The Juridical Foundations of ‘Divorce’ in Imamiyah and Hanafiyah Jurisprudence (Strategies to Achieve a Single Legal System)

Although divorce is a very unpleasant occurrence in a couple’s life, it is inevitable at times and should happen when a man and his wife fail to reconcile with each other. This phenomenon has been a part and parcel of mankind’s collective life in spite of it being characterized by diverse cultural etiquettes. The divorce procedure suggested and offered by Shari’ah and civil codes is meant to prevent further harm and negative impacts on family members. The rules of divorce are generally agreed up by jurisprudents of all Islamic jurisprudential religions especially Hanafiyah and Imamiyah.  This article aims to examine these shared rules as well as certain secondary rules which both of these two major schools seem to have different opinions about. One such issue is the “innovational divorce” which includes divorcing a woman in menses and in postnatal bleeding, triple divorce, implicit or implied divorce, divorce in the state of cleanness after sexual intercourse, witness to a divorce, volition, free will and intention in a divorce, delegating the right of divorce to the wife, separation order issued by court when husband fails to provide his wife with maintenance (food, clothing and other expenses), common defects, particular defects etc. Findings show that most of the discrepancies originate in the jurisprudential principles which have not only resulted in differences between the two schools but also in discrepancies among Sunni jurists. Sunni scholars’ views being subservient to those of the Companions (Sahabah) and derived from analogical procedures, inauthentic narrations, juristic preference (istihsan), public interest and exegetic understandings from the Quran are the main causes of difference. Yet, the differences between the two schools of jurisprudence are not too deep and complex to make it difficult for jurisprudents to work out any solutions. Hence, relying on common reasons concerning the issue of divorce such as the existing explicit evidence as well as on the prophetic traditions in their general sense, the generality and universality of textual proofs, the scholars of the two schools would be needless of taking recourse to controversial arguments. In fact, a considerable part of the differences could be reconciled as such.  Thus, the controversial evidence and arguments are not overlooked but they could be used to serve as a prelude, not as independent reasons, to deriving Islamic laws from their sources. In addition, the traditional divorce (talaq al-sunnah) agreed upon by the two schools and discussed in their sources, can be the basic strategy for resolving differences. As per this criterion, only those divorces are valid and effective that are carried out at a time when the wife is not in her menses or going through post-natal bleeding or when it is not carried out in the state of cleanness after sexual intercourse and that a correct and clear formula is recited in the presence of two witnesses within a specific period of time. In addition, certain legal and juridical rules agreed upon by the two schools such as the principles of “no hardship”, “no harm” and “continued certainty” can well resolve the controversial orders which lead to unbearable difficulty or harm or which are not backed up by credible reasons. Obviously the inflexibility of Hanafi jurisprudence and the differences among their scholars pave the way for a change in the personal status of some Islamic countries as well as for application of Imamiyah and non-Imamiyah jurisprudence.