By Hanif Murad
November 4, 2016
The unilateral triple Talaq, which Muslims are made to believe is based on divine revelation, is nothing but a legal evasion devised by an acquiescent Muslim clergy at the behest of the Omayyad monarchs. This happened during the second century of the Muhammadan era much after Prophet Muhammad had passed away.
It was done to bypass the true triple Talaq as formulated in the Quran. Therefore, this sacrilegious triple Talaq in one sitting is called Talaq-ul-Bid’at – a heretical Talaq. It ought not to have been on the statute of Muslim personal law.
The true triple Talaq, as ordained by the Holy Quran, is one of the more humane therapies to deal with a downward spiralling marital relationship. Importantly, the most significant injunction in the triple Talaq therein is that after each pronouncement of Talaq, there has to be compulsorily a period of waiting or Iddat that provides a timeout to reflect on the alternatives to a divorce.
Therefore, the instant triple Talaq as permitted by the Muslim personal law not only negates the road map of the true triple Talaq laid down in the Quran but also gives Islam a bad name. Hence, as the heretical triple talaq is sanctioned neither by the Quran nor by the Prophet’s precepts, it would be legitimate to remove it from the Indian laws and abide by the one and only true triple talaq as set out in the Quran. Only this talaq should continue to remain as part of the Muslim personal law.
As a first step, even before the first Talaq can be uttered, the Quran commends a meeting of well-wishers, representing both the sides, to try to save the marriage. However, if they do not succeed then the first of the three Talaqs may be invoked. The Quran once again lays down the propriety for it when it says in Verse 65.1: “When ye do 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.”
Once the first Talaq is uttered, during the prescribed waiting period or thereafter, the separated couple can reconcile and resume their marital relationship with a fresh Nikaah. However, if after a period of time, friction again arises between them, they can opt for a second Talaq following the same sequence as the first.
After having gone through, over a phase, the process of remarrying the same spouse twice, should further discord or strife arise between them, then the third Talaq can be uttered. This time it is irrevocable. As the Quran says in Verse 2.229: “A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness.”
The Quran goes on further to say in Verse 2.231: “But do not retain them against their will in order to hurt [them]: for he who does so sins indeed against himself … and remain conscious of God.” Therefore, there is a certain code of compassion to be observed in the true triple talaq as laid down in the Holy Quran.
The next issue is the provision of maintenance for the divorced wife. The Quran says in Verse 2:241, “And the divorced women, too, shall have [a right to] maintenance in a goodly manner: this is a duty for all who are conscious of God.” Muhammad Asad has interpreted goodly manner in his commentary in The Message of Quran as, “The amount of alimony – payable unless and until they remarry – has been left unspecified since it must depend on the husband’s financial circumstances and on the social conditions of the time.”
When this Verse or Aayat 241 in the Quran was pointed out to the All India Muslim Personal Law Board, this is what the then Chief Justice of India YV Chandrachud said in his order in the Shah Bano case (1985): “Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aayat 241, the exhortation is to the ‘Mutta Queena’, that is, to the more pious and the more God-fearing, not to the general run of the Muslims.” This contention of AIMPLB is, to put it mildly, an affront to the piety of the Muslim community.
However, beyond the unwarranted stand of AIMPLB, which plays into the hands of the extremist right-wing Sangh Parivar, lies a resolution to the larger issue of Uniform Civil Code. It is in the fact that the marriage, according to Islam, is not a sacrament but a civil contract. Pakistan Supreme Court has said, “Among Muslims, marriage is not a sacrament, but is in the nature of a civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties.”
This renders Nikahnama (Muslim marriage contract) spiritual, secular and, above all, adaptable. Thus when the Uniform Civil Code comes to be written, it could be Advantage, Muslims. As Salman Khurshid, former Union minister, has said in his foreword to Mulla’s Principles of Mohammadan Law (20th Edition), “There is, for instance, much to learn from the contractual nature of Nikah.”