By Ghulam Rasool Dehlvi
Apr, 13 2017
While the Uttar Pradesh government plans to collect the opinion of Muslim women on triple Talaq to be presented before the Supreme Court, the All India Muslim Personal Law Board (AIMPLB) gears up to "do away with the practice in a year-and-a-half". Dr Sayeed Sadiq, vice-president of the body also stated that "there was no need for government interference”.
But the question is when triple Talaq is "unfair to women", according to the AIMPLB itself, why does the body need "one-and-a-half-years" to end the practice?
One of the most crucial question in this regard that has for long been echoed in the progressive Muslim circles is this: when the triple Talaq in one sitting has no sanction in the major Islamic countries, why and how long will it remain valid for the Indian Muslims, even on the societal level?
In an earlier Firstpost article, the very question was raised with reference to what Prof Tahir Mahmood, an Indian expert on the Muslim law and former member of the Law Commission of India, had said: "It is banned all over the Muslim world. Why should India be sticking to this 7th-century law?"
A senior Muslim journalist and Islamic affairs expert, Sultan Shahin, has debated this for quite a long time in his website NewAgeIslam.com. His question was: “Why should Indian Muslim women not deserve the protection of Islam provided to their counterparts in Pakistan, Bangladesh and elsewhere, practically in the entire Islamic world, except Saudi Arabia? Egypt, Iran, Jordan, Morocco, even Yemen and Sudan have more modern Muslim personal laws than India. Why should Indian Muslims suffer the indignities imposed by the British in our land under an Anglo-Mohammedan law?"
Most staggeringly, even the orthodox Muslim leaders in India like Asaduddin Owaisi, president of All India Majlis-e-Ittehad ul Muslimeen and a member of AIMPLB, seem to have sensed, though lately, the predicament of this practice. Recently, Owaisi spoke to The Times of India on the issue and stated: "Muslim man divorcing (his) wife without reason, must be socially boycotted. Triple Talaq is not the best way, but it happens."
As a matter of fact, India's Muslim intelligentsia and the clergy or Ulema are dilly-dallying for too long on the issue of the oral triple Talaq. But if it is abolished in the Indian Muslim society, as it is apparent from the dissenting debates in the community, this reform will count nothing new in the Islamic world. It would not turn out to be an isolated phenomenon in India. As studies have shown, around 22 progressive Muslim countries have reformed their divorce laws during the last few decades. Even the traditionalist Ulema who were vehemently opposed to the amendments in the "Shariah of Talaq" are now happy to consider three Talaqs in one sitting as only one. The Indian Islamic scholars and the well-established Ulema will have to engage with the same gigantic task of "creative rethinking" or what is called Ijtihad in the canonical jurisprudential terminology of the Islamic law. Sooner or later, they are fated to realise that it is an indispensable requirement for their own socio-religious wellbeing.
Let's take a look at some of the major reforms in the divorce laws in Islamic countries.
Today, Egypt is looked up as the intellectual centre of the Sunni Islamic clergy, as it is home to the largest seminary of the Sunni Islam — Jamia Al-Azhar in Cairo. Surprisingly, Cairo was the first Muslim government which introduced substantial reforms in the Islamic laws of divorce in 1929.
Since the Shafae'e Madhab (school) is the most prevalent in Egypt, if a husband says to his wife, "I Divorce you 100 times", it will count as only one. This might go against the consensus (Ijm’a) of the Indian Sunni Islamic jurists (Fuqaha'). But the Egyptian court accorded the provision that pronouncing Talaq once, twice or thrice, explicitly or implicitly, shall count just one Talaq (al-Talaq Al-Wahidah). It also enjoined that such a divorce is revocable except in the case of triple Talaq pronounced in three different sittings — one in each period between menstruations, something which is called tuhr (purity) in the Islamic jurisprudence (Article 3 of Law No. 25 of 1929, as amended by Law No. 100 of 1985 Concerning Certain Provisions on Personal Status in Egypt).
Though Syria is known as an Islamic country influenced by the Ithna Asharis, Alawites, Ismailis and other offshoots of the Shia Islam, Sunnis still make up 74% of the total Muslim population, mostly of the Arab, Kurdish and Turkoman ethnicities. They belong to both majority schools of Islamic law — Hanafi and Shafi'i. An overwhelming number of the Sufi-oriented Sunnis like the Naqshbandiyah and Qadiriya are practising Sunni Muslims in Syria. In this volatile, yet very significant Islamic country, the divorce law was reformed in 1953. The Article 92 of the Personal Status Law in Syria states that 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. Notably, the Syrian law of divorce combines the provisions of the Egyptian and the Sudanese laws.
In Sudan, which is also home to a sizeable population of the Sunni-Hanafi Muslims, the divorce law was reformed in 1935. According to the Article 3, Shariah Circular No. 41/1935 of Sudan, all the divorces by a husband are revocable except the third one and the divorce before the marriage consummation.
In Tunisia, Muslims including the Sunni Hanafis have gone one step further in the reformation of the divorce law. The Article 30 of the Tunisian Code of Personal Status, says that divorce pronounced outside a court of law will have no validity of any effect. In addition, the article 32 enjoins: "No divorce shall be decreed except after the court has made an intensive inquiry into the causes of the marital conflict and has failed to reconcile between the two marriage partners". This comprehensive reform in the divorce law was brought in Tunisia in 1956.
The majority of Algerian citizens are Sunni Muslims belonging to different Islamic schools and sects including the Ibadi Muslims who are dominant in Oman and have a presence in Tunisia, Libya and East African Muslim countries. Notably, Sufism also emerged in Algeria in reaction to the theocracy which was arising earlier in the Orthodox observance of Islamic precepts and practices in the country. Going by the Algerian Muslim law (as stated in the Article 49 of Law No 84-II of 9 June 1984 in the Family Law of Algeria), a "divorce may only be established by a court judgment preceded by an attempt at reconciliation by the judge which shall not exceed a period of three months”.
Similarly, Sri Lanka’s Muslim Marriage and Divorce Act as amended up to 2006, provides that a husband intending to divorce his wife "shall give notice of his intention to the qazi [Islamic jurist] who shall initiate the reconciliation between the spouses "with the help of the relatives of the parties and of the elders and other influential Muslims of the area". However, if the reconciliation efforts prove fruitless after thirty days of the notice given to the qazi, “the husband, if he desires to proceed with the divorce, shall pronounce the talaq in the presence of the qazi and two witnesses". (Marriage and Divorce Muslim Act, 1951 as amended till 2006, section 27 and Rules 1 and 2 Second Schedule). This ongoing reformation started in Sri Lanka in 1951. But according to available information sources, the law does not give more practical details on a divorce given without following this procedure. Nevertheless, the Marriage and Divorce (Muslim) Act which was amended up to 2006, seems to be an ideal legislation for the Indian Sunni-Hanafi Islam conflated with the issue of the triple talaq.
The Kuala Lumpur-based International Islamic University held several key seminars and conferences to discuss the Divorce Reform Act 1969 (DRA). For instance, one of the same university's female Islamic intellectuals, Zaleha Kamaruddin wrote in her research work Introduction to Divorce Laws in Malaysia: "Malaysian state of Sarawak, which is the family law of the country, prescribes that a husband who desires to divorce his wife has to request a court to look into the causes of proposed divorce and advises the husband not to proceed with it. However, if the differences are irreconcilable, then the husband may pronounce one divorce before the court".
Other Malaysian Muslim thinkers like Ahmad Ibrahim (Family Law in Malaysia, a paper published in Malayan Law Journal), Mehrun Siraj (Conciliation Procedures in Divorce Proceedings) also detailed the reforms introduced in the Law Reform (Marriage and Divorce) Act 1976 in the 7th Malaysian Law Conference, which was held in Kuala Lumpur, from 31 October to 2 November in 1983.
However, this is an ongoing reformation by the Malaysian government like in Sri Lanka. Although the Malaysian state of Sarawak does not recognise a divorce pronounced outside the court, the triple talaq, if pronounced explicitly with the number 3, is effective in the court. Moreover, the practice has a common prevalence in this Muslim-majority country. "If a husband utters even the first lafaz of talaq (or talak in Malay) with the three digits, it is still accepted in the society of Malaysia", Saidatul Akmar, a female intellectual of the Malaysian organisation, Rahmatul-lil-Alameen told this writer.
Besides these Islamic countries, many other global Muslim societies have also adopted progressive Islamic postulates as the guidelines for the gradual reformation and progression in their personal laws. Jordan (in 1957), Afghanistan (in 1958), Libya (in 1959), Kuwait (in 1976) and Yemen (in 1977) adopted similar laws on the Islamic divorce or talaq.
The list also includes the United Arab Emirates, Qatar, Morocco and Bahrain being the latest countries which embraced and incorporated the remarkable reforms in triple talaq introduced by the above-mentioned Muslim countries. Clearly, the procedure laid down in the laws of these Muslim-majority countries seem to be in harmony with the well-known Quranic procedure of talaq, which was also enshrined and exhorted by the Prophet. As far as Iran and its strict Shariah laws are concerned, since it is the Shiite-majority country in the Muslim world, triple talaq doesn’t have a validity whatsoever.
Ghulam Rasool Dehlvi is a scholar of classical Islamic studies, cultural analyst and researcher in media and communication studies.