THE constitution bench of Supreme Court of India will soon be pronouncing its judgment on the constitutional validity of the so-called triple talaq. The question of importance is: will the apex court’s ruling one way or the other put an end to the tumult on the issue? This is an issue that is consuming a lot of prime media and scholarship time and space.
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. While there are separate laws applied through due process and jurisdiction of courts for Hindus, Christians and Parsees, 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 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 Quranic procedure if the other party breaches it. 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-Bidah (bidah 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 practice of talaq was most certainly not introduced by Islam; it was rampant in the Arab society of the time. 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.
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 its history.
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-Bidah: ‘[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 and rediscover the main features of 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).’
Moin Qazi is the author of ‘Village Diary of a Heretic Banker.’ He has spent more than three decades in the development sector.
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