By Sultan Shahin, Founding Editor, New Age Islam
16 April 2017
A five-judge
constitutional bench of the Supreme Court is to hear petitions
challenging Muslim practices of triple Talaq, Nikah Halala and polygamy
from May 11. This is a great opportunity for much-needed reforms in
Muslim Personal Laws that previous governments beholden to Mullahs have
not been able to bring about. But fundamentalist Mullahs are prepared to
go to any extent to preserve their turf. They are holding conferences
after conferences to show their muscle. But they will not be able to
hide their theological infirmities.
In an affidavit, the
All India Muslim Personal Law Board (AIMPLB) has taken what can only be
called a bizarre doctrinal stand. It has told the Supreme Court that if
triple talaq mode of divorce was declared illegal, it would amount to
disregarding Allah's directions and rewriting of the Holy Quran to force
Muslims into committing sin. As almost the entire Muslim world,
including Saudi Arabia, Pakistan and Bangladesh have declared instant
triple talaq illegal, clearly in view of the AIMPLB; they have all gone
beyond the pale of Islam. Now Islam is a religion being practiced only
by some Indian Mullahs, so it would seem. This even amounts to declaring
Shias as well as Sunni Wahhabi sects like Ahl-e-Hadith apostate because
they consider triple talaq in one session as equal to only one
reversible talaq.
Even stranger is the
fact that AIMPLB consists of Ulema from Shia, Ahl-e-Hadith and other
Salafi-Wahhabi sects as well. Why are they not protesting at being
virtually called apostate groups which have “re-written Quran and forced
Muslims to commit sin, altering the very essence of the religion of
Islam” by a group of which they are members?
The most astounding
fact in the AIMPLB affidavit is the justification it seeks for instant
triple talaq from the Holy Quran. This has never been done before.
Everyone knows there is no justification for instant triple talaq in the
holy Quran. All protagonists of the triple talaq in one sitting have so
far only quoted Ahadith (so-called sayings of the Prophet, many of them
clearly weak and inauthentic, collected hundreds of years after the
demise of the Prophet) and juristic rulings of companions of the
prophet, or later jurists and theologians.
In fact, there is a
hadith narrated by Ibn Abbas (ra) that in the case of brother of Mutlab,
Rukanah bin Abd Yazeed who had divorced his wife three times in one
session, the Prophet (Peace be upon him) said “then it has the effect of
only one divorce, if you want to take her back you can.” Thus, Rukahnah
took her back.
The AIMPLB quotes the
following verses of the Quran as a proof for its contention that triple
talaq in one session is to be treated as three and irreversible
divorce: “Divorce can be pronounced twice: then, either honourable
retention or kind release should follow. .... Then, if he divorces her,
she shall not be lawful to him unless she first takes another for a
husband.” (Quran Al- Baqarah 2:229 and 230)
The trick here lies in concealing the verses that come before and after these verses.
Let us study the
Quran’s position on divorce and expose the AIMPLB’s game. Quran starts
with suggesting a cooling off period. “Those who intend to divorce their
wives shall wait four months; if they change their minds and reconcile,
then God is Forgiver, Merciful. If they go through with the divorce,
then God is Hearer, Knower. [Quran Al- Baqarah 2: 226--227]
The following verse shows why AIMPLB is seeking to hide it from the Supreme Court.
"And the divorced
women (after the pronouncement of the divorce) must wait for three
monthly courses... and their husbands are fully entitled to take them
back (as their wives) during this waiting period, if they desire
reconciliation." (Al-Baqarah: 228)
AIMPLB is also hiding
from the court the last verses of the series: “And so, when you divorce
women and they reach the end of their waiting term, then either retain
them in a fair manner or let them go in a fair manner. And do not retain
them to their hurt or by way of transgression; whosoever will do that
will indeed wrong himself.” (Al-Baqarah (2:231)
Not content with
this, God further encourages reconciliation, calling it better and
purer: “And when you divorce women and they have fulfilled their term,
do not prevent them from remarrying their [former] husbands if they
agree among themselves on an acceptable basis. That is instructed to
whoever of you believes in Allah and the Last Day. That is better for
you and purer, and Allah knows and you know not.” (Al-Baqarah (2:232)
Has the AIMPLB not
read the following verse either? “If a couple fears separation, you
shall appoint an arbitrator from his family and an arbitrator from her
family; if they decide to reconcile, God will help them get together.
God is Omniscient, Cognizant.” [Quran 4:35]
Where is the
opportunity for reconciliation that God demands in the Anglo-Mohammedan
law that goes in the name of Muslim Personal Law in India? Why is AIMPLB
seeking to hide these verses of Quran from the Supreme Court? Can’t the
Muslims and the court see the immoral, fraudulent nature of the
AIMPLB’s position?
Clearly, unlike the
un-Quranic view of AIMPLB, God gives Muslims full opportunity to
consider divorce patiently before engaging in the third and final
divorce as a last resort, when every attempt at reconciliation has
failed. Quran stands for a well thought out decision made only as a last
option for what the Prophet (pbuh) called “the most undesirable act
before God among those permitted.” (Sunan Abu Dawud, Bab Karahiya al-
Talaq, 1, 526. Hadith no: 2179).
No Muslim would stand
for a hasty decision in regard to something like marriage that the
Quran refers to as a ‘strong covenant’ (4:22). How can the Quran itself
allow this “strong covenant” to be broken in a matter of seconds?
In India, many a time
Muslims pronounce talaqs three times in a huff, either in a state of
anger, depression or drunkenness, and then regret later. Shia ulema or
those from Sunni Salafi sects like Ahl-e-Hadith that follow Quran will
tell them not to worry, just keep living with your wife as talaqs
pronounced in one session thrice or hundred times will have the effect
of only one talaq which is easily reversible. But Mullahs from AIMPLB,
which surprisingly contains Shia and Ahl-e-Hadith ulema as well, will
say that now the person concerned has no option but to take recourse to
nikah-e-halala, an absolutely vile and obscene practice prevalent only
among Indian Muslims now. This means that the “divorced” woman (actually
not divorced from the viewpoint of Quran) will be forced to “marry”
again, sleep with a stranger, often a local Mullah, for a few nights and
then get divorced again and marry her husband again to get back to her
previous life. All this for no fault of hers.
It is well known that
when someone dared to pronounce three talaqs in a row during Prophet’s
time, he flew into a rage and said: “How dare you turn my religion into a
joke while I am still alive.” He allowed him to take his wife back as
he was already penitent, treating the three talaqs in one sitting as one
reversible talaq. The second rightly guided caliph Hazrat Umar
instituted a system of punishing with 40 lashes anyone who pronounced
three talaqs in one sitting.
Though a supporter of
instant triple talaq, Mufti Taqi Usmani, a Deobandi scholar of Pakistan
admits in his well-regarded book Dars-e-Tirmidhi: “According to Imam
Abu Hanifa ([702--772 CE] to whose school of thought most Indian Muslims
belong and so call themselves Hanafi) and Imam Malik ibn Anas (711-–795
CE), this (triple talaq in one sitting) is haram (forbidden) and bid’at
(innovation). A narration of Imam Ahmad ibn Hanbal (780--855 (CE) also
supports this opinion. It is also quoted that the holy companions (of
the Prophet) like Hazrat Umar Faruq, Hazrat Ali, Hazrat Ibn Masuood,
Hazrat Ibn Abbas and Hazrat Ibn Umar (may Allah be pleased with all of
them) also adopted the same view.”
Quoting Muhammad bin
Muqatil al-Razi, Deobandi scholar Waris Mazhari points out that Imam Abu
Hanifa too supported the view that three talaqs in a row are to be
considered on reversible talaq. And so did the teacher and mentor of
Hammad bin Abu Sulaiman, Imam Nakhaee, who was the teacher and mentor of
Imam Abu Hanifa.
These were the
opinions of the first few generations of Muslims in 7th/ 8th/and 9th
century CE. But even 13th/14th century jurists of the stature of Ibn
Taimiyah, Ibn al-Qiyam, and the Shi‘a Imamiyah, consider three
pronouncements of the word talaq in one session equal to only one
reversible talaq. The same is true of several well-known modern scholars
like Rashid Rida, Muhammad Shaltut, and Yusuf al-Qaradawi, etc.
There have also been
jurists in this period who were prepared to take three talaqs in one
session as final. There were a variety of socio-political reasons
informing their decisions.
But today an
overwhelming majority of scholars in more than 25 Muslim states such as
Egypt, Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Yemen, Afghanistan,
Libya, Kuwait, Qatar, Bahrain, and the United Arab Emirates, are
following Ibn Taimiyah’s and Ibn al-Qiyam’s stand on this issue,
considering triple talaq as amounting to only one reversible talaq. So
did Pakistan half a century ago. Bangladesh has improved its laws
further after independence. Recently Sri Lanka has done the same.
The most pertinent
example is that of Pakistan’s Muslim Family Laws Ordinance, 1961, as Pakistani
Muslims, by and large, follow the same Hanafi fiqh as do most Indian Muslims. It
says:
Section 7, Talaq:
(1) Any man who wishes to divorce his wife shall, as
soon as may be after the pronouncement of talaq in any form whatsoever, give
the chairman a notice in writing of his having done so, and shall supply a copy
thereof to the wife.
(2) Whoever,
contravenes the provisions of sub-section (1) shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine which may
extend to five thousand rupees, or with both.
(3) Save as
provided in sub-section (5) talaq, unless revoked earlier, expressly or
otherwise, shall not be effective until the expiration of ninety days from day
on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice
under Sub-section (1), the Chairman shall constitute an Arbitration Council for
the purpose of bringing about a reconciliation between the parties, and the
Arbitration Council shall take all steps necessary to bring about such
reconciliation.
(5) If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the period mentioned in
Sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing
shall debar a wife whose marriage has been terminated by talaq effective under
his section from remarrying the same husband, without an intervening marriage
with a third person, unless such termination is for the third time so
effective.
Source: (http://lgkp.gov.pk/wp-content/uploads/2014/03/Muslim-Family-Laws-Ordinance-1961.pdf)
Unlike scholars in
other countries, Indian Ulema are arguing that “though pronouncement of
Triple Talaq in one go is undesirable but (it is) irrevocably
effective.” They are quoting this verse of the Quran in support: The
Quran itself declares, that: “Divorce is twice; then either to retain in
all fairness, or to release nicely. [Surah-Al- Baqarah 2:229]. In its
affidavit AIMPLB quotes Imam Bukhari (2, 791) to claim the following:
“it is clear that though pronouncement of talaq thrice at one go is
undesirable but in view of the aforesaid verse of the Holy Quran, it is
clear that three pronouncements, howsoever they may be made result in
valid dissolution of marriage.”
I would like to tell
the AIMPLB that this fait accompli argument just does not hold water in
view of the fact that God did not accept it in the case of Az-Zihar. In
order to give talaq indirectly, some Arabs in Prophet’s time used to
practice Az-Zihar. They would say that my wife is like my mother or
sister, thinking that this would lead to an indirect talaq. This
practice made God very angry. In Quran Chapter Al-Mujadila (58), verses 2
to 4, He calls this practice vile and falsehood, and a lie and
prescribes punishment for those who engage in such vile practice.
“If any men among you
divorce their wives by Zihar (calling them mothers), they cannot be
their mothers: None can be their mothers except those who gave them
birth. And in fact, they use words (both) iniquitous and false: but
truly Allah is one that blots out (sins), and forgives (again and
again). (Quran Sura Al-Mujadila (58), verses 2)
Clearly God does not
accept the fait accompli argument in the case of divorce by Az-zihar:
why should it then be applicable to triple talaq in one session? Our
ulema have now come to agree that the practice of instant triple talaq
is vile and abhorrent. But they don’t even prescribe any punishment for
the evil-doer?
Ulema around the
world have abandoned this practice, if at all it existed anywhere or at
any time. It’s only Indian Muslims led by AIMPLB who are still refusing
to bring their Personal Law in line with the Quran. AIMPLB itself calls
this practice bid’at (innovation) and mamnoo’ (prohibited) in its law
book Majmooa-e-Qawaneen Islam (Article 267). If it is bid’at (innovation
that started after the demise of Prophet Mohammad), in its own view,
how can it tell the Supreme Court that it is a practice supported by the
Quran, and that declaring it illegal would amount to rewriting the
Quran?
It’s time Indian
Muslims rescued themselves from the un-Islamic and self-contradictory
ways of their ill-informed, ill-intentioned, male chauvinist Mullahs.
And it’s time Supreme Court helped them do that.
---
Sultan Shahin is the founding editor of a progressive Islamic website NewAgeIslam.com.
Note: A slightly
shorter version of this article appeared first in FirstPost.com. This
version is available at:
firstpost.com/india/triple-talaq-row-mullahs-are-subverting-islam-and-misleading-the-supreme-court-3386432.html
7:24 AM
Moderate Islamist here
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