Muhammad Yunus, New Age Islam
10 May 2017
(Co-author (Jointly with Ashfaque Ullah
Syed), Essential Message of Islam, Amana Publications, USA, 2009)
Age Islam has just published an interview of Legal Expert Faizan Mustafa under
the above caption. On close scrutiny of his responses, the Legal Expert
purports to evade the popular demand of constitutionally abolishing the custom
(common law) of triple Talaq and Halala on the basis that it some cases Supreme
Court has already declared it Invalid. This writer, who has done a number of
articles on this issue, strongly feels that these customs (common law) should
be constitutionally declared null and void. Hence, he is tabling this critique
of his responses.
To begin with the opening paragraph of the
article poses two unrelated questions on the assumption that the Supreme Court
declares triple Talaq and Halala unconstitutional:
i) Will the system of
Halala (instant divorce followed immediately by marriage with a new spouse,
then remarriage with the first spouse after the new spouse consummates marriage
and divorces her – all within a span of a few days) stand annulled.
ii) will it uplift Muslim
women economically and socially?
The answer is simple:
i) It will abolish the heinous
custom of Halala that, however few may be the instances, is immensely
oppressive of a woman, dehumanizes her by institutionally forcing her to have
sexual intercourse with a stranger, deprives her of the plethora of rights the
Qur’an accords her, causes her lifelong agony and shame and above all stands in
stark contradiction with the Qur’anic message.
ii) Since triple Talaq and Halala affect a small minority of Muslim
women, it will save a minority of women from its horror. Upliftment of Muslim
women as a whole is a totally different issue and is not contingent to any one
particular issue and not relevant in deciding the merit of the case to
declaring triple Talaq, unconstitutional.
Evaluation of the responses given by the
learned Legal Expert against questions posed:
Question: The Supreme Court has been petitioned
to declare triple Talaq unconstitutional. What does the word “unconstitutional”
Para one concedes that Article 13(1) of the
Constitution says that any law inconsistent or in contravention of the
fundamental rights shall be void to the extent of inconsistency or
contravention - though it mentions in the same breadth that the Constitution
has not expressly empowered the higher judiciary to adjudicate the matter.
Para two opens with a reversal of the
preceding claim and acknowledges that “the Indian judiciary, as custodian of
the Constitution and guarantor of the fundamental rights, has not only assumed
this power under Article 13(1) but held it to be the basic structure of the
Constitution.” However, after some technical discussion on definitions, it
purports to charge Indian Judiciary of “indulging in the strict scrutiny of
laws passed by competent legislatures.” The Legal Expert, however, fails to
recognize that regardless of the competence of the legislative authority, if a
Law, with passage of time, is found to cause severe violations of human rights,
the higher Judiciary that is entrusted with establishing justice and expunging
injustice from the society can review it, even if it concerns Personal Laws.
Para three claims that “personal laws and
customs are different.” This is not consistent with the universally accepted notion of “Common Law”
which is defined as “a binding custom or practice of a community : a rule of conduct or action prescribed
formally recognized as binding or enforced by a controlling authority.”
The fourth para purports to claim that
Shariat Act was passed in 1937 to ensure compliance with Islamic Shariat. But
it must be admitted that if any of its rulings, such as instant triple Talaq
and Halala directly and blatantly contradict the divine and eternal Sharia of
Islam – they must be annulled.
2. In that case, the question arises as to what constitutes Muslim
The first para begins with a confessional
statement that “Muslim Personal Law in India is not entirely Islamic law.”
After spelling out its basis, it declares “decisions given by British and
Indian judges, most of whom were non-Muslim” upheld triple divorce as valid. No
dispute over this response. But this technically accurate statement is followed
by a highly flawed claim in the opening statement of the next paragraph that
“Abu Hanifa established one of the five schools of Islamic jurisprudence.” This
is simply incorrect. Abu Hanifa (died 149 AH/766 CE), was one of the greatest
jurist of his era and the earliest among the great jurists of Sunni Islam,
notably, Malik ibn Anas (d. 179/795), Muhammad al-Shafi’i (d. 205/821), and
Ahmad Ibn Hanbal (d. 240/854). The law schools were established posthumously
around fourth century of Islam after the names of these great jurists. The
rulings of the followers of these jurists in the successive generations for
1000 years are appropriated to their respective schools. So when we say, it is
according to Hanafi Law, it does not mean that Imam Abu Hanifa introduced that
The Legal expert also contends that as we
cannot declare the works of John Austin and Manu as unconstitutional, the same
should apply for the Hanafi Law. But examples of John Austin and Manu are
irrelevant. Islamic Law is a juristic tradition – it is drawn on the cumulative
rulings of past jurists and its rulings cannot be attributed to the founder the
law school as explained above, while John Austin and Manu’s views were theirs.
Besides, Abu Hanifa advocated interpreting the sources of Islamic law (usul
al-fiqh) in response to the needs of the people at the time. So, if he were
alive today, he will only be happy to see the suggested reform of Muslim Personal
Law that goes under his name.
3. Given that in Shamim Ara case in 2002, the judiciary had regarded
triple Talaq as one Talaq, what is the significance of the present case
submission to annul it.
After summarily capturing Shamim Ara’s case
in the first paragraph, Legal Expert opines that “the Supreme Court may
reiterate its decision in Shamim Ara case and explicitly declare that three
pronouncements in one sitting will now be treated as just one revocable
divorce.” Although the suggestion amounts to declaring triple divorce as
unconstitutional, the suggested phrasing will still allow many Muslim men to
terrorize their women-folk with this sinful and oppressive Law (Custom) .
The third para talks about spelling out all
sorts of conditions in the ‘marriage contract,’ but in Islam the marriage
contract must not violate the basic tenets of the Qur’an, or else what is the
purpose and role of the Qur’an in a Muslim’s life. Triple Talaq and halala
stand in stark opposition to the Qur’anic message like adultery and incest and
cannot from any part of Nikah Nama
The next para again states: “Juristic
opinions given over 1,000 years ago cannot be struck down as unconstitutional.”
The truth is the opinions of the jurists were specific to their era and no
jurist of Islam claimed infallibility or expected his singular or collective
opinion to remain binding on the posterity until eternity. Islamic Law makes
this point crystal clear. Chapter XII, The doctrine of Ijma (Consensus) in
Islam by Ahmad Hasan, offers these clarifications:
1. Only the agreement of the companions is
valid; the agreement of the later generations is not worth consideration.
4. Ijma is valid
on condition that nobody opposes it in the generation in which it is reached.
In case anyone dissent, there would be no Ijma
9. If the
majority of scholars agree on an opinion and the minority differs with them,
ijma is not valid.
24. Ijma is an
opinion which reveals truth. It is immaterial whether the opinion is held by
one scholar or more.
Hence, there is no basis to regard an
opinion given over 1000 years as inviolable – without saying a word on how many
scholars contested it, or whether it represents the truth or whether it was
contested by others down the generation, or whether it is oppressive this day.
A term like “one revocable divorce” would be all Greek to most people…how to
explain technical terms involving the process of Talaq.
The Legal expert concedes that All India
Muslim Personal Law Board has now adopted the Qur’anic protocol for phased
execution of Talaq. It then explains the complementary notion of Talaq e Hasana and concludes: “if three divorces are given instantly
without the above mentioned seven steps, as also without any effort of
reconciliation through arbitration, it is called Talaq-e-Biddat or the “most
disapproved” form of divorce.” Thus the Legal Expert dismisses all his
arguments about upholding the rulings of 1000 years and acknowledges the
unlawfulness of triple Talaq.
… Why do Ulema and clerics insist on persisting with it?
The Legal expert plunges into exegetic
debate. Quoting Hadith and secondary sources to obfuscate or refute what is
clearly expounded in the Qur’an, and now reportedly adopted by All India Muslim
Personal Law Board, and summarily captured in my referenced article, he
gives the Ulema and clerics a benefit of doubt. He mentions some early reports
that allowed triple divorce, and others that strongly condemned, but
unfortunately all such reports were recorded some six to seven generations
after the actual occurrence of events and none of them is recorded in full
light of history and preserved verbatim as the Qur’an and therefore no such
report can overrule or contradict the clear pronouncements of the Qur’an, let
alone the pre-eminence of the Qur’an as the Final source of authority on all
The article concludes with a
self-contradictory statement that “the dominant juristic view holds triple
Talaq in one sitting to be valid, there are powerful dissenting voices in each
school of jurisprudence as well” but nevertheless suggests that “Indian Ulema
should consider adopting this alternative view.” However, his claim “the
dominant juristic view holds triple Talaq” pertains to the jurists of the past.
We are talking about this era and not the early centuries of Islam. How many
jurists of this era would endorse triple Talaq is a big question. Perhaps few:
only those juries who harbour deep hatred of Muslim women are likely to support
this grossly un-Islamic and oppressive custom (law) when viewed in light of the
present day ground realities.
The Jurists of Islam must know that in
Islamic Law only the best of past precedents are valid for any era and those
not relevant to the era or cause injustice to any individual or group must be
set aside. Hence, no matter which Imams, Caliphs or scholars approved of triple
Talaq, they approved it for their time – that is more than a thousand years
ago. They never claimed their rulings to be binding for the posterity for all
time – a point Imam Abu Hanifa made categorically as mentioned above in this
article. So let there be no dilly dallying in declaring constitutionally
invalid what is sinful, unlawful, oppressive and immensely dehumanizing to
women and gross violation of human rights.
1. AIMPLB Advocates Of Instant Triple Talaq
Are Gender Terrorists And Traitors Of Islam And May Be Sued For Human Rights
Violation Under Cover Of Religion
articles by this author on the subject:
Qur’anic Sharia (Laws) On
Divorce: Triple Divorce, Temporary Marriage, Halala Stand Forbidden (Haram)
Medieval-Era-Rooted, Qur’an-Conflicting Muslim Personal Law (Sharia Law) Must
Be Reformed To Avoid Injustices to Muslim Women – An SOS to the Indian Ulema
Ulema Who Insist On Retaining the Anti-Qur’anic Triple Talaq (Instant Divorce)
In Muslim Personal Law Are Sinners, Haters of Their Women-Folk and Criminals
and Must Be Resisted
Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and
a retired corporate executive has been engaged in an in-depth study of the
Qur’an since early 90’s, focusing on its core message. He has co-authored the
referred exegetic work, which received the approval of al-Azhar al-Sharif,
Cairo in 2002, and following restructuring and refinement was endorsed and
authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana
Publications, Maryland, USA, 2009.
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