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)