By Muhammad Yunus, New Age Islam
10 May 2017
(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009)
New Age Islam has just published an interview of Legal Expert Faizan Mustafa under the above caption. On close scrutiny of his responses, the Legal Expert purports to evade the popular demand of constitutionally abolishing the custom (common law) of triple Talaq and Halala on the basis that it some cases Supreme Court has already declared it Invalid. This writer, who has done a number of articles on this issue, strongly feels that these customs (common law) should be constitutionally declared null and void. Hence, he is tabling this critique of his responses.
To begin with the opening paragraph of the article poses two unrelated questions on the assumption that the Supreme Court declares triple Talaq and Halala unconstitutional:
i) Will the system of Halala (instant divorce followed immediately by marriage with a new spouse, then remarriage with the first spouse after the new spouse consummates marriage and divorces her – all within a span of a few days) stand annulled.
ii) will it uplift Muslim women economically and socially?
The answer is simple:
i) It will abolish the heinous custom of Halala that, however few may be the instances, is immensely oppressive of a woman, dehumanizes her by institutionally forcing her to have sexual intercourse with a stranger, deprives her of the plethora of rights the Qur’an accords her, causes her lifelong agony and shame and above all stands in stark contradiction with the Qur’anic message.
ii) Since triple Talaq and Halala affect a small minority of Muslim women, it will save a minority of women from its horror. Upliftment of Muslim women as a whole is a totally different issue and is not contingent to any one particular issue and not relevant in deciding the merit of the case to declaring triple Talaq, unconstitutional.
Evaluation of the responses given by the learned Legal Expert against questions posed:
1. Question: The Supreme Court has been petitioned to declare triple Talaq unconstitutional. What does the word “unconstitutional” mean?
Evaluation of Response:
Para one concedes that Article 13(1) of the Constitution says that any law inconsistent or in contravention of the fundamental rights shall be void to the extent of inconsistency or contravention - though it mentions in the same breadth that the Constitution has not expressly empowered the higher judiciary to adjudicate the matter.
Para two opens with a reversal of the preceding claim and acknowledges that “the Indian judiciary, as custodian of the Constitution and guarantor of the fundamental rights, has not only assumed this power under Article 13(1) but held it to be the basic structure of the Constitution.” However, after some technical discussion on definitions, it purports to charge Indian Judiciary of “indulging in the strict scrutiny of laws passed by competent legislatures.” The Legal Expert, however, fails to recognize that regardless of the competence of the legislative authority, if a Law, with passage of time, is found to cause severe violations of human rights, the higher Judiciary that is entrusted with establishing justice and expunging injustice from the society can review it, even if it concerns Personal Laws.
Para three claims that “personal laws and customs are different.” This is not consistent with the universally accepted notion of “Common Law” which is defined as “a binding custom or practice of a community : a rule of conduct or action prescribed formally recognized as binding or enforced by a controlling authority.” [https://www.merriam-webster.com/dictionary/law]
The fourth para purports to claim that Shariat Act was passed in 1937 to ensure compliance with Islamic Shariat. But it must be admitted that if any of its rulings, such as instant triple Talaq and Halala directly and blatantly contradict the divine and eternal Sharia of Islam – they must be annulled.
2. In that case, the question arises as to what constitutes Muslim Personal Law?
Evaluation of Response:
The first para begins with a confessional statement that “Muslim Personal Law in India is not entirely Islamic law.” After spelling out its basis, it declares “decisions given by British and Indian judges, most of whom were non-Muslim” upheld triple divorce as valid. No dispute over this response. But this technically accurate statement is followed by a highly flawed claim in the opening statement of the next paragraph that “Abu Hanifa established one of the five schools of Islamic jurisprudence.” This is simply incorrect. Abu Hanifa (died 149 AH/766 CE), was one of the greatest jurist of his era and the earliest among the great jurists of Sunni Islam, notably, Malik ibn Anas (d. 179/795), Muhammad al-Shafi’i (d. 205/821), and Ahmad Ibn Hanbal (d. 240/854). The law schools were established posthumously around fourth century of Islam after the names of these great jurists. The rulings of the followers of these jurists in the successive generations for 1000 years are appropriated to their respective schools. So when we say, it is according to Hanafi Law, it does not mean that Imam Abu Hanifa introduced that law.
The Legal expert also contends that as we cannot declare the works of John Austin and Manu as unconstitutional, the same should apply for the Hanafi Law. But examples of John Austin and Manu are irrelevant. Islamic Law is a juristic tradition – it is drawn on the cumulative rulings of past jurists and its rulings cannot be attributed to the founder the law school as explained above, while John Austin and Manu’s views were theirs. Besides, Abu Hanifa advocated interpreting the sources of Islamic law (usul al-fiqh) in response to the needs of the people at the time. So, if he were alive today, he will only be happy to see the suggested reform of Muslim Personal Law that goes under his name.
3. Given that in Shamim Ara case in 2002, the judiciary had regarded triple Talaq as one Talaq, what is the significance of the present case submission to annul it.
Evaluation of Response:
After summarily capturing Shamim Ara’s case in the first paragraph, Legal Expert opines that “the Supreme Court may reiterate its decision in Shamim Ara case and explicitly declare that three pronouncements in one sitting will now be treated as just one revocable divorce.” Although the suggestion amounts to declaring triple divorce as unconstitutional, the suggested phrasing will still allow many Muslim men to terrorize their women-folk with this sinful and oppressive Law (Custom) .
The third para talks about spelling out all sorts of conditions in the ‘marriage contract,’ but in Islam the marriage contract must not violate the basic tenets of the Qur’an, or else what is the purpose and role of the Qur’an in a Muslim’s life. Triple Talaq and halala stand in stark opposition to the Qur’anic message like adultery and incest and cannot from any part of Nikah Nama
The next para again states: “Juristic opinions given over 1,000 years ago cannot be struck down as unconstitutional.” The truth is the opinions of the jurists were specific to their era and no jurist of Islam claimed infallibility or expected his singular or collective opinion to remain binding on the posterity until eternity. Islamic Law makes this point crystal clear. Chapter XII, The doctrine of Ijma (Consensus) in Islam by Ahmad Hasan, offers these clarifications:
1. Only the agreement of the companions is valid; the agreement of the later generations is not worth consideration.
4. Ijma is valid on condition that nobody opposes it in the generation in which it is reached. In case anyone dissent, there would be no Ijma
9. If the majority of scholars agree on an opinion and the minority differs with them, ijma is not valid.
24. Ijma is an opinion which reveals truth. It is immaterial whether the opinion is held by one scholar or more.
Hence, there is no basis to regard an opinion given over 1000 years as inviolable – without saying a word on how many scholars contested it, or whether it represents the truth or whether it was contested by others down the generation, or whether it is oppressive this day.
Question: A term like “one revocable divorce” would be all Greek to most people…how to explain technical terms involving the process of Talaq.
The Legal expert concedes that All India Muslim Personal Law Board has now adopted the Qur’anic protocol for phased execution of Talaq. It then explains the complementary notion of Talaq e Hasana and concludes: “if three divorces are given instantly without the above mentioned seven steps, as also without any effort of reconciliation through arbitration, it is called Talaq-e-Biddat or the “most disapproved” form of divorce.” Thus the Legal Expert dismisses all his arguments about upholding the rulings of 1000 years and acknowledges the unlawfulness of triple Talaq.
Question: … Why do Ulema and clerics insist on persisting with it?
The Legal expert plunges into exegetic debate. Quoting Hadith and secondary sources to obfuscate or refute what is clearly expounded in the Qur’an, and now reportedly adopted by All India Muslim Personal Law Board, and summarily captured in my referenced article, he gives the Ulema and clerics a benefit of doubt. He mentions some early reports that allowed triple divorce, and others that strongly condemned, but unfortunately all such reports were recorded some six to seven generations after the actual occurrence of events and none of them is recorded in full light of history and preserved verbatim as the Qur’an and therefore no such report can overrule or contradict the clear pronouncements of the Qur’an, let alone the pre-eminence of the Qur’an as the Final source of authority on all legal matters.
The article concludes with a self-contradictory statement that “the dominant juristic view holds triple Talaq in one sitting to be valid, there are powerful dissenting voices in each school of jurisprudence as well” but nevertheless suggests that “Indian Ulema should consider adopting this alternative view.” However, his claim “the dominant juristic view holds triple Talaq” pertains to the jurists of the past. We are talking about this era and not the early centuries of Islam. How many jurists of this era would endorse triple Talaq is a big question. Perhaps few: only those juries who harbour deep hatred of Muslim women are likely to support this grossly un-Islamic and oppressive custom (law) when viewed in light of the present day ground realities.
The Jurists of Islam must know that in Islamic Law only the best of past precedents are valid for any era and those not relevant to the era or cause injustice to any individual or group must be set aside. Hence, no matter which Imams, Caliphs or scholars approved of triple Talaq, they approved it for their time – that is more than a thousand years ago. They never claimed their rulings to be binding for the posterity for all time – a point Imam Abu Hanifa made categorically as mentioned above in this article. So let there be no dilly dallying in declaring constitutionally invalid what is sinful, unlawful, oppressive and immensely dehumanizing to women and gross violation of human rights.
Earlier articles by this author on the subject:
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism