It is to block the road to this terrible discord that, in the second verse, the Holy 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 hep 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 Holy 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 Holy Qur'an does not determine. However, it does add a remark at the end: إِن يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّـهُ بَيْنَهُمَا which means: If these two arbitrators desire to set things right, Allah Almighty will help them bring about harmony between the husband and the wife. So, two things emerge from this sentence:
1. If both arbitrators have good intentions and genuinely wish to bring about peace between the dissenting couple, there will be unseen help from Allah Almighty and they shall succeed in their mission, and it will be through their efforts that Allah Almighty 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 goal of peace-making.
2. The purpose of appointing these two arbitrators, as also under-stood 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 repre-sentatives 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 effect 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 decision shall be binding on the parties. From among the pious elders, this is the position held by Hasan al-Basri and Imam Abu Hanifah. (Ruh ai-Ma ani, etc.)
Cited in this connection is an incident which occurred in the presence of Sayyidna ` Ali ؓ . 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 Sayyidna ` Ali کَرَّمَ اللہ وجھہ along with groups of people accompanying both. Sayyidna ` Ali کَرَّمَ اللہ وجھہ 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.' Sayyidna ALI کَرَّمَ اللہ وجھہ 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 Sayyidna ` Ali کَرَّمَ اللہ وجھہ who asked the parties concerned to do that, while the great Imam Abu Hanifah and Hasan al-Basri رحمۃ اللہ علیہما have taken the position that, had it been an inherent power of the arbitrators to divorce there was no need for Sayyidna ` Ali کَرَّمَ اللہ وجھہ 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 Holy Qur'an opens a new 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.
Arbitration in other disputes as well
Muslim jurists say that the appointment of two arbitrators to make peace between two parties in dispute, is not limited to the disputes between a husband and a wife. It can be profitably used in other areas of discord. In fact, it should be so used, specially when the parties involved are related to each other, because a court decision is a short-term solution of the basic problem. at happens after is that such decisions leave the germs of hatred and hostility in the hearts of those affected and which reapear after a passage of time in forms that are much too unpleasant. Sayyidna ` Umar, may Allah be pleased with him, had promulgated an order for his judges which said:
رُدُّوا القضاءَ بَین ذَوِی الاَرحَامِ حَتَّی یصطَلِحُوا فَاِنَّ فصلَ القَضَاءِ یُورِثُ الضَّغَأینَ (معین الحکام، ص 214)
"Send disputes between relatives back to them so that they make peace with the help of each other, as a court decision breeds heart burnings and hostility.
Although this Faruqi directive concerns disputes rising in between relatives, yet, the reason given in this directive (that is, court decisions tend to create hatred and hostility in hearts) is a reason which covers not only the relatives but non-relatives as well. Wisdom lies in saving all Muslims from mutual hatred and hostility. Therefore, the Muslim jurists are of the view that it is appropriate for officials and judges that they, before hearing the cases formally, should make an. effort to find a way out whereby the disputing parties get together and agree on mutual conciliation. (See al-Tarablusi, Mu` in al-hukkam p.214 and also Ibn al-Shahnah: Lisn al-hukkam).
Though brief, yet these two verses present a comprehensive system of family life which, if put into practice, could help eliminate a lot of disputes, hatreds and hostilities from the world. Men and women would live in peace among their families, secure against all those local dissensions which turn into all sorts of tribal, racial, national, even, international feuds.
In the end, let us recapitulate the great Qur'anic mechanism of how to quash family feuds - a virtual gift to the whole world:
1. Resolve family disputes within the house using one method after the other.
2. When this is not possible, government officials or the kinsfolk make peace between the disputing parties through two arbitrators, so that, the dispute does not go out of the larger family circle, even if it goes out of the house itself.
3. When this too is not possible and the matter goes to the court finally, it is the duty of the judicial authority to investigate into the case background of both parties and come up with a decision which is just.
It may be noted that by saying إِنَّ اللَّـهَ كَانَ عَلِيمًا خَبِيرًا (Surely, Allah is All-Knowing, All-Aware) warning has been given to the two arbitrators as well to the effect that they should keep in mind that no injustice or crookedness from them will go unnoticed for they shall be appearing before the Being who knows all and is aware of everything.
