By A Faizur Rahman
07 Dec 2010
The recent spate of misogynist fatwas from the Darul Uloom Deoband proves that some Muslim seminaries are still stuck in the medieval era and have no plans to reform themselves despite the victimising role they play in the lives of the Muslims almost on a daily basis.While one of the fatwas legitimised triple talaq expressed in jest during an internet chat, the other validated its pronouncement over the cellular phone even when the wife was unable to hear it due to connectivity problems. The theological justification given by the Deoband muftis was that a marriage stands dissolved once the word “talaq” is uttered thrice by the husband irrespective of his state of mind at the time of saying the word.
This is not surprising because Hanafi ideology, the raison d’être of Deoband, legalises divorce under threat, fraud, influence of drink and even out of ignorance. It may be recalled that last year Deoband issued a fatwa validating triple talaq given by a drunken man, and it was fully backed by the All India Muslim Personal Law Board. The only form of triple talaq that Hanafi law does not recognise is the one pronounced during sleep!
Unfortunately, even the secular courts have not been able to go against the incorrigible medievalism of Muslim religious bodies. For instance, the Privy Council and the Calcutta High Court have held that divorce given in one sitting is effective even if issued under compulsion from threats. (See Rashid Ahmed Vs Anisa Khatun, I.L.R. 54 AII, 46 (PC), and Jarina Akhtar Khatun Vs. Hafeezuddin Khan, A.I.R. 1926 Cal. 242; 30 C.W.N. 178).
The Deoband fatwas on talaq are the very antithesis of the Quran and the teachings of the Prophet. For how can a marital relationship be broken unilaterally and irrevocably by one party when it has been described by the Quran as meesaaqan ghaleeza, a solemn agreement between two equal parties? By giving this absolute right to men the Hanafi patriarchs have legitimised a pre-Islamic practice which was abhorred and sought to be reformed by the Prophet. And it is for this reason that many Muslim countries have reformed their divorce laws.
For example, the Muslim Family Laws Ordinance, 1961, of Pakistan stipulates that all marital disputes must go through an “Arbitration Council” consisting of a chairman and a representative of each of the parties, and any man who wishes to divorce his wife must give the chairman a notice in writing and the talaq shall not be effective until the expiry of ninety days from the day of the delivery of the notice.
This is in keeping with the injunctions of the Quran in 4: 34-35, according to which the first talaq cannot be pronounced unless the parties have exhausted four option; a) resolving the conflict through discussions (fa’izuhunna), b) temporary separation (wahjuruhunna), c) more discussions (wazribuhunna) and d) arbitration by appointing two arbiters (hakam), one from each side. The Quran does not specify a time-frame for these four pre-talaq requirements.
Maximum time is give to amicably resolve the marital dispute. The waiting period of iddah comes into play only after the first talaq is pronounced, and 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 or suffer from amenorrhoea the period of iddah 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 iddah as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddah (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 iddah has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced (2:232). After the expiry of iddah, as per verses 2:231 and 232, the parties are given the option 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).
This being the Quranic procedure of divorce one fails to understand on what grounds the Hanafi jurists consider their interpretation of the talaq law as Islamically correct.
If truth be spoken, very little of the present day Hanafi law is based on the interpretations of Imam Abu Hanifa (699-767), the founder of the Hanafi school. Most of what is being implemented today in the Imam’s name emanated from his students Muhammad and Abu Yusuf, and other jurists who came much later such as Ibn Abideen (1198-1252) and Al-Marghinani (1152-1197), the authors of Hanafi treatises Radd al-Muhtaar ala Durr al-Mukhtar and Al Hidaaya respectively. Hence, the phrase “Hanafi law” is a misnomer as the great Imam would certainly have not approved of the unIslamic rulings that are being churned out today.
Imam Abu Hanifa belonged to the Ahl al-Raai school of thought who based his judgments on independent reasoning and logic, principles recognised and encouraged by the Quran and the Prophet. And any attempt to attribute to Imam Abu Hanifa outdated interpretations of Islam would amount to falsification of the Imam’s teachings. Deoband’s Hanafism is unjust and unIslamic.
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Source: Indian Express