[In the light of Surah an-Nisa Ayah 35]
The arrangement described so far was to help tempers cool off within the privacy of the house keeping it restricted to the married couple. But, there are times when the family feud becomes long-drawn. It may be because the woman is temperamentally obstinate and contumacious, or it may be the fault of the man who may have been unjustly oppressive. Whatever it actually is, one thing is certain that the unfortunate tussle will not remain restricted within the four walls of the house; it will definitely spread out. Then as usual, supporters of one party will go about maligning the other with all sorts of accusations. This will cause tempers of parties to rise and what started as the disagreement of two individuals will turn into a confrontation between two families.
It is to block the road to this terrible discord that, in the second ayah, the Qur’an addresses government authorities of the time, the guardians of the parties concerned and their supporters, and the general body of Muslims, and suggests a decent method which would cool down tempers, shut out avenues of accusations and make a compromise between the affected parties possible, so that the dispute which, no doubt, could not remain restricted to the couple’s home, would at least be settled within their families and not go to a court of law to become public knowledge.
This particular method requires that concerned officials of the government or the guardians of the parties or a body of Muslims which has the necessary integrity, influence and authority should take charge and appoint two arbitrators to help bring about a compromise between the parties concerned – taking one arbitrator from the man’s family and the other from that of the woman. At both these places, the Qur’an has used the word, “hakam” for these appointees whereby it pin-points the necessary qualifications of these two persons, that is, they should have the capability to decide the dispute between the two parties; and this capability, as obvious, will be found in a person who is both knowledgeable and trustworthy.
In short, the rule that emerges from here is that a “hakam” or arbitrator from the man’s family and another from that of the woman should be appointed and sent to the husband and wife. Now, as for what they are going to do when they meet them and as to what rights they have in this matter – this the Qur’an does not determine. However, it does add a remark at the end:
which means: If these two arbitrators desire to set things right, Allah subhanahu wa ta’ala will help them bring about harmony between the husband and the wife. So, two things emerge from this sentence:
If both arbitrators have good intentions and genuinely wish to bring about peace between the dissenting couple, there will be unseen help from Allah subhanahu wa ta’ala and they shall succeed in their mission, and it will through their efforts that Allah subhanahu wa ta’ala will create love and harmony in the hearts of the couple. This leads to the conclusion that, in cases where mutual rapport is not restored, it may be because one of the arbitrators lacks perfect sincerity while pursuing the goals of peace-making.
The purpose of appointing these two arbitrators, as also understood from this sentence, is to bring about peace and amity between the husband and the wife and does not include anything beyond that. However, it would be something else if the parties affected by the mutual dispute agree to appoint these two arbitrators as their representatives and their attorneys in all respects in which case they would be admitting that any decision given by the two arbitrators jointly will be acceptable to and binding on both of them. Under this situation, the two arbitrators shall have absolute authority to decide their case. If both agree on divorce as the solution, they can affect a divorce. If they both decide that the women should be released under khul, a form of dissolution of marriage, the khul shall come into effect, and their decisions shall be binding on the parties. From among the pious elders, this is the position held by Hasan al-Basri and Imam Abu Hanifah. [Rul al-Ma’anai, etc.]
Cited in this connection is an incident which occurred in the presence of Ali radhiAllahu anhu. There too, one finds the proof that the two arbitrators referred to above do not have any intrinsic right other than that of making peace between the husband and wife – unless, of course, the parties concerned authorize them fully to decide as they deem fit. This incident, as narrated by Ubaidah al-Salmani appears in the Sunnan of al-Baihaqi and is being reported below.
A man and a woman came to Ali radhiAllahu anhu along with groups of people accompanying both. Ali asked them to appoint an arbitrator, one from the man’s family and another from the woman’s. when arbitrators were appointed, he addressed them both: “Do you know your responsibility? Do you know what you have to do? Hear me. If both of you agree to keep the husband and wife together and make peace between them, then do it. And if you come to the conclusion that matters cannot be set right between them or that they will not stay right later on, and both of you concur with the option that a separation between them is the expedient course, then do it.”
When the woman heard this, she said: “I accept this. Let these two arbitrators act in accordance with Divine law and I shall accept any decision they give whether it meets my wishes or goes against.”
But, the husband said, “Separation and divorce are things I am not going to accept under any condition. However, I authorize the arbitrators to ask me to pay whatever financial penalty they impose and let my wife return to me in peace.”
Ali radhiAllahu anhu said, “No, you too should authorize the arbitrators in the same manner as was done by the woman.”
From this incident, some mujtahid Imams deduced the principle that these arbitrators have an inherent authority to divorce as was done by Ali radhiAllahu anhu who asked the parties concerned to do that, while Imam Abu Hanifah and Hasan al-Basree have taken the position that, had it been an inherent power of the arbitrators to divorce there was no need for Ali to obtain the authorization from the parties concerned. Here, the very effort to seek the agreement of the parties is a proof of the fact that these arbitrators do not have such an inherent power. Nevertheless, they do become authorized if the husband and wife delegate the necessary authority to them.
This teaching of the Qur’an opens a news outlet of resolving mutual disputes, something which saves people from the botheration of going to courts and government officials and gives them an opportunity to iron out a good deal of their disputes and claims through family-oriented arbitration.
[Taken from Maaruf-ul-Qur’an by Mufti Muhammad Shafi Usmani]