By Moin Qazi
Of all the lawful acts the most detestable to God is divorce - Prophet Muhammad
(This an authentic saying recorded by Abdullah ibn Umar, a highly respected companion of the prophet in an authoritative treatise "Divorce (Kitab Al-Talaq)" of Sunan Abu-Dawud (Ref. 63-2173)
The issue of instant triple Talaq has over-fatigued, and it now seems that any more steroids from even clerics cannot give it further leash. The obituary of course hinges on the Supreme Court outlawing it.
Triple Talaq is a contested Islamic way of getting a divorce where a husband can dissolve a marriage in the blink of an eye only by saying or writing the word Talaq - meaning divorce - three times in a row to his wife. Example, by saying “I reject you”, "I divorce thee”. A Talaq is unilateral divorce by a husband's oral declaration as against Khula which is a divorce initiated on the application of the wife.
Quite apart from denying women's rights, this custom has inherent absurdities. The moment a Muslim male utters "Talaq, Talaq, Talaq", his wife becomes unlawful to him, even if he has uttered those words under coercion, in a fit of rage, in jest or drunken state and regrets his utterance the very next moment.
The only way out is for the woman to marry someone else, consummate the marriage, get the second husband to divorce her and then re-marry the first husband. This process is known as Nikah Halala and is actually a deterrent for men against this practice.
Several scholastic understandings of divorce within Islam do not support the notion of triple Talaq in its current form and it is banned or not practised in many Muslim countries, including Algeria, Tunisia, Malaysia, Iran, Pakistan, Saudi Arabia, Turkey, Tunisia, Algeria, Iraq, Indonesia and Bangladesh.
Interestingly, the hardline Wahhabi movement has also been opposed to the practice, which is now facing a stiff challenge in India's apex court.
In Islam, marriage is a solemn contract (Meesaaqan Ghaleeza) and both parties have equal rights to revoke this covenant in accordance with Quranic procedure if the other party breaches it. Talaq is expected to be exercised only under extenuating circumstances.
It allows for an exit when the marriage breaks down but only under certain conditions. The Talaq-e-Ehsan or Talaq-e-Sunnah, the only form approved by the Prophet, is has an elaborate procedure that spreads over three months and it is only after the completion of the third month that marital relationship ceases.
The instant triple Talaq, which is considered impulsive and hasty, is an innovation and therefore termed as Talaq-e-Bidʿah - Bidʿah meaning innovation.
The debate on whether instant triple Talaq should be allowed to continue has reverberated for long but the drumbeats have grown louder after the BJP raked up the issue. The various camps have dug their trenches and are stridently blowing their horns. What is paramount - gender equality as guaranteed by the Constitution or the dictates of religion?
The position of the Supreme Court on the issue has been quite categorical in Shamim Ara vs State of UP, a judgment of 2002; the Supreme Court had invalidated arbitrary triple Talaq and held that instantaneous triple Talaq does not dissolve a marriage. This position has been time and again reiterated by Indian courts.
The All India Muslim Personal Law Board (AIMPLB) is actually in a bind. The postures of the government and the signal coming from political pundits and policy anchors are enough to upset even liberal Muslims.
It is highly unfair to say that Muslim women are enthusiastic about the saffron agenda in matters concerning Muslim customs and laws.
The Bhartiya Muslim Mahila Andolan (Indian Muslim women’s welfare movement or BMMA) is basically demanding improvements in the status of Muslim women through the framework enshrined in the Quran. They are very clear that they do not want any interference with their scriptures, to which the Muslim women swear abiding fidelity. It must be said to the credit of the BMMA that it is using purely Quranic logic and arguing the case from within the confines of the faith's traditions.
Rather than a Uniform Civil Code, the organisation has claimed there is need for “gender-just reform in the Muslim personal law based on the Quranic values of equality and justice in line with Article 25 of the Constitution”, according to Dr Noorjehan Safia Niaz, co-founder of BMMA.
“It is important to point out that national integration cannot happen by a common family law but by treating all citizens equally. There can be no imposition of any kind as this would impinge on the religious freedom and secularism principles enshrined in the Constitution,” avers Niaz.
In its preliminary affidavit to the apex court, the AIMPLB has also sounded a level-headed approach. It stated that “this Hon’ble Court has already dealt with the said issue and placed explicit measures to check this practice by laying down the test of 'reasonable cause' and 'prior reconciliation' in Shamim Ara vs State of UP. The principles laid down in Shamim Ara are the law as declared by this Hon’ble Court and as such a binding precedent."
It may come as a revelation that the Quran does not prescribe this form of divorce at all.
The truth is that the concept of instant triple Talaq is alien to Islam. The Quranic ontology revolves around the principles of justice, fairness and equity, and therefore, any law that contravenes or abridges the rights arising out of these standards of ethics automatically becomes unacceptable.
In fact, the Quran has specifically laid down a four-tiered calibrated divorce, keeping in mind human frailties. The first two stages give an opportunity to the estranged couple to reconsider their decision and, if possible, reconcile and resume their married relationship. Dissolution of marriage through divorce is the last option when all reconciliatory measures have failed. It has to be formalised in a specific-time frame with the fulfilment of the conditions stipulated in the Quran.
Unlike Hinduism and Christianity where marriage has been traditionally viewed as a sacrament, under Muslim law, marriage is a civil contract (Meesaaqan Ghaleeza) based on mutual consent. The ideal form of dissolution of this contract, based on the Prophet’s tradition, is considered to be Talaq-e-Ehsan or Talaq-e-Sunnah.
Under this form, once the husband pronounces Talaq, there has to be a three-month Iddah period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration. During this period, if any cohabitation occurs, the Talaq is considered to have been revoked.
As a first step, when there is marital discord, the Quran advises the husband to reason (Fa’izu Hunna) with his wife through discussions. If differences persist, they should refrain from any conjugal acts till they settle their dispute (Wahjuru Hunna); if even this fails, the husband is instructed, as a third step, to once again explain (Wazribu Hunna) to his wife the gravity of the situation and to caution her that it can become common knowledge and may not be in the interest of both parties.
As a fourth step, the Quran advises that if even the third step fails, the fourth step of "arbitration" must be followed. In this step, a member from each of the spouse's family is present and the parties try to make amends in the strained relationship.
Most Muslims see these gender reforms as a subterfuge for deflecting attention from the most pressing discriminations that the community is facing on the economic front.
It is only after all four steps have failed that a husband pronounces the first Talaq. The husband has to compulsorily wait for a wife's Iddah (menses) to get over to pronounce Talaq. During the three-month cycles, a man cannot give his third Talaq.
The 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, the period of Iddah would be till the child is born or till the termination of pregnancy. If the parties are unable to reconcile during Iddah, the final irrevocable Talaq can be pronounced which extinguishes the marriage.
The Quran says: “When you divorce women and they complete their term (Iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms” (2:232).
In other words, after the expiry of Iddah, the parties are given the option of remarriage or permanent separation - the separation being the third, and final irrevocable Talaq to be pronounced in the presence of two witnesses (Q65:2).
Keeping in view the sanctity of the marriage bond and the gravity of the act of breaking it, the Quran warns that once the parties choose to separate after the expiry of the Iddah, they cannot marry again unless the wife takes another husband and he divorces her (Q2:230).
This improvisation is known as Nikah Halala and requires the woman to go through the entire process all over again - remarry, consummate the second marriage, get divorced, observe the Iddah period and then come back to him.
Indian Muslims would do well to adopt the rules in Pakistan’s 1961 Muslim Family Laws Ordinance. It provides for an arbitration council to attempt reconciliation and a 90-day period for retraction. Talaq must be pronounced by a notice in writing and communicated to the council’s chairman. The wife can stipulate for the right to divorce in her Nikahnama or marriage contract (Talaq Tafuriz). Additionally, she has the right to dissolve the marriage (Khula).
This is where Morocco has provided an essential lead. Its new Islamic family law was produced with the full co-operation of religious scholars as well as the active participation of women. Every change in the law is justified - chapter and verse - from the Quran, and from the examples and traditions of the Prophet Muhammad.
In 1943, Maulana Abul Ala Maududi, the subcontinent’s leading ideologue, also opined against instantaneous Talaq - or Talaq-E-Bidʿah: “[Triple divorce] is an innovation and a sin leading to many legal complications. If people knew that triple divorce is superfluous and even a single Talaq would dissolve the marriage, of course, leaving room for revocation during the next three months and remarriage thereafter, innumerable families could have been saved from disruption.”
But the present discourse in India has acquired political overtones and is marked by mutual distrust. The AIMPLB is right in apprehending that BJP has a much broader and sinister agenda and BMMA also understands that its charter is being overstretched by the government.
Muslims are apprehensive of the state’s obsession with trying to "create" a specific type of Islam, rather than allowing them the space to simply live Islam - with all its beliefs, traditions, cultures, references and various practices.
We should heed the wisdom in the epochal words of Amartya Sen in The Idea of Justice: “The increasing tendency towards seeing people in terms of one dominant ‘identity’ (‘this is your duty as an American’, ‘you must commit these acts as a Muslim’, or ‘as a Chinese you should give priority to this national engagement’) is not only an imposition of an external and arbitrary priority, but also the denial of an important liberty of a person who can decide on their respective loyalties to different groups (to all of which he or she belongs).”
The BJP’s affidavit gives a pungent odour and has made the community jittery. It is using the triple Talaq issue and the BMMA campaign as a tool for wholesale changes in Islamic rules. It could have very well restricted its affidavit to triple Talaq; instead it has tagged many other issues which no Muslim country has touched so far.
Conservatives fear that what the state is actually trying to achieve is stifling of social, political, and economic grievances in the name of "moderating" a religion which it believes has the potential of being taken to an "extreme" far too easily. In the process the state can use its subtle power to suborn the community’s culture. The state should not be dismissive of legitimate concerns of all these stakeholders.
For decades, most of India’s political parties have practised forms of “strategic secularism” to secure a so-called Muslim vote bank - an approach that has stoked resentment among the country’s Hindu majority while doing little to improve Muslims’ well-being.
The real problem is that Muslims lack a strong and credible leadership that can inspire support from the community. During the Shah Bano era, the AIMPLB could restrain the state from interfering in the community’s personal laws because it was led by a tall leader like Maulana Ali Mian whose voice could punch above the entire global Muslim academia and state.
The biggest problems facing Muslim women today are economic. They are not likely to be solved with civil rights remedies, but they could be relieved with public and private action to encourage economic redevelopment and rebirth in our ghettos. What is of utmost criticality is the need for educational and financial empowerment of women.
The economic agenda is more urgent for the community than these reforms which involve a miniscule section of their population. The whole chorus gives an impression that the civil code is the prime urgency of the community and that it is a magic bullet for its multiple problems. Most Muslims see these gender reforms as a subterfuge for deflecting attention from the most pressing discriminations that the community is facing on the economic front.
Conditions for India’s Muslims have continued to worsen, which is the prime reason for social and economic degeneration of the community. According to a report compiled by The Economist: “The Sachar Committee report broadly showed Muslims stuck at the bottom of almost every economic or social heap. Though heavily urban, Muslims had a particularly low share of public (or any formal) jobs, school and university places, and seats in politics. They earned less than other groups, were more excluded from banks and other finance, spent fewer years in school and had lower literacy rates. Pitifully few entered the Army or the police force.”
The Sachar Committee Report of 2006 and the Misra Commission Report of 2007 highlighted a higher prevalence of discrimination towards Muslims and socio-economic deprivation among them as compared to other religious groups. Little concrete action, however, has been taken to address these issues at the policy level. If anything, the situation has worsened.
Muslims are now certainly responsive to change and are trying to develop a more contemporary and humane interpretation of Islam, and some countries are undergoing major transformations. More and more Muslims now perceive those erroneous interpretations of Islamic law that are glaringly unjust to women to be dangerously obsolete. And these include the ulema, the religious scholars and clerics.
For Muslims it is a good time to pause, reflect, and attempt to re-locate the main features of, and re-discover, Islam. They need to take stock, not because they have arrived at any significant stage of the Islamic journey but because the sheer range of trajectories and approaches, and consequent confusion, obliges them to attempt clarification. The problem is not that there are too few answers but that there are too many. To put it in the words of the Quran:
“Those who listen to the Word and follow the best (meaning) in it: those are the ones whom Allah has guided and those are the ones endued with understanding.” (Q39:18)