By Debayan Roy
May 11, 2017
After a year of anticipation and a flurry of petitions, the Supreme Court began hearing the case on Thursday which could open the possibility of reforming the Muslim personal laws governing divorce, polygamy and re-marriage.
Jamiat Ulema-i-Hind, which is one of the primary respondents in the case, had recently told News18 that there can be no interference in the Muslim personal law “even if there were more than 5 crore supporting the plea of reformation.” Not only this, they had claimed that there were various ways to give divorce in Islam but a triple Talaq will not be invalid “even if given in a fit of anger”.
On the other hand, till Wednesday evening groups of Muslim women protested against the “inhuman” practice of triple Talaq. As the debate on whether the practice should be abolished in totality and whether it is sanctioned by Quran or not heats up, News18 tries to find out what the practice is all about and what the Muslim holy book says.
What Is Triple Talaq?
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 a 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’ (divorce as per a later formed mode of divorce which propagates instant divorce).
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 reunites.
However, even if this second 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. This third step is known as the Wazribu Hunna. However, 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 all these four steps have failed that a husband pronounces the first Talaq. The husband has to compulsorily wait for a wife's Iddah to complete before pronouncing another Talaq.
Not more than two Talaqs can be pronounced during the course of Iddah. Iddah is considered to be three menstruation courses. During these three monthly cycles, 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?
This instant Talaq is essentially ‘Talaq-e-Biddah’. ‘Biddah’ means innovation and essentially all Muslims are advised against introducing ‘Biddah’ in their religion. This practice of Talaq was first promoted by Caliph Umar, and is 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 not still spoken up 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 Quran 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 there are demands to abolish it.
Do 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. 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 husbands first, and somehow lacking in achieving gender equality in this regard.
Has Any Islamic Country Taken Up Reforms In The Practice Of Talaq?
Let’s begin with our neighbour Pakistan. Pakistan in 1961 had passed the ‘The Muslim Family Laws Ordinance’. According to this law, if a man wishes to divorce his wife, he will pronounce Talaq and approach the Chairman of the Union Council which is appointed by the state, and give him a written notice and forward the same to his wife. Within 30 days of the receipt of the notice, the Chairman will set up an Arbitration Council which shall consist of himself, a representative of each of the spouse, and the board would try to bring reconciliation. If any individual tries to bypass this legislation then they will be punished with simple imprisonment for a year or a fine which may extend to Rs 5,000 or both.
Another example is Morocco, which has a majority population of Muslims. They have the Moroccan Family Code (Moudawana) passed in 2004. The code aims at putting both husband and wife on the equal footing, thereby prohibiting the man from pronouncing divorce unilaterally except when the procedure is being supervised by someone.
The code also attempts to bring arbitration and conciliation between the parties concerned. The code further states that if a man chooses to still divorce a wife, then a divorce can only be granted only if the husband pays off all the due rights held by the wife and the children. Like Morocco, Algeria, Indonesia, Iran and Tunisia have similar legislations which do not recognise a divorce given by a husband unilaterally, and compel the parties to resort to a court of law.