By Faraz Firouzi Mandomi
A couple of years ago I headed down to the football grounds in Sanandaj, capital of Iran’s Kurdistan province, to watch the Kurdish Red-Blue Derby. During the match a blue defender was sent off by the referee for a dirty tackle. The player refused to leave the pitch however and remonstrated with the referee. Several spectators close to the pitch meanwhile began chanting – “triple-talaq, triple-talaq”.
The angry player had said “I will give my wife triple-talaq (instant verbal divorce) if I am forced to leave the pitch”. Play was suspended. The whole stadium was in uproar over the player’s verbal divorce. Should a marital union be ended simply on the basis of this utterance by a husband?
Some believe divorce should solely fall to the jurisdiction of family courts and it is not possible to end a marriage without the court’s leave. Others argue divorce is only made valid by a Mamosta’s fatwa. The issue is further complicated when it comes to see the prevalence of triple-Talaq as a deep-seated habit among Kurdish men, especially those who follow the Islamic school of Shafi’i.
Instant triple divorce (-Talaq-I-Bid’ah) is a controversial Islamic practice whereby a husband can end a marriage by simply saying “I divorce you” three times. In other words, under Sharia law, husbands can unilaterally terminate the marital bond without establishing any fault on the part of their wives – and even in their absence. Women do not have the same power.
The four founders of the Sunni schools of law (Madhab), including Imam Shafi’i, agree (ijma) that triple-Talaq is valid when it has been uttered by the husband in three separate periods of purity (Tuhr). However, there is disagreement when it comes to thrice utterance in one session (Majlis).
The majority of Islamic jurists, including Hanafites, Malikites, and the Hanbalites, claim that thrice pronouncement of Talaq in one setting is innovation (Bid’ah) and thus not permissible. Contrary to this opinion, Imam Shafi’i has unequivocally accepted the instant three Talaqs even in one phrase or sentence.
According to Iranian law, family relations are regulated as per the religion one is born into. Hence, the state law, which does not allow instant verbal talaq, is not applicable to minorities holding a Madhab other than Ja’fari. While the Iranian personal statutes and family law are generally based on Ja’fari jurisprudence, the recognized religious minorities have the right to regulate and administer their family issues, such as marriage, divorce and child custody, according to their respected religious laws.
Moreover, the controversial Family Protection Law (FPL) adopted on April 8, 2012, has confirmed the judicial autonomy of the recognized denominations. Thus, the Iranian parliament has taken an unprecedented step in the history of Iran’s legislation by adopting Para. 1 article 4 of the FPL. This paragraph stipulates the validity of the decisions by supreme religious authorities for the minorities in Iran on family issues and the fact that these decisions are binding upon civil courts even without considering necessary procedural requirements.
By granting competence to religious authorities, i.e. Sharia courts or council of clerics, the FPL has raised a critical question over the competent court. In the same way, the Iranian Supreme Court, surprisingly, also confirmed the legality of a triple-talaq case that was decided by the Council of Clerics of Sanandaj.
According to Imam Shafi’i, this divorce is considered final and ba’in (irrevocable divorce). Ba’in means that the spouses should be immediately separated and cannot live together anymore. If not, their relationship will be considered as adultery. In addition, the husband does not have the right to take his ex-wife back and the wife should leave her home of her own will.
Thing get even more complicated when the man wants to take his ex-wife back. In this case, the woman must go through a fresh marriage (halala) with another man with the intention of living with him and submit to a regular sexual relationship. It is only after separation from the second husband that the woman can remarry the first husband.
Giving this extra-judicial power given to men over unilateral divorce, any constitutional protection by the civil courts is, obviously, a violence against women in the Kurdish regions which deprives them of fundamental rights and affects their daily life.
The utterance of triple-Talaq has long been synonymous with men’s power and wealth. The more wealthy and powerful they are, the easier it is for them to use triple-Talaq.
Although most Arab and Islamic countries have abolished the practice and some countries like India have criminalized instant triple-Talaq, the Islamic Republic of Iran has continued to justify it as pluralism and freedom of religion.
Iran has codified human rights conventions and a legal obligation to respect, protect, and fortify their norms. As religious groups are not a subject to international law, the Iranian state is obliged to intervene and protect women’s rights within minority group specialty when it comes to uncodified laws of instant triple-talaq.
Faraz Firouzi Mandomi holds a master’s degree in international human rights law from Allame Tabataba’i University of Tehran and a master’s degree in European Union law from the University of Hamburg, Germany. He is now a PhD candidate in international private law at the University of Hamburg
Original Headline: Islam’s triple-talaq: An endless fear of instant divorce