By Radhika Iyengar
April 18, 2017
In India, Triple Talaq has been a bone of contention. Under the Muslim Personal Law (Shariat) Application Act (1937), Triple Talaq – a practice that has been discarded by several Muslim majority countries, including Turkey, Pakistan and Bangladesh – still exists in India. Up until now, it was maintained that when it came to marriage, divorce and other personal rifts, the state would not interfere, and the religious law would be the prevailing authority.
In the name of tradition, the All India Muslim Personal Law Board (AIMPLB ) finds triple Talaq or Talaq given in one sitting, sacrosanct and crucial, particularly for women. In September 2016, the AIMPLB defended the religious tradition of triple Talaq stating the law actually ‘protected’ women since it prevented husbands from resorting to murder. In an affidavit, it stated: “If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive.”
The issue of triple Talaq, therefore, has been a significant, yet controversial issue. Talaq (repudiation) finds its roots in Arabic, where the word means “undoing of or release of a knot”. It is derived from the word ‘Tallaqa’ which means “to free” an animal from tether. To repudiate a woman implies that the husband is ‘releasing’ her from the ‘bondage’ of marriage. Announcing a dissolution of marriage must be done clearly – there should be no ambiguity.
Islamic law recognises two kinds of Talaqs – Talaq al-Sunna (which works according to the dictates of the Prophet) and Talaq al-Bidat (which was an innovation, born out of inconvenience of the strict dictates of the Prophet). The latter was divided into two forms – one was the declaration of ‘Talaq’ three times (that is, triple Talaq) and the other was divorce done through writing. In Understanding the Islamic Law of Divorce, Furqan Ahmad writes that Talaq al-Bidat emerged during the second century, when Omayyad rulers found that the laws “imposed by the Prophet on the facility of repudiation interfered with indulgence of their caprice and endeavoured to find an escape from the strictness of law.” Ahmad further writes, “It must be noted that it was not Islam, but Omayyad practices that gave validity to these divorces.”
Tradition dictates that religious laws should be preserved. Unlike India however, there are several Muslim majority nations where triple Talaq has been banned.
Pakistan and Bangladesh
Pakistan’s Muslim Family Law Ordinance (1961) was a watershed moment in the country’s history, which altered the martial laws in Pakistan and made the customary triple Talaq, illegal. This law has been adopted by Bangladesh as well. Eminent scholar Prof. Dr. Mumtaz Ahmad wrote in The Muslim Family Laws Ordinance of Pakistan, “The Muslim Family Law Ordinance was the first legal effort in Pakistan to codify Muslim personal law…The new law required that, in order to obtain a divorce, a husband had to send a written notice to the chairman of the local council with a copy to his wife. But the divorce will not be effective until the expiration of a waiting period of 90 days, which will be utilized to constitute an arbitration council for the purpose of bringing about a reconciliation between the parties.”
Muslim Family Law Ordinance (1961) came into being through a controversial event. It began in 1955, when Pakistan’s then Prime Minister, Muhammad Ali Bogra, who was already married, went ahead and married his secretary Aliya Saadi, without the permission of his first wife, Hamida. Offended by the flippant manner in which the leader of the country dealt with the institution of marriage, Hamida Bogra refused to accept everything in silence. She joined forces with the wives of Pakistan’s elite who were members of the All Pakistan Women’s Association (APWA) that held nationwide protests against the Prime Minister and polygamy. The campaign eventually transformed into a vehicle for change, where women in Pakistan demanded reforms in Muslim family laws.
Following this, the Commission on Marriage and Family Laws was established that same year, that demanded changes in the existing marriage and divorce laws. It demanded, “the proper registration of marriages and divorces, the right to divorce exercisable by either partner through a court or by other judicial means, maintenance and the establishment of special courts to deal expeditiously with cases affecting women’s rights.” It also strongly underlined that, “a reconstruction in the light of the spirit of the Quran and Sunnah is not only permissible, but is a duty imposed on the Muslims to make Muslim society adaptive, dynamic and progressive.” The demands and alterations suggested by the Commission were respected and were incorporated through the Muslim Family Law Ordinance 1961.
Turkey and Cyprus
Turkey is one of the most secular Muslim nations in the world. In Turkey, up until 1917, divorce could only be done by the man, by simply saying “Talaq, Talaq, Talaq” – which is still accepted as Islamic tradition in India. In 1926, however, under the leadership of Mustafa Kemal Ataturk, the Islamic laws of marriage and divorce (grounded in the Quran) were abolished and the modern Swiss Civil Code (a highly progressive Civil Code in Europe) was adopted. This was part of the reorganisation Ataturk undertook as the founder of the Republic of Turkey between 1926 and 1929, which introduced a gamut of progressive social reforms. Among the most significant were the acknowledgment of equality of the sexes, civil marriage and divorce, abolition of polygamy and unilateral repudiation. At that time, while the abolition of the Sharia law was accepted and embraced by the Turkish elites, it was opposed by Islamic authorities.
This civil code was further adopted by Cyprus as well.
In 1929, Egypt was the first country to adopt a modern perspective held by scholar Ibn Taimmiyah (1268-1328) and theologian Ibn alQiyam (1292-1350), with regard to the personal laws on marriage and family. Both Ibn Taimmiyah and Ibn alQiyam declared that repeating “Talaq” three times would only be considered as the first step in the overall three-step process of divorce. “Egypt was the first country to deviate from the position of jamhur (the majority of Muslim Jurists) in 1929, when it provided that a divorce accompanied by a number expressly or implied, shall count only as a single divorce and such a divorce is revocable except when three Talaqs are given, one in each tuhr,” wrote Prof. Dr. Mumtaz Ahmad. Tuhr, is the period of ‘purity’, that is, when the wife is not menstruating. In 20th century, over 20 countries adopted this decree, including Syria, Jordan and Iraq.
Muslims, particularly in countries where they are a minority (like India), tend to be resistant to change. They try to (and understandably so) to protect and preserve their religious laws. Sri Lanka, however, where the Muslim community (mostly Sunnis) is 9.7 percent of the total population, is a country that does not support or accept triple Talaq. It has the Marriage and Divorce (Muslim) Act 1951, which states that a husband who wishes to dissolve his marriage can only do so by giving a “notice of his intention to the Qazi”. Subsequently, it is the Qazi who first attempts to initiate a reconciliation process between the husband and wife, which involves the assistance of relatives and family elders. Reconciliation period is a period of 30 days, after which, if differences between the spouses are still not resolved, the husband has the liberty to declare Talaq, but only in the presence of two witnesses and the said Qazi.
Tunisia and Algeria
As a country, Tunisia has a progressive Code of Personal Status (1956), where a divorce is not valid outside the court of law. More importantly, a divorce is not given unless and until the court has looked into the causes for the fissures in the relationship, validated them and is assured that no reconciliation can be done.
Similarly, in Algeria, divorce can only be given by the court, after an attempt at reconciliation has been made. The reconciliation period cannot exceed the duration of three months.