By Moin Qazi, New Age Islam
23 August 2017
Of all the
lawful acts the most detestable to God is divorce
–Prophet Muhammad
(This an authentic saying recorded by
Abdullah ibn Umar, a highly respected companion of the prophet in an
authoritative treatise "Divorce (Kitab Al-Talaq)" of Sunan Abu-Dawud
(Ref. 63-2173)
The Supreme Court on Tuesday struck down
the practice of instant triple talaq, calling it unconstitutional and in
violation of Article 14 of the Indian Constitution, which provides for equality
before the law. The five-member bench was divided 3-2 on the matter, with the
majority verdict striking the practice down. However, the expectations that a
Supreme Court verdict will clear the clouds surrounding the whole issue have
largely been belied. Apart from a fractured verdict the judgment shows the
conflict in the judicial mind. In fact in his dissenting judgment CJI Khehar
said that Talaq-E-Biddat or instant divorce
is an integral part of the Sunni community and has been practiced for a
1000 years
The SC said triple Talaq violates the
fundamental rights of Muslim women as it irrevocably ends marriage without any
chance of reconciliation. Instant triple Talaq, or verbal divorce, is practiced
by some in the Muslim community to instantly divorce their wives by saying
Talaq three times.
Justices Robinson Nariman, Uday Lalit and
Joseph Kurien ruled that triple Talaq is unconstitutional. Justice Joseph said
what cannot be true in theology cannot be protected by law. He added that
triple Talaq is not recognised by Qur'an and hence it couldn't be a practice to
be protected under religion .Justice Abdul Nazeer and Chief Justice JS Khehar
upheld the validity of triple Talaq. CJI Khehar asked the government to bring
legislation in six months to govern marriage and divorce in the Muslim
community...
The reason religion is so central to a
Muslim woman’s rights in India is that there is no universal code for Muslim
personal law, that which relates to marriage, divorce, maintenance,
inheritance, and custody India has separate sets of personal laws for each
religion governing marriage, divorce, succession, adoption and maintenance.
While much of the Hindu law overhaul began in the 1950s and continues,
activists have long argued that Muslim personal law has remained mostly
unchanged. Muslim personal law in India continues to remain in the domain of
the religious clerks. Two laws, the Shariat Act of 1937 and the Muslim Women’s
(Protection of Rights on Divorce) Bill (1986), ensure that Muslim women do not
fall under civil law in matters related to marriage, but remain under Islamic
law, as interpreted and administered by the Muslim clergy.
The history of codification in India has
been a contentious one and has never been addressed formally by the citizen
sector or government. A communally and
politically sensitive issue, it is hard for any non-religious / secular group
or the Government to take it up without being perceived as disrespectful of
Muslims. As a result, India continues to remain one of only few countries yet
to reform the Muslim Personal Law. By 1961, Pakistan reformed its Muslim Law,
and one of the reforms introduced in Pakistan was on polygamy and divorce
through arbitration. Similarly reforms in Tunisia and Turkey have led to the
abolishment of polygamy in those countries. Iran, South Yemen and Singapore
reformed their Muslim laws in the 1970s.
Triple Talaq is a contested Islamic way of
getting a divorce where a husband can dissolve a marriage in the blink of an
eye only by saying or writing the word Talaq - meaning divorce - three times in
a row to his wife. Example, by saying “I reject you”, "I divorce thee”. A
Talaq is unilateral divorce by a husband's oral declaration as against Khula
which is a divorce initiated on the application of the wife.
Quite apart from denying women's rights,
this custom has inherent absurdities. The moment a Muslim male utters
"Talaq, Talaq, Talaq", his wife becomes unlawful to him, even if he
has uttered those words under coercion, in a fit of rage, in jest or drunken
state and regrets his utterance the very next moment.
The only way out is for the woman to marry
someone else, consummate the marriage, get the second husband to divorce her
and then re-marry the first husband. This process is known as Nikah Halala and
is actually a deterrent for men against this practice.
Several scholastic understandings of
divorce within Islam do not support the notion of triple Talaq in its current
form and it is banned or not practiced in many Muslim countries, including
Algeria, Tunisia, Malaysia, Iran, Pakistan, Saudi Arabia, Turkey, Tunisia,
Algeria, Iraq, Indonesia and Bangladesh.
In Islam, marriage is a solemn contract (Meesaaqan
Ghaleeza) and both parties have equal rights to revoke this covenant in
accordance with Quranic procedure if the other party breaches it.
It allows for an exit when the marriage
breaks down but only under certain conditions. In Islam, marriage is a solemn
contract (Meesaaqan Ghaleeza) and both parties have equal rights to
revoke this covenant in accordance with Quranic procedure if the other party
breaches it. Talaq is expected to be exercised only under extenuating
circumstances.
It allows for an exit when the marriage
breaks down but only under certain conditions. The Talaq-e-Sunnah, the
only form approved by the Prophet, as an elaborate procedure that spreads over
three months and it is only after the completion of the third month that
marital relationship ceases. It is of two types: Talaq-i- Ahsan (most
proper divorce) and Talaq-i-Hasan (proper divorce).
The instant triple Talaq, which is
considered impulsive and hasty, is an innovation and therefore termed as
Talaq-e-Bidʿah - Bidʿah meaning innovation. It is
defined as a divorce which is pronounced thrice in one sitting when the wife is
in the state of purity (Tuhr). It was introduced by the
Umayyads in the ninth and subsequently appropriated by the jurists of the
Hanafi School, which is the most dominant of the four Sunni schools.
The position of India’s Supreme Court on
the issue has been quite categorical. In Shamim Ara vs State of UP, a judgment
of 2002, the Supreme Court had invalidated arbitrary triple talaq and held that
instantaneous triple Talaq does not dissolve a marriage. This position has been
time and again reiterated by Indian courts. The Supreme Court view is a
reiteration of the judiciary’s earlier views.
The Supreme Court reiterated the views of the Guwahati High Court, as
recorded by Justice Baharul Islam, (later a Judge of the Supreme Court of
India) sitting singly in Sri Jiauddin Ahmed Vs. Mrs. Anwara Begum, (1981) .He
observed that though marriage under the Muslim law is only a civil contract,
yet the rights and responsibilities consequent upon it are of such importance
to the welfare of humanity, that a high degree of sanctity is attached to it.
But in spite of the sacredness of the character of the marriage-tie, Islam
recognizes the necessity, in exceptional circumstances, of keeping the way open
for its dissolution. .
In 1971, Justice V. R. Krishna Iyer ruled
in the Kerala High Court that “the view that the Muslim husband enjoys an
arbitrary, unilateral power to inflict instant divorce does not accord with
Islamic injunctions. Indeed, a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce… It is a popular
fallacy that a Muslim male enjoys, under the Qur'anic law, unbridled authority
to liquidate the marriage… Commentators on the Quran have rightly observed—and
this tallies with the law now administered in some Muslim countries like Iraq
—that the husband must satisfy the court about the reasons for divorce.“
Justice Baharul Islam of the Guwahati High
Court took the same view in 1978: “In my view the correct law of Talaq as
ordained by the Holy Quran is that Talaq must be for a reasonable cause and be
preceded by attempts at reconciliation between the husband and the wife by two
arbiters — one from the wife’s family, the other from the husband’s. If the
attempts fail, Talaq may be effected.”
Both judges were later elevated to the
Supreme Court.
The
practice of Talaq was most certainly not introduced by Islam; it was rampant in
the Arab society of the time and Islam tried to gradually reform in a very
humane way. There is nothing in the law of Islam that suggests that the husband
is free to pronounce Talaq in an irrational or unreasonable manner. It allows
Talaq, subject to several conditions that are of a dissuasive nature, their
purpose being to discourage the husband from exercising his right without
careful consideration.
The Quran enjoins men not to act in haste
and to coolly think before deciding on Talaq, since “you may dislike something
about your wife but, maybe, God has put in her some good for you.” There is
nothing in the holy book that shows this provision is discretionary. Talaq is not just a word the mere utterance of
which will terminate the marriage, but a procedure which must be meticulously
followed. Only if all the prescribed steps of this procedure have been duly
undertaken will a marriage be dissolved. Unfortunately, traditional
interpreters of Muslim law give effect to a Talaq pronounced by a man even in
sheer violation of the true Islamic law and procedure for divorce, calling it
Talaq-ul-Bidat (innovative divorce). According to them, a Talaq-ul-Bidat is
“sinful but effective” — a strange proposition rendered into English as “bad in
theology but good in law.”
The truth is that the concept of instant
triple Talaq is alien to Islam as it goes against the very spirit of the
procedure of divorce laid down in the Quran. Even the Prophet, when he was
informed about a man who gave three divorces at a time, was so enraged that he
said: “Are you playing with the Book of Allah who is Great and Glorious while I
am still among you?”
The Quran lays down a three-tiered
calibrated divorce, keeping in mind human frailties. Divorce cannot be
pronounced in a single sitting and must be preceded by efforts of arbitration,
mediation, and reconciliation by mediators appointed by both sides who must
explore the possibility of reconciliation. It has to be pronounced before
witnesses and over three sittings over a period of three months. These months
are to allow the couple to reflect on their relationship and not come to a
hasty conclusion.
The first two stages give an opportunity to
the estranged couple to reconsider their decision and, if possible, reconcile
and resume their married relationship. Dissolution of marriage through divorce
is the last option when all reconciliatory measures have failed. It has to be
formalised in a specific-time frame with the fulfilment of the conditions
stipulated in the Quran.
As a first step, when there is marital
discord, the Quran advises the husband to reason (Fa’izu Hunna) with his wife
through discussions. If differences persist, they should refrain from any
conjugal acts till they settle their dispute (Wahjuru Hunna); if even
this fails, the husband is instructed, as a third step, to once again explain (Wazribu
Hunna) to his wife the gravity of the situation and to caution her that it
can become common knowledge and may not be in the interest of both parties.
As a fourth step, the Quran advises that if
even the third step fails, the fourth step of "arbitration" must be
followed. In this step, a member from each of the spouse's family is present
and the parties try to make amends in the strained relationship.
It
is only after all four steps have failed that a husband pronounces the first
Talaq. The husband has to compulsorily wait for a wife's Iddah (menses) to get
over to pronounce Talaq. During the three-month cycles, a man cannot give his
third Talaq.
The Quran prescribes that if a woman has
attained the age of menopause then the period of Iddah is three months, whereas
if a woman is pregnant, the period of Iddah would be till the child is
born or till the termination of pregnancy. If the parties are unable to
reconcile during Iddah, the final irrevocable Talaq can be pronounced which
extinguishes the marriage.
The Quran says:
“When you divorce women and they complete
their term (Iddah), do not prevent them from marrying their husbands if they
mutually agree on equitable terms” (Q2:232).
In other words,
after the expiry of Iddah, the parties are given the option of remarriage or
permanent separation - the separation
being the third, and final irrevocable Talaq to be pronounced in the presence
of two witnesses (Q65:2).
Keeping in view
the sanctity of the marriage bond and the gravity of the act of breaking it,
the Quran warns that once the parties choose to separate after the expiry of
the Iddah, they cannot marry again unless the wife takes another husband and he
divorces her (Q2:230).
This Provision Is Known As Halala
Halala is, in fact, a concept very different
from what it is erroneously believed to be. The rule takes care of the rare
eventuality of a thrice-divorced woman remarrying but ending up with a failed
marriage once again. It is certainly not meant to force a divorced woman to
suffer the indignity of sleeping with
someone else before returning to the man who has inflicted on her the cruelty
of unilateral Talaq not recognised by the Quran. Halala, as practiced in India,
is clearly repugnant.
In 1929, Egypt was the first country to
adopt a modern perspective held by scholar Ibn Taimmiyah (1268-1328) and
theologian Ibn al Qiyam (1292-1350), with regard to the personal laws on
marriage and family. Both Ibn Taimmiyah and Ibn al Qiyam declared that
repeating “Talaq” three times would only be considered as the first step in the
overall three-step process of divorce.
Indian Muslims would do well to adopt the
rules in Pakistan’s 1961 Muslim Family Laws Ordinance. It provides for an
arbitration council to attempt reconciliation and a 90-day period for retraction.
Talaq must be pronounced by a notice in writing and communicated to the
council’s chairman. The wife can stipulate for the right to divorce in her
Nikahnama or marriage contract (Talaq Tafuriz). Additionally, she has
the right to dissolve the marriage (Khula).
This is where Morocco has provided an
essential lead. Its new Islamic family law was produced with the full
co-operation of religious scholars as well as the active participation of
women. Every change in the law is justified - chapter and verse - from the
Quran, and from the examples and traditions of the Prophet Muhammad.
In 1943, Maulana Abul Ala Maududi, the
subcontinent’s leading ideologue, also opined against instantaneous Talaq -
or Talaq-e-Bidʿah: “[Triple divorce] is
an innovation and a sin leading to many legal complications. If people knew
that triple divorce is superfluous and even a single
Talaq would dissolve the marriage, of course, leaving room for revocation
during the next three months and remarriage thereafter, innumerable families
could have been saved from disruption.”
Muslims are now certainly responsive to
change and are trying to develop a more contemporary and humane interpretation
of Islam, and some countries are undergoing major transformations. More and
more Muslims now perceive those erroneous interpretations of Islamic law that
are glaringly unjust to women to be dangerously obsolete. And these include the
Ulema as well as intellectuals and the common Muslims.
For Muslims it is a good time to pause,
reflect, and attempt to re-locate the main features of, and re-discover, Islam.
They need to take stock, not because they have arrived at any significant stage
of the Islamic journey but because the sheer range of trajectories and
approaches, and consequent confusion, obliges them to attempt clarification.
The problem is not that there are too few answers but that there are too many.
To put it in the words of the Quran:
“Those who
listen to the Word and follow the best (meaning) in it: those are the ones whom
Allah has guided and those are the ones endued with understanding.” (Q39:18)
Related Articles:
Moin Qazi is the author of the bestselling book, Village Diary of a
Heretic Banker .He has worked in the development finance sector for almost four
decades.
8:05 AM
Moderate Islamist here
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