By A. Faizur Rahman
June 08, 2017
Ever since the Attorney General told the Supreme Court that the government will bring in a comprehensive divorce law for Muslims if the court outlaws triple Talaq, some commentators have been arguing that the wider and more liberal right of divorce of Muslim women should not be taken away for the sake of judicial oversight of divorces.
Some of the Options
Before we go into the necessity for judicial oversight of divorces, the question that needs to be answered is: Do Muslim women really have equal right to divorce in India? Let’s examine some of the options that are spoken of as liberal rights of Muslim women.
This is not the equivalent of Talaq-e-Bid’a (instant triple divorce) where women can unilaterally divorce their husbands in one go without judicial intervention. In Faskh, the woman approaches the Qazi and it is he who annuls the marriage on her behalf provided he finds merit in her petition. Therefore, unless the husband’s unadjudicated unilateral right to Talaq-e-Bid’a is withdrawn, Faskh cannot be counted as an equal or reasonable option for Muslim women to dissolve their marriage.
Under the prevailing Muslim law in India, a husband can either pronounce Talaq himself or give this power to an agent. If the agent happens to be his wife, the delegated right is called Talaq-e-Tafweez. It is obvious here that insofar as the wife is concerned, this right is not her own. It flows from her husband. If he refuses to devolve it to her, she will not be able to divorce him. Moreover, even after granting Talaq-e-Tafweez the husband retains the right to Talaq-e-Bid’a which hangs over the wife’s head like the proverbial sword of Damocles.
In the Quran-based Islamic law the question of the husband delegating to his wife the power to divorce does not arise. She enjoys rights on a par with her husband under the dictum Wala Hunna Mislul Lazi Alai Hinna Bil Ma’aroof (Quran 2:228). In other words, asking women to secure their right to divorce through Tafweez would amount to forcing them to concede the legal superiority of their husbands as males, and their own inferiority as females. Talaq-e-Tafweez finds no mention in the Quran or any Prophetic Hadees.
Khula and Mubarah:
Under the present Muslim law, divorce at the instance of the wife is called Khula. It cannot be described as an unconditional or absolute right of the wife because it violates the legal parity given to Muslim women in the Koran by laying down the conditions that for the offer of Khula to be valid, a) it must be accompanied by a consideration (usually monetary) known as Evaz, and b) the offer must be accepted by the husband.
This interpretation is supported by the Compendium of Islamic Laws (CIL) published by the All India Muslim Personal Law Board (AIMPLB) in 2001. It states: “Termination of marital relation by the husband in consideration for a return agreed upon by the parties is Khula, whether it is through the word Khula’, or by Mubaraat, or by the word Talaq or any other of its synonyms.” (p.93)
It may be pointed out here that Mubarah is the only form of divorce in which the wife enjoys legal equality with her husband. But the AIMPLB, by equating it with Khula and Talaq, has made even Mubarah contingent on the husband’s consent.
As per the Quranic definition (in 24:6-9) lian is not a form of divorce. It is a kind of mutual swearing that averts punishment for adultery. According to the Koran, a husband who does not have any witnesses, except himself, to prove his wife’s adultery must swear by God four times that he is speaking the truth, and again for a fifth time invoking the curse of God on himself if his accusation is proved to be a lie. However, if the accused wife too goes through the same process of swearing to counter her husband, the punishment for adultery shall not be imposed on her.
The Koran does not elaborate on the effect of lian on the marriage. But the CIL states that after the mutual swearing, “the Qazi will effect separation between the parties, and it will amount to an irrevocable divorce”. (p. 88).
This clearly shows that lian is not a divorce at the instance of wife. Even if it is considered so, it not unilateral or instant like Talaq-e-Bid’a and is limited to cases involving accusations of adultery.
Khiyar al Buloogh:
This anachronistic doctrine is actually a tacit justification of child marriage and hence cannot be accepted as an option available to an adult Muslim woman to dissolve her marriage.
According to the Hanafi law treatise Fataawa al-Hindiya, the marriage contracted on behalf of a minor by any guardian other than the father and paternal grandfather can be revoked by the minor on attaining the age of puberty through Khiyar al-Buloogh or, the Option of Puberty.
It is sad to see Muslim theologians trumpeting Khiyar-Al-Buloogh as a progressive provision in Islamic Shariah even while justifying the marriage of minors and declaring that a minor girl’s marriage subsists till she invalidates it. They conveniently ignore the fact that marriage being a contract in Islam, a contract signed by a minor girl is legally invalid and hence not binding on her.
Strangely, the concept of Option of Puberty continues to find a place in The Dissolution of Muslim Marriages Act, 1939. Section 2 (vii) of this Act states that “a woman married under Muslim law shall be entitled to obtain a decree for dissolution of her marriage” on the ground “that, she having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated.” It would be interesting to examine the reconcilability of Section 2 (vii) with The Prohibition of Child Marriage Act, 2006.
Restoring Legal Equality
It is unbelievable that doctrines that deny equality to Muslim women and seek to perpetuate their legal inferiority are being presented as liberal out-of-court divorce provisions. Certainly, our courts should not be further burdened with the additional load of Muslim divorces. But what gets adjudicated in Alternative Dispute Resolution centres too cannot be based on gender-discriminatory provisions of the AIMPLB-endorsed law. Any law that violates the egalitarian principles of the Koran or the humane teachings of the Prophet cannot be termed “Muslim” law.
Therefore, the only way to restore the legal equality of Muslim women and pre-empt the state’s legislative interference in the Muslim Personal Law is for the AIMPLB to declare instant triple Talaq invalid with immediate effect, and make the Quranic procedure of Talaq gender-neutral. Social boycotts and no-triple-Talaq conditions in Nikahnamas (prenuptial contracts) will not remedy the legal inferiority of women under the prevailing Muslim law.
A. Faizur Rahman is an independent researcher and secretary general of the Chennai-based Islamic Forum for the Promotion of Moderate Thought.