By Muhammad Yunus, New Age Islam
13 May 2017
(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009)
A Submission to the Judicial Bench of Supreme Court Adjudicating Triple Talaq Petition
This, like the preceding article from this author, is an objective evaluation of the Legal Expert Faizan Mustafa’s second article just published on the subject with the following caption that speaks for itself.
Nikahnamas That Bar Triple Talaq Could Work Much Better Than Making the Practice Illegal
Since the article learned Legal Expert continues to argue against constitutional invalidation of triple Talaq and advocates the inclusion of an appropriate restrictive clause in the Nikahnama, this author, who finds the suggestion inconsistent with the religious spirit of Nikahnama and a tacit accommodation of triple Talaq as an option for termination of marriage curtailed contractually, he is doing this critique, to reinforce his view to declare triple Talaq constitutionally invalid, rather than incorporating its prohibition in the Nikahnama.
Critique of the Article
The first two paragraphs of the article parallel triple Talaq with a person’s freedom of choice of a bride. The parallel is untenable as triple divorce robs a Muslim married woman from the lower income group of her children (that her husband would retain in most cases), her home and hearth, her furniture and belongings that the husband may have bought for her, her livelihood (in most cases such women are housewives and the husband is the primary source of livelihood), her reputation and denies the following rights as accorded by the Qur’an:
i) right of arbitration (2:228/229) that could help restore the marriage
ii) free accommodation at the husband’s house for the waiting period of three months, (2:231, 65:2)
iii) to be retained by her husband if she was found pregnant after the divorce (2:228),
iv) to have her husband (who divorced her) bear the cost of delivery, maintenance, wet-nursing (if required) of the child born of the just terminated marriage – in the event iii above does not work out.
Apart from causing grave physical sufferings, financial losses, trauma and stigma to a divorced Muslim woman and violating her fundamental human rights and those sanctioned by the Qur’an, triple Talaq can be paralleled with “the proverbial Sword of Damocles” that hangs over the head of many Muslim women”- as Sultan Shahn, the Founding Editor of this website puts it. This most unjust and oppressive custom has no relevance to the cited episode of “a man issuing a matrimonial advertisement seeking an extremely beautiful bride who should be tall, highly educated and from a reputed family” and then marrying “an illiterate, ugly-looking, short and poor girl.”The cited episode appears grossly underplay the graveness of the issue of triple divorce.
Para-2 concludes with a statement: “It is difficult to say to what extent we can strike down private, personal decisions between husband and wife as unconstitutional.” This again is not relevant to the issue of triple tallaq, which is never a “personal decision between a husband and wife.” It is invariably a unilateral decision of the husband.
Para-3 cites Article 15 of the Constitution pertaining to privately held facilities (wells, tanks and bathing Ghats) and has no bearing with the case in point. A Brahmin who maintains a well at his own expense will have the right to exclude whomsoever he wants from using it without doing any injustice to him or defying his human rights. The example cited is non-sequitur.
Para-4 argues that even if triple Talaq is declared unconstitutional, men will continue to give triple divorce and women willing to retain the marriage will have to go through years of costly and time-consuming legal battles to get a verdict of non-dissolution of marriage. The argument is flawed. If triple Talaq is declared invalid or illegal, its pronouncer (in presence of witnesses) will be liable to prosecution unless he claims that his pronouncement was made thoughtlessly (2:225) or in a state of drunkenness – when a person’s word cannot be taken on face value (4:43).
Para-5 argues in favor of terminating a failed marriage rather than compelling a man to continue in marriage against his will, or compelling a wife who has been given triple divorce, to live with such husbands. Point taken! But the argument is flawed as it recognizes triple Talaq as an instrument for terminating marriage. Additional argument tabled to parallel triple Talaq with Polygamy is untenable as polygamy is a totally different issue: A woman whose husband takes additional wife (es) may not be subjected to human rights violations, dislocation, deprivations, dehumanization, trauma, stigma and financial losses as many triple divorced women face. So the comparison is not valid.
Para-6 refers to a recent Allahabad High Court ruling that marriage being a contract cannot be unilaterally terminated. The Legal Expert contends that ‘all contracts can be terminated unilaterally’ by paying damages as per the contractual terms. This is not relevant of a Muslim marriage solemnized over a Nikahnama which intrinsically is dismissive of a unilateral instant divorce of a wife by her husband. A Nikahnama can allow a woman to unilaterally divorce her husband by paying compensation (2:229). The argument presented does not support the caption of the article.
Para-7 again lumps up polygamy with triple divorce. The twain present totally different scenarios as explained against Para 5 above and need not be restated. The Legal Expert has cited marriage contracts of the Mughal period on the strength of the historian Shireen Moosvi and reports three common conditions that “entitled the wife to divorce the husband or get the marriage annulled:” i) domestic violence, ii) the husband marrying another woman, iii) husband leaving the wife for long periods and a fourth condition - that of the husband keeping a female slave in some cases. But none of them mention triple Talaq or Halala for the obvious reason that triple Talaq and Halala are as antithetic to the spirit of Islamic marriage as other express prohibitions that cannot be accommodated in the Nikahnama even with mutual consent.
Para-8 suggests the adoption of the Moghul era model of Nikahnama retaining its first three conditions but substituting the fourth condition (husband buying a female slave) which is no longer applicable with the prohibition of triple divorce. However, no rationale is provided for this substitution. Keeping a mistress may not cause any human right violation of a wife. She will neither lose her husband, nor her children, nor her home and hearth, nor her status, nor her livelihood, nor risk lifelong suffering and deprivation. So, if the husband defaults on the contract and keeps a slave, the physical, emotional damages and human rights violations of an existing wife is immeasurably less than if she was given triple Talaq by violating a contractual stipulation.
Para-9 informs that the Moghul era model of Nikahnama were routinely enforced by British judges and cites the ‘Poonoo Bibi v. Puex Push case (1875)’ to give us a glimpse of progressive marriage contracts. This has no relevance to the issue of triple Talaq.
In the concluding para, the article again lumps up the issue of polygamy and triple divorce disregarding the stark disconnect between them as expounded against Para-5 above, and advocates their inclusion in the Nikahnama.
This writer’s comment:
No Muslim man will protect himself against any potentially adulterous or homicidal behaviour of his would-be wife by incorporating clauses in the Nikahnama that his wife will not commit adultery or kill her baby child as many women did in Pre-Islamic Arabia (60:12). Since they are expressly forbidden by the Qur’an and entail gross human rights violations and legislatively criminalized, they are, like numerous other aspects of behaviour, unwritten components of Nikahnama. The same should apply for instant triple Talaq. It is expressly forbidden by the Qur’an (58:2, 2:228/2:229), causes grave human rights violations and is enduringly devastating and traumatic to its victim. The spelling out of this most oppressive and deeply misogynistic pre-Islamic custom in the Nikahnama will purport to imply imposing some limitations on the prerogatives of the male spouse, who may in practical terms, violate the contract and take recourse to this practice, which is nothing short of gender terrorism as expounded in one of my previous articles . In other words, instant triple divorce must be declared constitutionally invalid and culpable in the eye of Law, and not included in Nikahnama as a condition of prenuptial contract.
Triple Talaq must not be confused with Polygamy that i) is permitted in Islam in exceptional cases – though the Qur’an’s holistic message stands for monogamy  and ii) cannot be paralleled with triple divorce by any stretch of imagination on human rights violations and traumatic impact to a wife (existing versus divorced).
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.
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