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Supreme Court's Question Is Relevant: How Come A Pre-Islamic Arabian Custom Is Fundamental To Islam In India?

By Ghulam Rasool Dehlvi, New Age Islam

15 May 2017

"[Some] Schools of thought [in Islam] say that triple Talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims," a five-judge Constitution bench, headed by Chief Justice JS Khehar, said on the second day of continued hearing on the issue, as reported in TOI.

As a matter of fact, most Sunni Islamic clergy today consider triple Talaq within the ambit of Islamic jurisprudence. But the Shiites equate the three pronouncements of "Talaq, Talaq, Talaq" with Talaq al-Wahidah (one Talaq) even uttered in one sitting. Inevitably, this contention has been one of the hottest issues of dissent between the Shiites and Sunnis.

With the Supreme Court hearing the petitions on the burning issues of triple Talaq and asking some very pertinent questions in this regard, the fire is fuelled by the Sunni clergy resorting to the misconstrued texts of Qura’n and Hadith to legitimize the vile custom of pre-Islamic Arabia in modern India. 

In an effort to examine whether the practice of triple Talaq which exists today only among India’s Muslims and is banned in 22 Muslim countries, is fundamental to Islam, the Supreme Court has done well to have raised the fundamental question. But at the same time, Indian Muslims’ self-imposed custodians have embarked on their run-of-the-mill mission.

The problem with common Indian Muslims including their womenfolk is that whether the SC verdict comes clearly crashing down the mullahs’ ambitions, their theological decrees and Fatwas will continue to be sold out. A clear contrast between the actual renditions of the divorce-related Quranic texts and their distorted meanings misconstrued by today’s short-sighted Maulvis can be seen in an earlier article in Firstpost. This comparative study has also shown how the concept of Halala (marriage of his former wife to another person in a bid to reclaim his reunion with her), which has fully different connotation in the Quran (2: 230), is grossly misconstrued and ill-practiced in the Muslim society.

So far condemnations galore from the Muslim clergy against the apex court’s questions. They view the central government’s constant and seemingly committed stance on the eradication of the ‘evil’ from the society as nothing short of a political gimmick. Now when they have miserably failed to scrutinize their pro-triple-Talaq position in the light of Qur’an, bizarre social justifications of the custom are coming from the various clerical circles.

Most recently, Maulana Syed Jalaluddin Umari, the president of Jamaat-e-Islami Hind and vice president of All India Muslim Personal Law Board (AIMPLB) came up with an untenable premise to buttress his theoretical justification for the survival of triple Talaq in the society. Expressing an apprehension over the ‘efficacy’ of banning triple Talaq, Maulana Umari stated while speaking at the monthly press meet of Jamaat-e-Islami Hind at its headquarters in Abul Fazal: “Banning triple Talaq will not benefit Muslim women. Even if tripe Talaq is outlawed, those who want to trouble their wives will still continue to do so. They will stop giving conjugal rights to their wives. This will lead to many complications and jeopardize the woman’s stature and dignity’’. Maulana Umari reiterated that ‘’the problem of divorced Muslim women has been blown out of proportion and statistics don’t support the claim of this problem being endemic within the Muslim community”.

But the contention on all such clerical pronouncements is: if Muslim women suffering from the instant irrevocable divorce are not all that victimised, then why some of them went to the extent of invoking the Hindu mythological figures, asking for a divine intervention for the end of triple Talaq, as reported in The Times of India?

Even if we consider that triple Talaq or the practice of polygamy among Muslims are less than what is being widely spread by the Islam critical, why does it prevent Muslims from an honest self-reformation and introspection? Regrettably, nothing has changed about the obsolete stand of the Muslim law board or the Jamat-e-Islami of India with regard to the contentious issue. The basic and baffling problem lies with their medieval postulate that whatever they have inherited from their predecessors (Salaf) is actually the best ‘puritan’ part of Islam in their view. Any creative rethinking (Ijtihad) in the ‘divine’ and ‘immutable’ jurisprudence of the Shariah would be tantamount to Biddah (or Bid’at)—deviance from the correct path in Islam. Interestingly, an act of Biddah is much despised among the die-hard followers of the Salaf. But when it comes to the Biddah in Talaq, this vehement opposition to the Biddah erodes the clergy’s jurisprudence.

While the 'Talaq-e-Sunnah' enjoins a prolonged process of divorce in a gradual and rational way as per the Quranic and Prophetic dictations, 'Talaq-e-Biddah' or instant triple divorce, is a pre-Islamic Arabian practice which was not sanctioned by Islam or Prophet Muhammad. But regrettably enough, the Qur’anic verses and particularly Hadith literature texts are particularly misconstrued to indoctrinate the traditional Indian Muslim women into believing that Triple Talaq is something central in the Qura’n and fundamental to Islam, and that their true custodians are the Ulema who have to be approached, and not the government or court, in the ‘religious’ matters like Nikah (marriage) and Talaq (divorce). A verse from the Qur’an is often recited before the gatherings and campaigns are started by the Muslim clerics protesting for the ‘right to triple Talaq’:

“We sent only men as Messengers towards whom We sent Our Revelations. So if you yourselves do not know (anything), then ask the Ahl-e-Zikr—people of knowledge or remembrance” (Surah an-Nahl, 16:43, holy Qura’n).

Ironically, the present-day Ulema in India strongly believe themselves to be the Ahl-e-Zikr. But when they are approached by the Muslim women in the serious matters of life and religion, their decrees (or Fatwas) remain rooted in the medieval theological underpinnings, which are often mired in the pre-Islamic Arabs’ customs of Jahiliyah (era of ignorance). Triple Talaq’s place in the medieval Islamic jurisprudence is exactly the case in point.

But the Islamic clergy, while boasting of their Qur’anic epithet of Ahl-e-Zikr, have cunningly preached the gravest misgiving on the Islamic viewpoint of Triple Talaq; that it is one of the fundamentals of the Islamic law enshrined in the Quran. A far more negative role they are playing now is that they are tarnishing the image of Islam and the egalitarian message of Quran by misleading the Muslim women who work with them. 

In a crazy bid to flaunt that Muslim women are with them as staunch supporters of their standpoint on triple Talaq, they have indoctrinated the women body members into flogging the fictions which have no basis in the Quran or Sunnah (Prophetic traditions). A grievous instance was portrayed by the Jamat-e-Islami Hind. Atiyah Siddiqui, the Jamat’s secretary who urged Muslim leaders not to politicise triple Talaq, maintaining that the government ‘unnecessarily blows triple Talaq and polygamy out of proportion’ has shocked many with her justification of tripe Talaq’s legality. She stated: "These practices have been in Islam since the beginning. Why was there no hue and cry (about it) so far? Why did this happen all of a sudden?”.

Both the court and the Ulema would do well to carry out a rigorous research on how rampantly the triple Talaq as a vile custom was prevailing in the era of the pre-Islamic Bedouin Arab, something which is highly frowned upon in the Islamic history as an ‘age of ignorance’ (Jahiliyah). Arabs could deny their wives all rights by simply stating, “You are to me like my mother’s back”, as the Quran critiqued it in its verse: 58: 2.

Now it is left to the Muslim community’s discretion whether it would want to keep a pre-Islamic custom as central to Islam’, going in a stark contradiction to the Quranic spirit or stand up to an honest introspection with an onslaught on the nefarious pre-Islamic Arabian patriarchy revived in India.

Another pertinent question that the supreme court has put up in its hearing is related to the legality of triple Talaq in other Muslim or Muslim-populated countries. The SC has asked Salma Khurshid, former Union minister who is assisting the court in his personal capacity, to prepare a list of Islamic and non-Islamic countries where triple Talaq has been banned. The bench learnt that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple Talaq as a form to dissolve marriages. Consequently, the SC observed that the practice of instant thrice divorce is the 'worst' form of marriage dissolution. Here is a brief light on the reforms introduced in several Islamic countries regarding the issue of triple divorce in one go:

Most Middle Eastern and African Muslim countries such as the UAE, Kuwait, Qatar, Bahrain, Egypt, Yemen, Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Afghanistan, Libya and Tunisian have abolished the practice while formulating their matrimonial laws. Even Pakistan's Muslim Family Law Ordinance 1961, has abolished triple Talaq, as the procedure laid down in section 7 is largely applicable to only 1 or 2 pronouncements, and not 3.

The first Muslim country which banned Triple Talaq was Egypt. It brought in a reformed Muslim divorce law in 1929. (See, Article 3 of Law No. 25 of 1929, as amended by Law No. 100 of 1985 Concerning Certain Provisions on Personal Status in Egypt). Sudan, which has a sizeable population of the Sunni Hanafi Muslims, reformed the divorce law in 1935, as the Article 3, Shariah Circular No. 41/1935 of Sudan clearly suggests. In Sudanian courts, all divorces by the husband are revocable except the third one and the divorce before the marriage consummation. Syrian Muslim government introduced radical reforms in the divorce law in 1953. The Syrian Personal Status Law (Article 92) states: if Talaq is pronounced explicitly or implicitly with any number, only one divorce shall count, and every divorce will be considered revocable except the third one and the divorce before consummation. Similarly, Jordan (in 1957), Afghanistan (in 1958), Libya (in 1959), Kuwait (in 1976) and Yemen (in 1977) have abolished the triple Talaq.


Ghulam Rasool Dehlvi is a regular columnist with, scholar of classical Arabic and Islamic Sciences, cultural analyst and researcher in Media and Communication Studies at Centre for Culture, Media & Governance, Jamia Millia Islamia.


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