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Islamic Sharia Laws ( 7 Feb 2009, NewAgeIslam.Com)

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Drunken Talaq: How Some Fatwas Distort Islam And Oppress Women

By A. Faizur Rahman

The Darul Uloom Deoband and the All India Muslim Personal Law Board are in the news again for the wrong reasons — the former for issuing another misogynist fatwa, and the latter for supporting the former’s obscurantism. The misfeasance in question this time is the pronouncement that talaq uttered by a Muslim husband in a drunken state is valid. This nonsensical ruling has once again exposed the medieval bias of some Muslim clerics.

 This fatwa is not just bad in law but also bad in theology, as it is not based on the Quran, the locus classicus of Islam. The Deoband muftis have been honest enough to concede that their recent articulation is grounded in the Hanafi law. It is common knowledge among Muslims that the Hanafi fiqh contains many provisions that are repugnant to reason. For instance, according to Al-Marghinani’s Hedaya, one of the most celebrated treatises of Hanafi legal thought, the wife of a missing or absconding husband can remarry only after a minimum of 90 years have elapsed from the day of his birth.

Not surprisingly, on the issue of divorce by a drunken husband, the Hedaya and other Hanafi books, including the oft-cited Al Radd al Muhtar of Ibn Abideen, state that if the liquor consumed has reached the prohibited level of intoxication [which is again a subjective issue] then the talaq uttered in such a state shall be held valid. It may be pointed out here that Ibn Abbas and Caliph Usman were of the view that talaq under the influence of drink was not effective because of the incapacity of the drunken person to exercise reason [see Bukhari]. But Hanafi jurists of the medieval period, in a weak attempt to bypass this opinion, justified their ruling, claiming that it was only aimed at discouraging the use of liquor. The question is, should the dissuasion of alcoholism be at the cost of a marriage where in most cases the affected party is the hapless wife and her innocent children?

The Deoband fatwa is also flawed because of its inherent presumption that the pronouncement of three talaqs in one sitting breaks the marital tie instantaneously. This practice finds no support in the Quran which should be the basis of any Islamic legal formulation. It is astonishing that this fact is ignored by many sectarian schools of thought.

It must be understood that the philosophy of the Quran revolves around the principles of natural justice, fairness and equity, and hence, any law that contravenes or abridges the rights arising out of these standards of ethics shall be void. But the continued intransigent refusal of some narrow-minded ulema to see reason makes it imperative to analyse the procedure of talaq mentioned in the Quran to expose the illegitimacy of their fatwas.

The Quran has dealt with the issue of talaq at length in three major chapters, namely, Al-Baqara, Al-Nisa and Al-Talaq.

Four steps are necessary before the first talaq, as laid down in Surah 4: 34-35.

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, then as a next step, the parties are asked to sexually distance themselves [wahjuru hunna] from each other in the hope that temporary physical separation may encourage them to unite.

If even this fails the husband is instructed, as a third step, to once again explain [wazribu hunna] to his wife the seriousness of the situation and try to bring about a reconciliation. For instance, in pursuance of wazribu hunna, the husband may not be wrong in pointing out to his wife that if they do not resolve their differences soon enough, their dispute may go beyond the confines of their house and become a subject of gossip, which may not be in the interest of both parties. This would be true, because, if the dispute still remains unresolved, as a fourth step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution. It may be noted here that the word wazribu hunna [derived from the triliteral Arabic root Zaraba] does not mean “to beat” the wife, as explained in most translations of the Quran. The context of the verse does not support this meaning.

AS LAID DOWN in Surahs 2:228-232 and 65:1-4, it is only after the failure of the aforementioned four attempts at reconciliation that the Quran allows the first talaq to be pronounced, followed by a waiting period called the iddat. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses [2:228-229]. For women who have passed the age of menstruation the period of iddat is three months, and in the case of pregnant women it is till the termination of pregnancy [65:4].

And if the parties are unable to unite during the period of iddat as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddat [2:231]. Once the final talaq has been invoked the marital bond is severed and the parties cease to be of any relation to each other. However, even after the period of iddat has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced. It says, “When you divorce women and they complete their term [iddat], do not prevent them from marrying their husbands if they mutually agree on equitable terms” [2:232]. In other words, after the expiry of iddat, as per verses 2:231 and 232, the parties are given the options of remarriage or permanent separation — the separation being the third and the final irrevocable talaq to be pronounced in the presence of two witnesses [65:2].

Only after four serious attempts at reconciliation is a Muslim husband permitted to divorce his wife once, or twice within the period of iddat to resume conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddat he can either re-contract the marriage on fresh and mutually agreeable terms or irrevocably divorce her by pronouncing the third and the final talaq within a reasonable period of time. However, to emphasise the sanctity of marriage and the enormity of breaking it for frivolous reasons, the Quran warns that once the parties choose to separate after the expiry of the iddat, they cannot entertain hopes of marrying again unless the wife takes another husband and the second husband divorces her [2:230]. It is understood here that a divorce may result only if the new husband has serious differences with his wife, and in the rare event of such differences cropping up, he is required to follow the Quranic procedure of divorce as discussed earlier. The extreme unlikelihood of this happening serves as a severe deterrent against arbitrary divorce.

But unfortunately, this Quranic injunction [of 2:230] has been abominably circumvented by some ulema to overcome the impracticality of instant triple talaq law of the Hanafi school. To help the victims of this law they set up a pliable person who marries the divorced wife, consummates the marriage overnight and divorces her the next day so that the original husband can remarry her in accordance with 2:230. This outrageousness which an innocent woman [and also her angry or drunk husband] is subjected to for the ruthlessness of an un-Islamic and inhuman law is known as Halala.

 It would have been more appropriate if they had called it Harama. Although many ulema have outlawed this disgraceful practice, it still prevails clandestinely among some followers of the Hanafi sect.

THE DEOBAND fatwa legitimising instant talaq under the influence of alcohol goes against the very spirit of the procedure of divorce laid down in the Quran, which is to give the parties maximum time and opportunity for reconciliation. The Prophet when he was informed about a man who gave three divorces at a time was so enraged that he said, “Are you playing with the Book of Allah who is Great and Glorious while I am still amongst you?” [See Mishkat-ul-Masabih.]

In the absence of any initiative from Muslim theologians to abolish it, courts in India are forced to uphold the validity of triple talaq on the principle of stare decisis, declaring the practice to be “good in law though bad in theology”. The precedent cited is the Privy Council judgment in the case of Aga Mohammad Jaffer vs Koolsom Beebee [(1897) 25 Cal. 9, 18, 24, IA. 196, 204], wherein it was held that it would be wrong for the courts to put their own construction on the Quran in opposition to the express ruling of commentators of “such antiquity and high authority”.

A Muslim husband is not entitled under the Quranic law to pronounce even one talaq without having first exhausted the four reconciliation attempts mentioned in 4:34-35. Triple talaq pronounced in one sitting either in a state of sobriety or inebriety has no legal validity and it does not break the marriage.

A. Faizur Rahman is a Chennai-based freelance journalist and a student of comparative study of religions

Source: to 15th February, 2009





By Arif Mohammed Khan

Source: to 15th February, 2009 

In 1985-86 the All India Muslim Personal Law Board spearheaded a protest movement against the Supreme Court judgment in the Shah Bano case. The board dubbed the judgment “interference in religion” and a threat to the special identity of the community. They achieved significant success when Government succumbed to their pressure and enacted a new law called Muslim Women [Protection of Rights on Divorce] Act 1986. After tasting victory, the Personal Law Board started behaving for all practical purposes as the sole spokesman of the Muslim community. As a body of professional clerics from madrasas they revived the demands to set up a parallel judiciary and called for the appointment of kazis to administer Muslim law.

In May 2001, they published a “Compendium of Islamic Laws” providing section-wise codification of Muslim Personal Law for the “benefit of the practitioners of the modern law, judges, scholars and students”. Clearly, the purpose of this publication is to ensure that the judges of the Indian courts decide personal law cases as per their exposition, as, according to the Muslim Personal Law Board, the interpretation of Muslim law is their exclusive prerogative and any new interpretation by the courts amounts to interference in religion.

I have taken some provisions from the Compendium, particularly on the subjects of “Equality in Marriage” and “General Principles of Divorce”, to compare them with the provisions of the Quran, the Magna Carta of Islam. Since the Compendium claims to be a compilation of “Islamic Laws”, it is only right to test the veracity of the claim on the touchstone of the Quran.

To begin with the Compendium, in Part 1, Chapter 7, under the title of “Equality in Marriage [Kafaayat]” it is said:

Section 117[3]: Regard shall be had in respect of descent among the Arabs, especially Quraish and those non-Arab families who have preserved descent. People in the rest of the non-Arab Muslim world are mutually equal. On the basis of this principle a girl can get terminated her marriage to a non-equal contracted by her guardian and a guardian has the right to terminate the marriage of an adult woman to a non-equal.

The Compendium divides Muslims into three categories on the ground of race: 1. Muslims of Arab origin; 2. Muslims of Indian origin who have preserved their descent; and 3. other Muslims who are equal among themselves but do not enjoy parity with Muslims falling in the first two categories.

 NOW LOOK what the Quran says on the question of descent and honour. It says:

“O mankind! We created you from a single [pair] of a male and a female and made you into nations and tribes that you may know each other [not that you may despise each other]. Verily the most honoured of you in the sight of Allah is [he who is] the most righteous of you [49.13].”

The Quran emphatically lays down that all mankind has descended from one male and one female; the tribes and nations are merely source of identity, but honour belongs to the righteous. Does this verse leave any scope for categorisation on racial grounds?

There is a famous Prophetic declaration made after entering Mecca in 630. It said: “O people of Quraysh, surely Allah has abolished from you all arrogance of ignorance and pride in ancestry. Mankind is descended from Adam and Adam was made from clay.”

There is another beautiful tradition of the Prophet saying: “Your Rabb [Lord God] is one and your Abb [father] is one.”

These are not mere pious declarations, but practical realities of Prophetic life. Imam Zainul Abideen summarised them pithily in his letter addressed to the Umvi ruler Abdul Malik. It is reported that the Imam, who was a great-grandson of the Prophet, had married a freed slave woman and later got his daughter married to a freed slave. This news aroused the racial arrogance of Abdul Malik who denounced the Imam for marrying his daughter to a former slave. Imam wrote to him saying that “The Prophet had married a slave girl after freeing her and gave his first cousin Zainab in marriage to the former slave Zaid to put an end to racial arrogance. If I wish to follow the lofty example of the Prophet, you have no cause to begrudge it.”

 IN PART 2, Chapter 2, on the General Principles of Divorce [talaq] the Compendium says:

Section 5[b]: For the effectiveness of talaq it is, in principle, necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment. But if a person has consumed any intoxicant as a treatment, or under compulsion or strong pressure or in ignorance, and pronounces talaq in that state, it will not be effective.

Section 6: If a person under compulsion or duress pronounces talaq it will be valid if it is verbal, but not otherwise.

Section 7: A talaq pronounced in jest [hazl] also becomes effective.

Chapter 4: Express [sareeh] Talaq, Rule of Express [sareeh] Talaq

Section 15: The rule of expressing talaq is that it will effect a divorce without intention.

Chapter 5: Symbolic Expressions

Section 27: If a man uses for his wife symbolic expressions of divorce, a talaq will be effective by these words if he intended it, or if there is some context pointing out to a divorce.

It is clear from the provisions that, according to the Personal Law Board, divorce becomes effective when pronounced, 1. under an inebriated condition; 2. under compulsion or threat; 3. in jest; or 4. even through the medium of symbols. All these eventualities raise questions about the intention of the man pronouncing the divorce. To take care of these doubts the learned ulema of the Personal Law Board have clarified that the pronouncement of talaq is sufficient to make it effective even in the absence of intention. The whole emphasis, it appears, is on making talaq easy and simple for the man, without bothering about its disastrous impact on the wife and children.

 NOW LET US see what the Quran says about action devoid of intention, compulsion and saying in God’s name something that separates people instead of bringing them together.

“Allah will not call you to account for that which is unintentional in your oaths, but He will call you to account for that which your hearts have earned [2.225].

“Allah accepts the repentance of those who do evil in ignorance and repent soon afterwards; to them will Allah turn in mercy [4.17].

“And make not Allah’s [name] an excuse in your oaths against doing good or acting rightly or making peace between persons [2.224].”

The Quran specifically lays down that pronouncements made without intention are beyond scrutiny and actions done in ignorance deserve pardon.

There is a prophetic tradition that says that “the reward of deeds depends upon the intentions and every person will get the reward according to what he has intended”. The Quran and Hadith both hold intention important to decide culpability, but the ulema of the Board have declared pronouncement without intention enough ground to separate man and wife.

The Quran does not recognise any irregular pronouncement of divorce. Before the Prophet, Arabs used to divorce their wives by saying that your back is to me like my mother’s back. The Quran banned it and said: “If any men among you divorce their wives by zihar [calling them mothers] that cannot be allowed: none can be their mothers except those who gave them birth [58.2].”

 IN ISLAMIC morality, divorce is the “most odious amongst permissible” and this option can be exercised only as a last resort, when every other possibility of keeping the marriage intact has failed. The Quran lays down the procedure in detail and, unlike the Compendium of the Board, recognises neither instant divorce nor a divorce pronounced under compulsion or inebriation.

The Quran says: “O Prophet! When you divorce women, divorce them at their prescribed periods and count [accurately] their prescribed periods: and fear Allah your Lord: and turn them not out of their houses nor shall they leave except if they are guilty of some open lewdness. Those are the limits set by Allah, and any who transgresses the limits of Allah does verily wrong his [own] soul. You know not if perchance Allah will bring about thereafter some new situation [65.1].”

 The Quran repeatedly asserts that “no change can there be in the words of Allah [10.64]”. It means that for any rule or law, to be Islamic, it must be consistent with the provisions of the Quran. Once this position is accepted it will become easy to make the distinction between “Quranic laws” that release mankind “from their heavy burdens and from the yokes that are upon them [7.157]” and the “cleric laws” that “mislead [men] by their appetites unchecked by knowledge