By Moin Qazi
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)]
India is currently mired in a war between theology and law as it tries to articulate an appropriate policy response to the controversial triple talaq issue. With the triple talaq already been declared invalid by the Supreme Court, the government’s haste in trying to criminalize it reeks of a misplaced agenda. Muslims have welcomed the judicial verdict and are themselves keen to build a cultural environment conducive to it to take firm roots. Wisdom demands that we wait and see how the law translates on the ground.
The resistance to the government’s move is rooted in the Muslim community’s fear that it would amount to an encroachment on their cultural and religious space and would set precedence for the undermining of their minority rights—part of the reason why the ruling was delivered with a hesitant 3-2 majority. Muslims feel that a progressive judgment of the Supreme Court is being used to formulate a regressive law.
The reason religion is so central to a Muslim woman’s rights in India is that there is no universal code which governs marriage, divorce, maintenance, inheritance-known as personal law. India has separate sets of personal laws for each religion.
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.
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 a 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. In view of this misperception, the word Talaq, which is actually a social safety -valve, has acquired an obnoxious connotation.
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 practised 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 the Quranic procedure if the other party breaches it. It allows for an exit when the marriage breaks down, but only under certain conditions. Talaq is expected to be exercised only under extenuating circumstances. 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 century 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 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 Gauhati 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 formalized in a specific time frame with the fulfillment 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 recognized by the Quran. Halala, as practiced in India, is clearly repugnant.
Most Muslim majority countries have outlawed the practice for years. 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 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
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 relocate 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 a serious introspection. 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 God has guided and those are the ones endued with understanding.” (Q39:18)