By Shrungar Bhuva
21 March 2016
Islamic law has often been said to be biased against women. One of the most widely criticized aspects of Muslim Personal Law is the Talaq-e-Bid’at or triple Talaq, which allows a man to divorce his wife by simply saying 'Talaq' three times. This archaic custom has been recently challenged in the Supreme Court of India as illegal, unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution of India.
It has been repeatedly noted by eminent scholars that this practice has no foundation in the Holy Quran. In the Quran, Nikah is said to be 'Misaqan Ghaleeza', a strong bond. Thus, it follows that such a bond cannot be dissolved whimsically, without proper reason or method.
Professor Tahir Mahmood, an internationally recognized expert on Muslim Law who has formerly served as the chairman of the National Commission for Minorities explains the basis of the Talaq provisions in the Holy Quran:
The social condition prevailing in the pre-Islamic period [was that] husbands would divorce their wives temporarily, because every divorce was revocable till the Iddat period [This corresponds to roughly three months, the expiry of which leads to couples separating]. They would divorce their wives, revoke it on the last day of Iddat, enjoy them for some time and again divorce. Basically, they kept playing hide and seek with wives all their lives.
In order to combat this social evil, the Quran declared that a person can revoke his divorce only twice. This means if the husband divorces his wife a third time, the marriage is instantly dissolved, irrespective of the Iddat period.
The relevant Quranic verses pertaining to divorce is verse 2:229-30 which opens with Al-Talaqu-Marratan which means 'divorce may be pronounced twice.' Maulana Usmani opines that the word 'marratan' itself implies a gap of time between the two pronouncements of divorce. It is during this period that attempts at arbitration and reconciliation have to be made. After this period, if the differences cannot be resolved, a final and irrevocable third Talaq is to be pronounced, for it has been said that a woman must either be retained in honour or released in kindness.
However, the question arises that despite Talaq-e-Bid’at having no foundation in the Holy Quran and being against the Quranic will, would it be binding in the event that it was pronounced?
Here, Maulana Usmani turns to Hadith literature which is a revered source of Islamic law. Usmani narrates the story of Rukanah, who pronounced three divorces against his wife, but later regretted his decision. When the Prophet asked him how he had divorced his wife, Rukanah replied that he had pronounced three divorces in one sitting. The Prophet then told him to treat it as one divorce, and that he could take his wife back.
This Hadith of the Prophet, narrated by Ibn Abbas, can be found in authentic collections of Hadith literature. Thus it is proved by this Hadith that during the time of the Noble Prophet, if someone tried to invoke triple Talaq, it would be considered as one pronunciation only.
In line with the view that this form of Talaq is against the Quranic will, a large number of Islamic nations including Saudi Arabia, Iraq and Pakistan, have either restricted or abolished this practice. Countries like Iran, Tunisia and Indonesia require that all divorces must go through a court, and hence do not recognize triple Talaq at all, points out Nafisa Hussain, a member of the National Commission for Women.
It comes as an unpleasant surprise then, that in October 2015, the All India Muslim Personal Law Board (AIMPLB) rejected suggestions to outlaw this repugnant practice and its spokesperson Abdur Rahim Qureshi went as far as to say that despite it being a "crime" there was "no scope" for change.
It is up to the Supreme Court to decide the fate of Muslim women in India, and act as the harbinger of positive reform.
However, in his book Introduction to Muslim Law, Professor Tahir Mahmood writes, "In India, Muslim Law is applied as a part of the country's civil law, and not as a part of the Muslim religion. It does not enjoy any special status so as to be protected by the religious liberty provisions of the Indian Constitution." He further explains that Indian family law is subject to changes, amendments, alterations and deletions made by the competent authority i.e. the Parliament and Supreme Court. He also points out that an explanation in Article 25 of the Constitution of India states that freedom of religion will not preclude the State from introducing social reforms and enacting laws on subjects traditionally associated with religion. However, the Supreme Court has made it clear that laws relating to marriage are not a part of religion.
It is clear that this abhorrent system of divorce was never encouraged by Islam, and specifically goes against the Quranic spirit. Countries which follow Islamic laws have also severely restricted, if not completely derecognized this practice. For the past decade, Muslim women's organizations as well as several other interested parties have been demanding that the practice of triple talaq be abolished. Now, it is up to the Supreme Court to decide the fate of Muslim women in India, and act as the harbinger of positive reform.