has done khulu’on his wife, he is not entitled anymore to referback to his wife even though the wife was willingto accept the ransom which had been paid. If sheis willing to accept her ex-husband, the husbandshould do the marriage contract once again incompleting all complementary pillars andconditions.

The law of khulu‘ includes Mubah (Nuetral),Optional and Forbidden

Firstly, Mubah: Wife is allowed to applykhulu’ when she feels uncomfortable living withher husband, both because of her husband’s vices,or feared not to be given her rights or herobedience to her husband does not cause on thestanding and subdued conditions of Allah. Underthese conditions, Khulu’ for the wife may belegitimated, as Allah says:

“If you fear that both husband and wife cannotexecute the laws of Allah, there is no sin oneither of them on a payment given by a wifewho redeems herself”.

A hadith reinforced the above Qur’anicverse on similar case at the time of the ProphetMuhammad:

Narrated by Ikrimah from Ibn Abbas said:There came a wife of Thabit ibn Qays to seethe Prophet and said:” O Messenger of Allah,I do not reproach Thabit in any matters ofreligion and morals, but I cannot live with him.“ So the Prophet SAW said: “Do you endureto restore his garden? Said wife of Thabit: Yes.

Secondly, Optional: According Hanabilah,Khulu’ can also be meant legally sunnat when,the husband does not carry out the rights of God,for example, the husband had not been carryingout the five obligatory prayers, fasting in themonth of Ramadan etc., or if the husbandcommitted a great sin, such as committingadultery and drug addicts. Most other scholarsconsidered that for these conditions, Khulu’ is nolonger the Sunnat, but obligatory by Islamic law.

Thirdly, Forbidden: Khulu’ could beunlawful if it is done in the following twoconditions: 1) If the wife asks Khulu’ to herhusband without any cause and clear reason,whereas her household affair is fine, so that thereis no reason to be used the basis for a wife tosubmit Khulu’. 2) When the husband intentionallyhurt and did not give the rights of his wife with

21Wahbah al-Zuhaili, 480-481.22QS. al-Baqarah: 229.

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23Shaheh al-Bukhari, Hadith no. 4972, Vol. 5, 2022.



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the intention that the wife will submit Khulu’, itis also unlawful. If Khulu’ is happening, thehusband does not deserve to take ransom due tothe intention alone is wrong and sinful.

The Paradigm of Hadith in Sues for Divorce1. Realization of Sues for Divorce

Narrated by Ikrimah from Ibn Abbas said:There came a wife of Thabit ibn Qais to seethe Prophet and said:” O Messenger of Allah,I do not reproach Thabit in any matters ofreligion and morals, but I cannot live with him.“ So the Prophet SAW said: “Do you endureto restore his garden? Said wife of Thabit:Yes.24

The above Hadith describes about allowableof a wife seeks for divorce from her husband ifthere are lawful things to request. This kind ofdivorce is called khulu‘ or a redeem talaq thatexplains how wife of Thabit ibn Qays came tothe Prophet Muhammad explaining her desire todivorce from her husband due to her feelings offear on her husband’s unstable condition in thetruth.

Any kind of divorce which is in a conditionto give ransom or ‘iwadh can be done at any timeeither the woman is in sacred or menstrual period,because the sue for divorce is accountable tohappen by the will of wife. The realization of awife’s willingness like this, suggests that she iswilling and proposes a lawsuit to the husbandsbecause she cannot maintain her householdanymore.

In a narration by ad-Daruquthni whichexplained how the wife of Thabit ibn Qaysprocessed in front of Prophet Muhammad:

Ibn Juraih has told Abu al-Zubayr that Thabitibn Qays ibn Syammas has a wife namedZainab binti Abdullah ibn Abu Salul, for herwas given a plot of garden as dowry. But hehates her husband, then the Prophet SAWsaid: “Do you want to restore the garden tohim he had provided to you.” So she replied:“Yes and an extra”. Rasulullah SAW said:“No need extra, just his garden”. She said:“Yes”, Rasulullah SAW symbolically tookback the garden and released her on her way.After the decision came to Thabit ibn Qays,he said: “I accept the verdict of the ProphetMuhammad”.

The statute for which a wife may sue herhusband for divorce or releasing the bonds ofmarriage on the ground which is permissible byShari’a, but if a husband does anything that couldendanger the wife then, the wife deserves to suefor divorce, then it makes the husband got thecurse of God, as narrated in the following hadith:

24Shaheh al-Bukhari, Hadith no. 4972, Vol. 5, 2022. 25Sunan ad-Daruquthni, Hadith No.3629, Vol. 4, 376.

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From Abu Hurairah and Ibn ‘Abbas said: TheProphet was preaching at us before death andat the end of his sermon in Madinah ...... “andany wife who khulu` from her husband willalways be in the curse of Allah, Angels, HisMessenger, and people as a whole, then if theAngel of death down on him/her, he said: Informwhere the Hell is and in the hereafter he/she willbe said, “Go into the hell along with otheroccupants. It must be known that Allah and HisMessenger curse the wives who committedkhulu` for no good reason as well as Allah andHis Messenger curse a husband threatening hiswife until he asks for khulu` ... “

The hadith explains two things related toredeeming divorce; First, the wife asks for adivorce with khulu‘ but no right forces her to doso by law

(any wives whocommitted khulu‘ for no good reason) will getcondemnation of God, Angels and His Messengeras to be anathema. Secondly, a wife sues herhusband for divorces which is based on actionthat give harm or suppression over the wife sothat possibly harm her. The curse of Allah andHis Messenger is reversed to the husband asmention in a tradition ãäå(husband threatening his wife until he askedkhulu’). The harmful condition of a wife in generalmeaning includes irresponsible for the livelihoodphysically and mentally therein, for example, ahusband likes to slap his wife (playing the hand)as well as others.

The essence of endangering a wife is relatedto the facts of many cases or can also be the factscited in the trial court. Nevertheless, it always bereturned by reference to the guidance of theProphet Muhammad through the context “must

not endanger each other” either endangersthemselves or fellow human beings in forming aharmonious life.

Narrated by ‘Ikrimah from Ibn Abbas said:Rasulullah SAW said:” Do not harm and donot reply harm”.

(do not harm) means one of Moslemsshould not inflict danger (harm) on others withoutany clear reason and without any previouscriminal acts. While

(Do not reply to harm)is a prohibition of returning inflict of danger tothose who inflict danger to you. In other words,if there is someone who objurgated you, then donot reply to scream at him, and if there are peoplewho beat you then do not reply to hit him.However, demand your right on him before thejudge without the need to berate each other.28

Context of contested divorce or talaq is adivorce at once that seated charges before thecourt to get justice, so there is a reciprocal reply,namely doing dangerous thing to one anotherbetween spouses who have disagreed, and whosevows are still bound in the marriage bond.

2. Legality of Sue for Divorced

Narrated by Tsauban: Rasulullah SAW said:“Those any wives requested (demanded) herhusband for divorce without justifiable reasonthen the women are forbidden to smell ofheaven”.

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26Musnad al-Harits, Hadith No. 205, Vol. 1 (Madinah:Markaz al-Sunnah, 1992), 309.

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27Musnad Imam Ahmad Ibn Hanbal, Hadith No. 2867,Vol. 1, 313.28Yahya ibn Syarafuddin an-Nawawi, Syarh Hadis Arbain(Solo: al-Qowan, 2001), 215-216.29Sunan Abu Daud, Hadith No. 2228, Vol. 2, 235, SunanIbnu Majah, Hadith No.2055, Vol. 1, 662, and MusnadAhmad ibn Hanbal, Hadith No. 22433, Vol. 5, 277.



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This Hadith is an unequivocal expressionof the Prophet about wives who asked forseparation of their bond of marriage, but no causewas right and not in accordance with the rulespermissible by Syar‘i. The very scary threat thatcannot feel the delicious smell of paradise, inwhich every believer aspires to enter in and enjoysthe promise of God.

Narrated by al-Hasan: Rasulullah SAW said:“Surely women who conduct khulu` withoutany causes is the group of hypocrites”.

This hadith reveals that wives who ask forbeing khulu‘ by their husbands without relyingon acceptable reasons by law are categorized intothe group of hypocrites. Status of this Hadith isthe reinforcement of the previous Hadith on nobasis from Syar‘i. The phrase is a womanwho divorces herself with her wealth of herhusband’s arms without his willingness.

Narrated by Abu Qilabah, Prophet SAW said:“Those any wives requested (demanded) herhusband for divorce without justifiable reasonthen the women are forbidden to smell ofheaven”.

This hadith intentionally sets the similaritywith previous one, although the phrase “no goodreason” are different and .By the same goal and interpretation, it ispermanently legal ban on divorce withoutfoundation allowed by Shari’a.

Based on the above mentioned hadiths,divorce which is done by a wife on her husbandshould have let her backed up with lawful reason.If there is no foundation of justification fordivorce, the law essentially is forbidden, unlessthere is a justifiable reason from Shari’a.

The expression of the Prophet Muhammadon sue for divorce is address to khulu‘ law andmust be based on reasons permissible by Syar‘i.Here is the meaning of (without anyjustifiable reason) becomes vital in determiningthe angle of view about anything that becomes amajor cause of divorce. Whether such an abusivehusband applies suppression towards his wife etc.Asking for divorce without any justifiable reasonby Shari’a including a big sin that must beshunned and those who do this will come into thecategory of hypocrites.

Abdul Muhsin al-‘Ibad explained that themeaning “no justifiable reason” includes someessential elements:32

(It is impermissible by a wife asking for adivorce unless there is a case that already setand needed of her).

(Indeed, a wife who asks for divorce withoutany necessity, then she will get an appointmentwith threat of harsh).

(not permissible for a wife seeking for divorcefrom her husband unless there is a cause thatis recognized, such as the husband hates herattitude or there happens a bad associationbetween both).

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30Mushannif Ibnu Abi Syaibah, Hadith No. 19602, Vol. 5,271 and Musnad Imam Ahmad ibn Hanbal, Hadith No.9347.31Ibid., Hadith No. 19603.

32Abdul Muhsin al-‘Ibad, Syarh Sunan Abu Daud, Vol.12(Beirut: Dar al-Fikri, t.th), 299.

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Threats to the wife who asked for divorcefrom her husband is in the category of the essencein connection with the smell of paradise. Thephrase (then forbidden smell ofheaven on the woman) and also . (Willnot inhale the smell of paradise) is a very severethreat with logic; If the smell of paradise cannotbe reached how about fitting into it.

The paradigm of above Hadith Nabawiestablishes that a wife should not ask for a divorceor sues the husband for divorce her, or doingkhulu‘ without any justifiable basis from Shari’a.But if there is the basis or causes that can bejustified by Shari’a, the law becomes conditionalwhich may be mandatory, optional, the avoidanceof which yields merit but the performance ofwhich is not sinful (makrooh) or permissible only.

The book entitles Fayd al-Qadir al-Jami‘Syarah al-Shagir explains the meaning (justified reason) as:

(In a condition where a wife is highlydemanding and in need of shelter, like thecondition of fear of not carrying out God’slaws obligated on her through good andharmony relationships, so the aversion on herhusband would harm her).

Another book “Aun al-Ma`bud” explainedthat the purpose of or (withoutany justifiable reason); means there is an urgentcause she asks for divorce, while the word (something) is an additional word as amplifier.The phrase “forbidden for her to smell heaven”is a serious threat to a woman who asks for a

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33Zainuddin Muhammad al-Manawi, Fayid al-Qadir Starhal-Jami‘ al-Shagir, Vol 3, (Beirut: Dar al-Kutub al-Ilmiyah,1994), 178.

divorce from her husband without any lawfulreason from Shari’a, so the shape of the threat isthat the woman does not feel delicious smell ofheaven even though she enters into it.34

In addition, Sharh al-Sunnah claimed thatthe wife asked for a divorce redeemed (Khulu‘)to the husband is permissible as long as it is basedon the wife’s inability to live with her husband inthe right reasons. If the wife is not based on thejustified request, then the sentence

shows Makruh leaning with the cause ofdisconnecting marriage bond without urgentcause.35 Unlike al-Zuhaili Wahbah who states thatthe sue for divorce which is not based on the truereason is unlawful, on the basis of the threat didnot get the smell of paradise.36

The context of sue for divorce in the phrase (women who commit khulu‘

and quarrel in their argument are group ofhypocrites) indicates the act is a part of innerimmoral acts and physically iniquity.37

Narrated by Mu‘az ibn Jabal from the ProphetSAW said: “It is not a wife hurt her husbandin the world, except that of God demolishedyou. She is just a weak person who barelyleaves (goes to) to us.”

This hadith explains that the wife’s positionin the world is her husband’s friend to live a lifethat must by mutually respected. A tribute of a

,

, : "

: ,38

34Abu al-Thaib Muhammad al-Azim Abadi, ‘Aun al-Ma‘bud Syarh Sunan Abu Daud, jilid 6 (Madinah al-Munawwarah: al-Maktabah al-Salafiah, 1968), 308.35Al-Husein Ibn Mas‘ud al-Baghawy, Syarh al-Sunnah, Vol.8 (Beirut: al-Maktab al-Islamy, 1983), 185.36Al-Fiqh al-Islamy, 377.37Muhammad Abdurrahman al-Mubarakfury, Tuhfah al-Ahwazy Bisyarh Sunan al-Tirmizi, Vol. 2 (Beirut: MakbahIslamy, t.th), 272.38Sunan al-Tirmizi, Hadith No. 1174, Vol.3, 476.



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40

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39

wife towards a husband by not hurting him. Asue for divorce proposed by a wife using thereason sought out or that of false is one of theacts that hurt her husband.

Dealing with friendship reciprocity in honorbetween a husband along and his wife who livein love and respect, Rasulullah SAW explainedon how morality the husband against his wifeshould do is a choice;

Narrated by Abu Hurairah: Rasulullah SAWsaid: “Men of faith with their perfect believeis the best in ethic and morality. The best guysamong you are those who do the best to hiswife”.

Exploring the Hadith in the Context of Sue forDivorce

God put a power over men (husbands) forcommitting divorce, that is releasing a bond ofmarriage, and does not give the right to womento divorce or stripped bonds of marriage so that itis free as a wife which is subject to her husband.

Islam in this case does not put women inweak position and can be enslaved by men. Bygranting the women with sue for divorce on herhusband in the form khulu‘, fasakh or tafriq theyseem to be put in similar position. The fracturesof a marital relationship (syiqaq) which finallybe brought to the Religious Court in order to seeka solution, to find the solution between peace anddivorce.

The termination ties of marriage bond byjudge decision at the Religious Court aims atfinding the solution after trying to seek for peace(reconciliation) between wives and husbandsthrough their respective delegates. This could behappening if peace is not possibly reached withthe cause no longer cracks but has reached the

stage broke. The Syiqaq occurs due to thesecauses: 1) the husband and wife have a hardcharacter (stubborn), so both cannot be assembled,and each maintains an argument and withoutbudge. 2) the husband is an authoritarian, such asthe treatment of the husband on his wife with veryill-treatment until the mahabbah (love) of the wifeis faded and cannot be returned for which she isvery hard to be able to survive as a wife.

If we observe carefully the position of a wifebefore the husband is like between paradise andhell, and so does her husband before the wife.

Narrated by Busyair ibn Yasar al-Hushain ibnMihshan said, her aunt came to see theProphet Muhammad. So, when she completedher question, the Prophet asked him: “Do youhave a husband?” She replied, “Yes, I do.”He asked again, “ How is your attitude to yourhusband? “she replied, “I never reduce hisrights, except that I could not do it. Then theProphet said, “Look, your position in his side,indeed, he (your husband) is your heaven andhell”.

Paradigm of sue for divorce occurred atPekanbaru Religious Court through the contextof trial processes in divorcing civil law mostlyoccurred only by reasons specified by law. In thisregard there are two senses to understand that theterm “dissolution of marriage” and the term“divorce”. Divorce is one of the causes ofmarriage dissolution. The government ofIndonesia’s Act No. 9 1975 on the implementationof Law No. 1, 1974 about Marriage, as stated inArticle 19 says that there are six reasons that canbe used as causes of breaking the bond ofmarriage, namely: 1) Either party commits

39Sunan al-Tirmizi, Hadith No. 1195, Vol. 5, 5.40Amir Syarifuddin, Hukum Perkawinan Islam diIndonesia, 197.

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adultery or an alcoholic, junkie, gamblers, etc.,which have been hard to cure. 2) One party leftthe others for two years in a row withoutpermissible reasons from other parties and nolegitimate reason out of their personal abilities.3) One party gets 5-year sentence in prison or amore severe punishment after the marriage tookplace. 4) One of the parties committed atrocitiesor severe abuse that endanger others. 5) One partygets disability or disease due to inability toperform the duties as husband or wife. 6) Betweenhusband and wife continuous disputes andquarrels and no hope of living their household inharmony.

In the Islamic Law Compilation, the abovesix reasons added by two others, contained inArticle 116, namely: 1) Husband abuses ta’likthalaq (marriage treaty). 2) Conversion to anotherreligion that causes disharmony in the household.

Eight points of the reason for terminatingmarriage as stated in Act 1974 and the IslamicLaw Compilation is the cause permissibleaccording to the basic principles in case of endingor breaking down a marriage bond. Thebreakdown in the marriage means ending themarital relationship. The breakdown in themarriage depends in terms of who is willing tobreak the marriage. The Islamic law underlinesfour (4) possibilities for the breaking down:41 1)The breakdown of marriage is based on the Willof God through death. 2) Loss of marriage on thehusband’s will called talak (divorce). 3) Loss ofmarriage on the wife’s will called khulu’. 4) Thebreakdown in the marriage at the discretion ofthe judge as a third party called fasakh.

The context of sue for divorce is possiblybe at level number three and four in which a wifeis an instrument in demanding the cancellationof the marriage contract. The wife’s demands atthe Religious Courts through court trial processesin order a divorce is being dropped by a judge

includes a husband who leaves his wife for twoyears in a row. The husband does not providemandatory to the wife for three consecutivemonths, the husband hurts the wife’s bodyphysically, husband lets or does not care aboutthe wife for six consecutive months. The size ofthese demands are based on the presence of harmand it’s a mafsadah for the wife as well asdirecting her into the plunge from Allah (amongothers, committing philandering) and the wife’sposition is uncertain and float in vein as wastedby the husband.

Hadith which states that a husband is likeparadise and hell for a wife, and vice versa meansthat a wife is heaven and hell of a husband. Therole that should be raised is by framing domesticharmony with wise and intelligentcommunication. In this regard, ProphetMuhammad gave signs to be very clever toimprove women’s personality to show the natureof creation:

Narrated by Abu Hurairah RA: RasulullahSAW said: “Give the right last will againstwomen. Because women are created from arib and the most crooked rib is at the top. Ifyou (forced to) to straighten it, you will breakit. And if you let it (still in a state bent), then itwill remain crooked. Therefore, give right lastwill against women”.

In a real contextualization of sue for divorceand rule of law in Indonesia about the case whichis now associated with the thriving culture andcivilization regarding the accountability ofwedlock. Even the trend of life that leads to

41Ibid.

:

(

42

42Shaheh al-Bukhari, Hadith No. 3153, Vol. 3, 1212 andMuslim, Hadith No. 3719, Vol. 4, 178.



43

hedonism otherwise, both wife and husbandcannot be blamed 100 percent. Paradigm ofHadith in contemporary reality cannot beunderstood textually, but it should be analyzedon a contextual level, with reference to thetraditions of Prophet Muhammad SAW whichstates that a wife is like a prisoner of her husband:

Narrated by Sulaiman ibn ‘Amr ibn al-Ahwash: Rasulullah SAW said: “Give atestament to his wife in a good way, becausethey were (like) captive on your side. You haveno power over them in the slightest besides(wills over goodness), unless they commitheinous act openly. If they do, then leave themon the bed and beat them with a punch thatdid not hurt”.

The phrase (they were prisonerson your side or husband). It is explained in Tuhfahal-Ahwazy that the phrase

(likened a wife on the husband’s side as acaptive means to strengthen the power of ahusband on his wife) and (allhumility, calmness and wife submission).44

Syarh Riyadusshalihin explained that:

(Prophet has made parable of a wife as ahusband’s captive in order to put under theauthority of the husband).45

Implementation of the phrase “husband

captive” on his wife is not to denigrate women,but to establish and foster families who directedsakinah (safe), mawaddah (peace) and Rahmah(be endowed with).

To understanding words “demanding adivorce from her husband without the rightreasons” is the wish of Prophet Muhammad inorder the new formed households are bond witha valid marriage contract and it can be reached inaccordance with the purpose of marriage in Islam.Sue for divorce in the realization of the cause setslegal permissible; it cannot rely upon theplaintiff’s (wife) feeling or logic, so that thepermissible category can rise to the level ofcircumcision and compulsory when the divorcebecomes urgent. However permissible positionscan descend to the level of optional and forbiddenwhen breaking the bond of marriage is basedmostly on the despicable things, such as boredom,a third person, the social strata, life style andhedonism.

In the era where culture and civilization havechanged, intersect in household’s life until divorcecould be occurred with diverse reasons. Whetherthe divorce becomes urgent or not the referencemust be directed to law of mandatory,circumcision, optional, forbidden or just reach tothe permissible level only. For the analysis of anycases on processing sue for divorce, before givinga decision, it must always be trying to reconcilebetween the plaintiff and the defendant byappointing two persons to be Judges. This step isin accordance with the instructions of the Qur’an;

“And if you worry there will be disputebetween the couple, then send an Hakam ofhusband’s relative as well as that of the wife’s.

43 Sunan al-Tirmizi, Hadith No. 1163, Vol. 3, 467.44Muhammad Abdurrahman al-Mubarakfury, Vol.7, 411.45Muhammad al-Shaleh al-‘Utsaimin, Syarh Riyad al-Shalihin (Saudi: Maktab Salafi, t.th), 325.

46QS. al-Nisa: 35.

64

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«».

If the two Hakam intend to repair the couplecase, Allah undoubtedly gives guidance to thehusband and wife. Lo! Allah is Knower,Knowing”.

The word (dispute) in the above versemeans strife, discord and enmity because theattitude and direction of thinking of both partiescannot be compromised anymore. Squabbles in ahousehold can be called (dispute) if theextent of dispute between husband and wife canno longer be resolved. Thus, at least two criteriaof disputes in a household can be termed as a caseof syiqaq. First, mismatches on both sides withthe attitude of each of them no compromiseanymore. There happen prolonged bickering thatis no longer possible to unite the couple in a peacehousehold. Second, the strife happening betweenhusband and wife is the implementation of aserious brawl, so that each of them took a differentdirection.47

The contextualization (there is nogood reason) in a disagreement of a wife overher husband on the problem (dispute) hasgiven the idea that sue for divorce is reasonableand is acceptable by nature of the hadith.Whatever the reasons conveyed by the plaintiff(the wife) should be based on prolonged disputesin their marriage life and has reached the stagethat cannot be compromised.

Reinterpretation of the facts happeningtoday regarding reasons that are legal by Syar‘i isrelated with the investigation for proves on thedependent whether or not he has committedinfidelity, Sirri marriage, lack of attention andother case faced with reconciling betweenhusband and wife who have a basic principleshould divorce as last step. To achieveunderstanding of the meaning of (no

reason right) connoted with multiple frames thatmake every wife wants sue for divorce to thinktwo or three in the paradigm of tradition allowedby khulu, fasakh and tafriq qado‘i as well as onany other position denounce acts that are not reliedon grounds of Syar‘i.

The realization of a good relationshipbetween husband and wife is leant on the pointthat every servant of God has advantages anddisadvantages. Likewise, a husband and wife havedifferent temperament, but not to brawl.Advantages and disadvantages between thespouses serve as a cover; husband’s excess coversthe shortage of his wife and the excess of a wifeis used to cover the shortfall of husband.

Narrated by Abu Hurairah: Rasulullah SAWsaid: “Do not be a man of faith hate a believingwoman, when she did not like any of herhusband’s character (temperament), then shelikes the others, or otherwise.”

This Hadith tells us that everyone hasdifferent original properties from others and thecharacteristic is reflected in the attitude andtemperament of behavior. In fact, we would getone of someone temperament which may bedisliked, on the other hand, it must be realizedthat the person has another temperament that welike. Such a life may also be the life of a husbandand a wife which have faced temperaments thatthe spouse likes and that of which the spousehated, but the condition should have been usedas a complete mutually complementary.

ConclusionThe reality in connection with the above

Hadith Nabawi explained that sue for divorceissues between allowing and prohibiting by using

47Satria Effendi, Problematika Hukum Keluarga IslamKontemporer Analisis Yurisprudensi dengan pendekatanUshuliyah (Jakarta: Prenada Media Group, 2004), 115-116. 48Shahih Muslim, Hadith No. 3721, Vol. 4, 178.



references about law of khulu‘ relied on theprovisions of Prophet Muhammad’s tradition whoopened a permissible door for the wife to divorceredeem a lawsuit over her husband. The other sideof the Prophet Muhammad ban for a wife todivorce her husband without cause justified byReligion with the threat of not getting delights tothe smell of paradise. Instead the threats of gettingcurse from Allah directed by the ProphetMuhammad on any husband performs acts thatendanger his partner until she asked for a divorce.

The legality of the sue for divorce in thetraditions of the Prophet regarding the meaningof contextualization

(no right reason)with reference to the Hadith on prohibition ofcommitting harmful act because marriage is aworship and trust of Allah and the nature ofdisputes can tarnish affection. Disputes in ahousehold that fall into the category of “legalreasons” First, mismatches on both sides withrespective attitudes that would end with no longercompromise resulting in prolonged bickering thatis no longer possible to unite. Second, strife thathas occurring between husband and wife is theimplementation of a serious brawl, so that eachof them need to take different direction.

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THE LEGALITY OF DIVORCE IN THE PERSPECTIVE OF HADITH