Women’s Rights in Divorce from the Perspectives of Imami and Hanafi Jurisprudence: With Particular Reference to Contemporary Challenges

Abstract

Divorce, as one of the most important institutions of family law in Islamic jurisprudence, has far-reaching consequences for women’s legal and social status. Imami and Hanafi jurisprudence, as two major schools of Islamic jurisprudence, have established different rules concerning women’s rights in divorce; however, in the contemporary era, these rules have encountered challenges arising from social transformations and human rights discourse. This study aims to comparatively examine women’s rights in divorce from the perspectives of Imami and Hanafi jurisprudence and to analyze the extent to which each school protects women, as well as the challenges confronting such protection under contemporary conditions. This study employs a descriptive-analytical approach and is based on library research. The data were collected from authoritative jurisprudential and legal sources and contemporary scholarly studies and were analyzed through a comparative examination of Imami and Hanafi jurisprudence. The study also investigates the interpretive and ijtihād-based capacities of both schools in responding to emerging needs. The findings indicate that, in both schools, the principal authority to initiate divorce is vested in the husband; nevertheless, various mechanisms have been established to protect women. In Imami jurisprudence, institutions and doctrines such as hardship and distress (ʿusr wa ḥaraj), stipulations incorporated into the marriage contract, delegated authority to initiate divorce, and judicial divorce play an important role in protecting women. In Hanafi jurisprudence, khulʿ divorce, delegation of the power of divorce, and dissolution of marriage under specific circumstances are likewise recognized as protective mechanisms. Nevertheless, the practical implementation of these mechanisms in the contemporary era faces challenges such as the difficulty of proving hardship and distress, women’s economic vulnerability following divorce, child-custody issues, and tensions with certain human rights approaches. Both jurisprudential systems possess capacities for protecting women in divorce; however, the effective utilization of these capacities requires dynamic interpretation, reform of civil legislation, and attention to contemporary social conditions. Strengthening progressive ijtihād, enhancing women’s legal awareness, and promoting convergence between Islamic jurisprudence and modern legal systems may contribute to greater justice in divorce proceedings and more effective protection of women.