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Islamic Sharia Laws ( 9 May 2009, NewAgeIslam.Com)

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The evil of triple divorce – an unmitigated monstrosity

The concept of Talaq-e- Bidat does not fall amongst those pious Islamic institutions which, if criticised, may make the critic guilty of blasphemy, argues M.K. Sherwani


      It is indeed a tragic commentary upon the issues associated with religious sentiments  that they often succeed in obscuring the  rational faculties to the extent  that the main controversy gets buried  under trivialities . This is what happened with Justice H.N. Tilhari’s historic judgement on the Quranic validity  of the so-called ‘triple divorce’.


       What was assailed by the  Honourable Judge  was not the infallibility  or sanctity  of Quran, Hadith or Sunna   but  a reprehensible practice  which not being even remotely  authenticated  by any of the three, is being attached religious significance. Already under severe attack  from and not  adhered to  by most of the segments  of Islamic society , the concept of triple divorce ( Talaqe Bidat) does not fall amongst those pious  Islamic institutions  which, if criticised , may make the critic  guilty of some  blasphemous act. However, whether or not the judiciary is within its powers to call a spade a spade while dealing with an issue of religious denomination or whether or not the circumstances of the case did justify the disquisition on whole of Shariat law are not of much relevance for us at present.


        A sense of restlessness, no doubt is visible   in the Muslim community  over the inertia  displayed by mullas  even under these strained circumstances  in either unequivocally endorsing or disputing  ‘Talaqe Bidat’ as  the triple divorce is  commonly known  in Islamic parlance.Now when this monster, embellished as a bride  is being taken to the Supreme Court, we must try to disclose  its real  Quranic identity and ascertain its legitimacy.


   QURANIC CONCEPT OF DIVORCE:   The Holy Quran, while stressing the sanctity of matrimonial bonds, allows their discontinuation, not according to the arbitrary will of the husband but according to certain objective considerations. Thus comes the first command –


        “ As to those women  on whose part ye fear disloyalty and ill-conduct, admonish them (first ) ,(next)  refuse to share their beds, and (last) beat them(lightly).But if they return to obedience, seek not against them means (of annoyance), for God is  most high,Great (above you all)”


       “ If ye fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers. If they wish for peace, God will cause their reconciliation    for God hath  full knowledge and is acquainted with all things.” 


( Sura Nisaa – Translation from ‘The meaning of  Glorious  Quran’ by Abdullah  Yusuf Ali, page 190-191, Volume I)


        When the means mentioned in the above injunctions have been exhausted, then arises the question of divorce and for that final unfortunate  possibility too, guidelines of imperative nature have been issued. Thus comes the  divine declaration.


    “Prophet!  When ye do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods. And fear God, your Lord and turn them not out of their houses, not shall they (themselves) leave, except in cases they are guilty of some open lewdness. Those are the limits set by God and any who transgresses the limits of God, does verily wrong to his (own) soul. Thou knowest not if per chance, God will bring about thereafter some new situation.”


       “Thus when they fulfil  their term appointed ,either take them back on equitable  terms or part with them on equitable terms and take  for witnesses  two persons from among you , endured with justice  and establish the evidence( as )  before God. Such is the admonition given to him who believes in God and the last day and for those who fear God, He (ever) prepares a way out”.


      “Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubt, is three months and for those who have no courses (it is the same). For those who carry (life within their wombs), their period is until they deliver their burdens. And for those who fear God, He will make their path easy.” (Sura Talaq, translation from ‘The Meaning of Glorious Quran’ by Abdullah Yusuf Ali, Volume II, pages 1562-1564)


       A reading of these provisions  is enough to convince  one that  firstly the revocation of marriage through  divorce  is the last option when all the reconciliatory measures  have become infructuous  and secondly it is to be operative  within a specific time frame and that too when it has been preceded  and followed by the procedure  with which Quran circumscribes the  provision. Finally the presence of two witnesses is indispensable. The Quranic philosophy of divorce is further buttressed by the Hadith of Prophet wherein he warned, “Of all things which have been permitted, divorce is the most hated by Allah”. It goes without saying that he would have referred to the divorce as is stipulated by Holy Quran and not to the one as we have come to understand it. As such in both forms i.e. Talaqe Ahsan (most approved )  and Talaqe Hasan ( approved) into which Talaq al Sunna ( i.e. in conformity with  the dictates  of Prophet ) has been categorised  according to  a slight  variation in interpretation, the quintessence of the provisions remains  totally unadulterated.


       What emerges as the logical conclusion from the numerous Quranic verses  is the fact  that various aspects such as marriage, divorce , husband’s liabilities towards wife and the inheritance  have been interwoven  into a  composite whole. An isolated treatment of any of them will take us too far  from rationalism- the most important attribute of Islam.


      TRIPLE DIVORCE  or TALAQE  BIDAT (i.e. of innovation and, therefore, not approved) ( Meaning by Asaf A.A. Fyzee, Outlines  Mohammadan Law, Fourth  Edition, page,151)


            There is complete unanimity of opinions that in Islamic parlance the term ‘Bidat’ is used for all those practices which originated after Holy Prophet (peace be upon him). As such the use of this word as  suffix with  ‘talaq’ may be interpreted as  a clear  indication  that this form was  definitely  not authenticated  by Hadith or Sunna.  If it were not so, the term ‘Bidat’ would not have been allowed  and if it is really so , it remains a moot point why in their ruthless crusade  against all forms of  ‘bidat’, the Muslim theologians  are not riding roughshod over the one relating to divorce. Having  been deliberately allowed  over the centuries  by the vested interests  to degenerate to a point  where its operational effectiveness remains unchallenged  even when pronounced jokingly, in a state of anger or intoxication  or under compulsion, this form of divorce is  obtaining  only in India and that too amongst  the Hanafi Muslims. The ambivalence of the position is conspicuous in the words of Maulana Mufti Mohd. Shafi of Pakistan “there is consensus that triple divorce is totally forbidden (haram) but simultaneously there is also the consensus that if one pronounces it, it becomes effective.”(Maruful-Quran,Volume VIII,page,484)


    BACKGROUND: Despite being highly discursive, the arguments of those who hold that this form of divorce too does not lag behind others in hitting the target,  are based mainly on the following two points.


1. That Hazrat Umar, the second Caliph used to order the public flogging of the person who happened to pronounce triple divorce in a single say but conceded it s irrevocability.


2.That its pronouncement is  to be likened to  a fatal blow, the effect of which  operates  independently of  the mental condition of  the person who administers it and, therefore, proceeding on this analogy, the guilt of  the husband in disregarding  the prescribed procedure  will not neutralise  the  effect of divorce on wife.


     Apparently carrying conviction, both the arguments are not strong enough to stand the logical test.


 EXAMPLE OF HAZRAT UMAR: That  Hazrat Umar  used to order the public flogging  of the person pronouncing  triple divorce in a single say is beyond  all dispute but nobody has  so far provided  a convincing reply regarding  the continuation of this practice  when its deterrent aspect has become a thing of past. It is also not so that providing deterrence in such matters is the prerogative of Islamic states only. Had an initiative to that effect come from those who derive the force of triple divorce from Hazrat Umar, the Govt., while passing the Muslim Women (Protection of Rights on Divorce) Act, 1986, would have willingly incorporated into it, a provision for punishment, whether by fine or imprisonment of those dissolute husbands who indulge in this abominable practice. Such a step on the one hand could go a long way in setting right the distortions in the whole concept of divorce and on the other could save the government from the criticism of those who sometimes rightly deplore the predicament of Muslim women.


       Even in the absence of such a legislative measure, the theologians within whose domain  lies the indisputable power  to issue religious edicts  in such matters  can easily  tie up the guilt  with punishment and provide  the pattern of Hazrat Umar that such a divorce will, as a rule , be followed by the flogging of the guilty  husband  within the precincts of the mosque  of  his locality  or else he will not be allowed  either to enjoy the fruits of  Muslim Women Act or to derive any advantage  on that basis  from any other law of the land. 


        Besides, it is not believable  that a devout, strict and austere administrator  like Hazrat Umar would have  clubbed together all the  self-contradictory notions like willingness ,compulsion, anger , joke and  intoxication  as a  uniform pattern producing the same effect and followed by the same  amount of punishment.


2. MURDER THEORY - Sounding quite absurd, this theory fills one with a mixed reaction of disdain and ridicule. It is disdainful because the utterance of a few words ‘Talaq, Talaq, Talaq’ is compared to murder as regard the wife. It is ridiculous because the husband, definitely a murderer according to this analogy is successfully manipulating to have his punishment deferred to the Doomsday.


      As this obnoxious practice has  muddled  the whole  Quranic scheme of divorce ,we must give weightage to the advice of Badruddin  Tyabji, “ Muslims  can come to terms with  the contemporary world  only if they go straight  back  to the Quran and renew their  faith and belief by seeking direct  inspiration  and guidance from it.” (The Self in Secularism, 122(1971)

  Dr. Mustafa Kamal Sherwani,LL.D.,  Lucknow, U.P. India

Source: (The Pioneer, Lucknow, [Law], May, 27, 1994, p.7)


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