certifired_img

Books and Documents

Islam, Women and Feminism (26 Jun 2019 NewAgeIslam.Com)



Triple Talaq and Islamic Jurisprudence: What Islam Says on Laws of Divorce, an Explainer


News 18

June 21, 2019

The Triple Talaq bill has been tabled for a discussion in the budget session on Friday, where the decision to introduce it as a fresh bill in the Lok Sabha could be taken.

The bill had lapsed as it was introduced in the lower house of the Parliament and was pending in the Rajya Sabha, when the 16th Lok Sabha was dissolved last month. Bills that are introduced in Rajya Sabha and are pending there do not lapse with the dissolution of Lok Sabha. Bills passed by Lok Sabha and pending in the Rajya Sabha, however, lapse.

The Previous Narendra Modi-led government had promulgated the triple Talaq ordinance twice. A bill to convert the earlier ordinance, issued in September 2018, was cleared by the Lok Sabha in December and was pending in the Rajya Sabha. Since the bill could not get parliamentary approval, a fresh ordinance was issued in the February this year.

The bill against Triple Talaq has been facing stiff opposition from in the Rajya Sabha, where NDA doesn't have the sufficient numbers to push the legislation. The opposition has raised several objections to the provisions that award a three-year jail term for the husband for divorcing his wife through instant triple Talaq.

Earlier, the Modi government had tried to include the views of the Opposition by adding provisions of bail for the accused during trial. While the ordinance makes it a "non-bailable" offence, an accused can approach a magistrate even before trial to seek bail.

To better understand triple Talaq and Islamic jurisprudence terms like Talaq-e-Sunnah, News18 has prepared an explainer.

What Is Triple Talaq?

First, before understanding what triple Talaq is, we must understand what a ‘Nikah’ (Marriage) stands for in Islam. Nikah is essentially a contract laid down in a ‘Nikahnama’ drawn between the husband and the wife. This contract can have conditions and has a compulsory ‘consideration’ (Meher) to be paid at the time of the marriage. This consideration is paid by the man to the wife, and can be at time waived off by the woman as per her own will. So the basic difference between a Hindu Marriage and a Muslim Marriage is that for Hindus, marriage is a divine sacrament whereas for Muslims, it is contract drawn between the husband and the wife.

So, to explore the question of triple Talaq, one must understand that in Islam, everything is followed as per Sunnah (Deeds of the prophet). Hence, most Muslim women bodies opposing 'triple talaq’ want the Muslim bodies to adopt ‘Talaq-e-Sunnah’ (Divorce as per the Prophet’s sayings and Quranic dictation) and discard ‘Talaq-e-Biddah’ (a diluted form of divorce which propagates instant cancellation of marriage).

What is Talaq- e-Sunnah?

According to the Prophet’s sayings, giving “Talaq” to a wife in a fit of rage or anger is strictly prohibited. The Quran advises the husband to settle the differences through a mutual conversation as the first step. This step is known as the Fa’izu Hunna. If the differences continue between the husband and the wife, the parties should refrain from any conjugal acts till they settle their dispute. This step of physical separation known as the Wahjuru Hunna is prescribed so that the couple re-unites. However, when this step fails, it is recommended that the husband must attempt to talk to the wife, make peace with her and talk about the gravity of the situation. The third step is known as the Wazribu Hunna. However, the Quran advises that even if the third step fails, the fourth step of ‘arbitration’ must be followed. In this step, a member from each of the spouses’ family is present and the parties try to make amends in the strained relationship.

It is only after the failure of the four steps that a husband pronounces the first Talaq. The husband has to compulsorily wait for a wife's “Iddah” (menstruation) to complete before pronouncing another Talaq. Not more than two talaqs can be pronounced during the course of Iddah. Iddahs are considered to be the three monthly cycles. During these three months, a man cannot give his third Talaq. This had been envisaged so that the couple sorts out their differences in this period. 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, then the period of Iddah would be till the child is born or the termination of pregnancy.

If the differences still persist, then the third Talaq is pronounced, after which the relations between the husband and the wife are severed. Hence, the women groups who are claiming to revive this practice are only vouching for the fact that they get the maximum time to sort out their differences, which is often not possible in an ‘instant Talaq’.

What Exactly Is ‘Instant Talaq’? How Is It Different From Talaq-E-Sunnah?

Instant Talaq is when women are divorced through an SMS or over a mere phone call. It is essentially ‘Talaq-e-Biddah’.

The term ‘Biddah’ means innovation and Muslims are essentially advised against introducing ‘Biddah’ in their religion. This practice of Talaq was first promoted by Caliph Umar, but staunchly opposed by all the petitioners who have approached the Supreme Court for a reform in the case of triple Talaq. However, the Muslim Personal Law Board has yet spoken on the issue and claims that this can be sorted out internally.

Dr. Asma Zehra, an executive member of the All India Muslim Personal Law Board, was questioned about this during a recent press conference and said, “We have left it for our Ulema (scholars) to decide what is best for us.” However, this answer is far from the truth, as something which is not mentioned in the Qur’an or is a part of the Sunnah can never be justified as a lawful act by a Muslim.

Can a man marry his wife after pronouncing the third Talaq?

No. After the third Talaq, a woman is supposed to marry another man, consummate the relationship and only after following the original procedure of Talaq-e-Sunnah, will she be able to marry the former husband again. This practice is known as the ‘Nikah Halala’, and many Muslim women have condemned this practice as barbaric and it assumes more importance, in case the talaq is given as Talaq-e-Biddah. Women have often described it as a barbaric practice and demanded its abolition.

Do the women have any right to divorce the husband in Islam?

There are broadly two methods under which a wife can claim divorce. One is Talaq-e-Tafweez and the other is Talaq-e-Khula. Under Tafweez, the husband ‘may’ delegate his power to give Talaq to his wife or any third party. This right has to be in the form of a contract with conditions, like, ‘if a man marries again’ then there can be a divorce, etc. But a contract will not be without conditions or be absolute.

The second one is Khula. This is a divorce which is at the ‘request’ of the wife. In this case the woman has to make an offer of divorce to the man. The man must accept the offer with consideration, which often means the woman, has to give back the Meher taken during marriage. After these two steps, a Khula is granted. The woman often approaches a Qazi-court as well to demand a Khula from the man. There needs to be an execution of a Khulanama.

But something which needs to be broadly observed is that in both the cases, it’s only a request or a husband's wish to draw up a contract to give the wife an option to divorce him,thereby, putting the husband first and maligning gender equality in this regard.

Source: News 18

URL: http://www.newageislam.com/islam,-women-and-feminism/news-18/triple-talaq-and-islamic-jurisprudence--what-islam-says-on-laws-of-divorce,-an-explainer/d/118995

https://www.news18.com/news/india/as-parliament-debates-triple-talaq-heres-what-islam-says-on-laws-of-divorce-2197341.html




TOTAL COMMENTS:-   4


  • What is tahleel marriage?

    Answer

    Praise be to Allah

    Firstly:

    The husband is given the option of taking back his wife if he has divorced her (by talaaq) twice, and this is called revocable divorce. Allah, may He be exalted, says (interpretation of the meaning):

    “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness”

    [al-Baqarah 2:229].

    If he divorces her a third time, then she becomes haraam for him and it is not permissible for him to marry her with a new marriage contract and mahr unless she marries someone other than him, in a valid and genuine marriage, then he (second husband) consummates the marriage with her, then divorces her or dies and leaves her a widow. Allah, may He be exalted, says (interpretation of the meaning):

    “And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plain for the people who have knowledge”

    [al-Baqarah 2:230].

    It was narrated from ‘Aa’ishah (may Allah be pleased with her) that Rifaa‘ah al-Qurazi married a woman then he divorced her, issuing a third divorce. Then she married another man, then she came to the Prophet (blessings and peace of Allah be upon him) and told him that he did not have intercourse with her, and the Messenger (blessings and peace of Allah be upon him) understood that she wanted to go back to Rifaa‘ah, so he (blessings and peace of Allah be upon him) said: “No, not until he (the second husband) tastes your sweetness and you taste his sweetness [a metaphor for consummation of the marriage].”

    Narrated by al-Bukhaari (5011) and Muslim (1433).

    Secondly:

    It is not permissible for the man who issued the divorce, or for the woman, to use tricks to get around the laws of Allah and get back together by means of what is called a tahleel marriage. This kind of marriage takes several forms, including the following:

    1. where the husband who had issued the divorce, or the woman, or her guardian, hire a human “billy-goat”, and stipulate that he must marry the divorced woman, consummate the marriage with her, then divorce her, and they give him a sum of money in return for that!

    2. Where a man marries that divorced woman without making any agreement with anybody, but his aim is to make her permissible for the first husband, then he divorces her.

    Tahleel marriages are haraam and invalid, and those who do that deserve to be cursed.

    It was narrated that ‘Abdullah ibn Mas‘ood said: The Messenger of Allah (blessings and peace of Allah be upon him) cursed the muhallil and the muhallal lahu. [The muhallil is the one who marries a woman and divorces her so that she can go back to her first husband, and the muhallal lahu is the first husband] Narrated and classed as saheeh by at-Tirmidhi (1120); also narrated by an-Nasaa’i (3416).

    Al-Haafiz Ibn Hajar (may Allah have mercy on him) said:

    It was classed as saheeh by Ibn Qattaan and Ibn Daqeeq al-‘Eid according to the conditions of al-Bukhaari.

    End quote from at-Talkhees al-Habeer (3/72)

    Ibn al-Qayyim (may Allah have mercy on him) said:

    With regard to the Prophet (blessings and peace of Allah be upon him) cursing them [the muhallil and the muhallal lahu], this is either telling that Allah, may He be exalted, has cursed them, or it is a supplication for them to be cursed. This indicates that it is haraam and is a major sin. End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad (5/672)

    It was narrated that ‘Uqbah ibn ‘Aamir said: The Messenger of Allah (blessings and peace of Allah be upon him) said: “Shall I not tell you of a borrowed billy-goat?” They said, Yes, O Messenger of Allah. He said, “He is al-muhallil. May Allah curse al-muhallil and al-muhallal lahu.”

    Narrated by Ibn Maajah (1936); classed as hasan by al-Albaani in Saheeh Ibn Maajah.

    These hadiths indicate that tahleel marriage is haraam, and that it is a major sin; they also indicate that it is not valid.

    It says in al-Mawsoo‘ah al-Fiqhiyyah (10/256, 257):

    The majority of scholars – the Maalikis, Shaafa‘is, Hanbalis and Abu Yoosuf among the Hanafis – are of the view that this kind of marriage is invalid, because of the two hadiths quoted above, and because marriage for the purpose of tahleel comes under the same heading as temporary marriage, and stipulating that a marriage is to be temporary renders it invalid. So long as the marriage is invalid, no tahleel occurs thereby [i.e., it does not make it permissible for the woman to go back to her first husband after the second marriage ends]. This is supported by the view of ‘Umar (may Allah be pleased with him) who said: “By Allah, no muhallil or muhallal lahu will be brought to me but I will stone them.” End quote.

    Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allah have mercy on him) said:

    This is one of the most abhorrent kinds of falsehood, and one of the gravest kinds of corruption. He is in effect a zaani (fornicator or adulterer), because he did not marry her so that she could be a wife to him, and keep him chaste and stay with him, and so that he might hope to have children from her. No, rather he came as a borrowed billy-goat, to make her permissible for the one who came before him, by having intercourse with her once, then leaving her and finishing with her. This is the muhallil; his marriage is invalid and is not legitimate, and she does not become permissible for the first husband so long as (the second husband) married her with this intention and for this purpose. It is an invalid marriage and she is not permissible for him or for the first husband, because this is not a marriage, and Allah says (interpretation of the meaning): “until she has married another husband” [al-Baqarah 2:230]. This is a borrowed billy-goat, not a legitimate husband, and he does not make her permissible for the first husband .

    End quote from Fataawa ash-Shaykh Ibn Baaz (20/277, 278)

    With regard to the prohibition on tahleel marriage and its invalidity, it makes no difference whether the condition of tahleel is specifically mentioned in the marriage contract or if the agreement is made beforehand and not mentioned at the time of the marriage contract, or the second husband had that intention without anybody stipulating it or coming to some agreement to that effect with him. In all these cases it is a tahleel marriage and is haraam.

    Ibn al-Qayyim (may Allah have mercy on him) said:

    There is no difference of opinion, according to the people of Madinah, the scholars of hadith and the fuqaha’, whether that is stipulated verbally or by implicit agreement and intention, because in their view the intention behind contracts carries weight, and actions are judged by intentions, and in their view a condition was agreed implicitly is like one that was spoken aloud, because words are not sought in and of themselves, but because of the meaning to which they point. So once the meaning and intention become clear, the actual words do not matter, because they are just the means (of expressing what is in the heart) and in this case that aim has been achieved, therefore the rulings are to be based on the aims.

    End quote from Zaad al-Ma‘aad fi Hadiy Khayr al-‘Ibaad (5/110)

    The scholars of the Standing Committee for Issuing Fatwas said:

    If a man marries a woman on condition that it be for the purpose of tahleel, or he intends that, or they both agree to that, then the marriage contract is invalid and the marriage is not legitimate.

    End quote from Fataawa al-Lajnah ad-Daa’imah (18/439)

    Al-Bayhaqi narrated in as-Sunan al-Kubra (7/208) from Naafi‘ that he said: A man came to ‘Umar (may Allah be pleased with him) and asked him about a man who divorced his wife three times, then a brother of his married her without any prior agreement with him, so as to make her permissible for his brother – does she become permissible for the first husband? He said: No, unless it is a genuine marriage. We used to regard this as fornication at the time of the Messenger of Allah (blessings and peace of Allah be upon him).

    Shaykh Muhammad ibn Saalih al-‘Uthaymeen (may Allah have mercy on him) said:

    If the second husband has the intention that when he has made her permissible for the first husband he will divorce her, then she does not become permissible for the first husband, and the marriage is invalid. The evidence for that is that this is the intention of tahleel, so it is included in the curse. The Prophet (blessings and peace of Allah be upon him) said: “Actions are but by intentions, and each person will have but that which he intended.”

    End quote from ash-Sharh al-Mumti‘ ‘ala Zaad al-Mustaqni‘ (12/176, 177).

    Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him) listed all the forms in one place, and regarded them all as forms of tahleel marriage which is prohibited and invalid.


    By Dr.A.Anburaj - 7/2/2019 3:31:55 AM



  • nikah tahleel is a punishment for Muslim men of conscience.
    It has never been encouraged as you people lay stress on it 
    Conditional nikah tahleel is haram according to all four schools of Islamic jurisprudence 


    By Huzaifa - 7/1/2019 7:30:30 AM



  • Women have often described it as a barbaric practice and demanded its abolition. -------------------------------- The author tactfully has avoided the above question of Nikka Halala without any comments and judgement.Is he ready to issue a fatwa against Nikka Halala ? Is there any Islamic institution ready to issue fatwa against Nikka Halala ? Let the author post another write-up on the fate Nikka Halala and its relevance if any.Pro.Mohammed justified Nikka Halala .Hence it is possible for anyone to speak against Nikka Halala.The best way is to abandon Islam which is Arabian to the core and become Hindus.
    By Dr.A.Anburaj - 7/1/2019 4:31:11 AM



  • nO AMOUNT OF  logic could justify NIKKA HALALA which is inhuman and savage.

    By Dr.A.Anburaj - 7/1/2019 4:24:55 AM



Compose Your Comments here:
Name
Email (Not to be published)
Comments
Fill the text
 
Disclaimer: The opinions expressed in the articles and comments are the opinions of the authors and do not necessarily reflect that of NewAgeIslam.com.

Content