By Faizan Mustafa
July 10, 2017
The judgment in the triple divorce matter may be delivered soon. There were some interesting questions from the bench. A question that was not answered with sufficient clarity was how can triple divorce be sinful yet legal. The distinction between “law” and “morality” is taught in the first semester of LLB. The distinction between “what law ought to be” and “what law is” is well known. The Indian Constitution’s Preamble pertains to the realm of “ought to be”; its main part pertains to “what the law is”.
Take the example of adultery. In India men are punished for adultery but women are not. Is adultery not an example of something sinful yet legal in most Western countries? Similarly, homosexuality or same sex marriages may be considered by many to be sinful but they are legal in a number of jurisdictions. The concept of “sin” draws on blind beliefs based on morality and no court can make something pious if a religious sect considers it sinful. At the outset, we must understand that Islamic law is a jurist-given system of rules. Most of its sources are not divine. Only the Quran is divine and the Prophet, though a human being, was divinely-inspired. There are very few verses in the Quran which actually lay down law. Quranic verses are vague, general and, at times, contradictory and extracting law from them is difficult. They have to be read along with other sources such as the sayings and doings of the Prophet, consensus amongst the learned, customs, and analogical deductions. Public interest also plays a role in such a process. The text of the Quran may not, in all situations, tell us the rules of law for all the schools of Muslims.
There is a divergence of opinion amongst Islamic jurists which means that there are several schools of Islamic law. Every Muslim has a right to follow a school. He is also free to not follow any school. One may also cherry-pick rules from different schools. In India, most Muslims follow the Hanafi School. The controversy over instant triple Talaq stems from the fact that this school deems this practice as valid.
Article 26 of the Constitution guarantees freedom “in matters of religion” to not only “every religious denomination” but also to “to any sect thereof”. Thus, the Hanafi school enjoys constitutional protection. Since in the case before the Supreme Court the dispute is about Hanafi law (Shayara Bano is Hanafi), the court should ideally examine authoritative Hanafi books such as Hedaya and Fatwa-e-Alamgiri to investigate the validity of triple divorce.
The Hanafi-dominated Muslim Personal Board does not have the courage to say that under the law of the school, we need to primarily look at the opinion of Abu Hanifa and his two disciples, Imam Yusuf and Imam Mohammad, who developed the jurisprudence of this school. In so far as looking at the source of law for the Hanafi school is concerned, the Quran is not the opposite repository — though it is the divine book and held sacred by those adhering to the school. The opinion of leading jurists of the school is what matters. They imitate the jurists of their school and thus their reluctance for reforms.
Denominational freedom, both in Islam and under the Constitution, does permit strange beliefs. Thus Muta or temporary marriages are valid for Shias but absolutely sinful under Sunni schools. Ahmadiyas, who have been held as Muslims by our courts, do not accept the finality of Prophet Mohammad — the core belief of other schools. The exalted status of Saiyedna or Dai is legal under the Bohra School but sinful under other Shia schools and all Sunni schools. Some Muslim sects even believe in the 10 incarnations of Vishnu and follow classical Shastric Hindu law.
Even within the Hanafi School, something may be sinful yet legal. Thus, if a person makes a gift of his entire property in favour of one of his children to the exclusion of others, such a gift is sinful but valid. Even the Prophet’s strong disapproval cannot make an action illegal under the Hanafi School. Though the Prophet has expressed his displeasure on bequeathing property to one child while excluding others as well as on instant triple Talaq, both practices remain valid under the Hanafi School.
The issue, thus, is not whether triple divorce is an essential practice of Islam but whether it is an essential practice of Hanafi School. In my opinion, it is not. But my opinion or my opposition to triple divorce is not under dispute.
The real problem which the court needs to appreciate is that once there is triple divorce, the Hanafi school regards resumption of the matrimonial relationship between the divorced couple as both sinful and illegal. The judgment of the court may make such a reunion legal but if illiterate masses, neighbourhood and relatives continue to regard such a reunion as sinful and illegitimate, we will be creating more problems for the couple and their children.
In fact, in one such situation the wife went to the Delhi High Court (Masroor Ahmad case) with charges of rape against the husband. Thus striking down triple divorce as unconstitutional or holding it un-Islamic in itself will not help. We must educate people and the Board must ensure that all divorces henceforth happen as per the Quranic procedure. The best solution to remove the menace of triple divorce under the Hanafi school is to order the incorporation of an explicit condition in the Nikahnama that there shall be no instant triple divorce and the wife too will have a right to divorce.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad.