Q. I was reading about a court case that considered valid a Muslim divorce made by SMS. Do you think this is correct (the two spouses don't need to be together when the divorce is pronounced)? I find very incorrect and unfair that a man can divorce a woman by SMS or by e-mail, especially considering the fact that is only the man who can divorce a woman. Do you have an opinion on this issue? Do you think a divorce of this type is acceptable Islamically? Don't you need two witnesses for it to be valid?
A. The issue of law and its interpretation is often -- as has been established by a look at history – applied according to the customs and outlook of those who govern. In many cases, this means that law is interpreted and viewed through the lenses of androcentrism. Regarding SMS divorces, this has to do with our interpretation of morality rather than what is legally correct. All the divorce requires is that the spouse be informed. Sometimes, based on the situation and possible acrimony, the use of modern technology might prevent the situation from getting worse. That being said, while we agree in principle with the LEGALITY of the procedure, we feel that the situation ought to determine its usage. We feel that it is better, under normal circumstances, to inform the spouse wherein there are witnesses present, preferably in the presence of a mediator. We issue this opinion on the supposition that the SMS data is indubitably from the spouse. In a situation where there is doubt, or the possibility of hacking and sending false messages, we feel that this should not be allowed. In a matter as grave as divorce, we feel that there ought to be (1) no doubt as to the spouse being of sound mind in issuing the statement, (2) that there be no coercion from outside sources and, (3) the utterance being pronounced/written is done in such a manner that there is no doubt as to its source.
The foregoing conditions would seem to deny the use of most electronic devices. If such devices are used, were we in charge of the legal process, we would require an affidavit of witness to the fulfillment of the aforementioned conditions. The Qur’an was revealed to a patriarchal society and addressed the people in norms they understood; the problem is that the male interpreters have deemed those norms to be constant and immutable, granting the right of divorce to the man only. This is patently wrong. Classical Islam knows the process of ‘khul' where the woman can divorce the man. The male jurists put into practice many safeguards, i.e., that she do so under the supervision of a qadi, etc. It would seem that in modern day practice, the divorce, even when uttered by the male, should be likewise. Our position is that the woman has the right to issue the khul without the presence of a qadi, but in the presence of a mediator or witnesses.
Your reasoning is commendable for it manifests the RELIGIOUS-minded thinking; unfortunately however, in the process of law, morality and reflection upon the moral thrust of scripture are often forgotten. We think that this is precisely what Jesus was against and why he talked about the spirit of the law rather than the letter of the law. Muslims who ought to have learned from Jesus’ example have, unfortunately, become fettered by a legalism that might be compared to fiqholatry -- the worship of law rather than of God. May God guide us to do that which is right.
Posted August 9, 2009