“ The question which is likely to confront Muslim countries in the near future is whether the law of Islam is capable of evolution- a question which will require great intellectual effort and is sure to be answered in the affirmative.” – Dr. Sir Mohammad Iqbal
This quotation of the clairvoyant poet was cited by the Hon’ble Supreme Court of India in the Shah Bano case in 1985.
In the past, there have been several cases of Muslim women who have been voicing against the vice of ‘triple talaq ’ since 1976, fighting cases right up to the Supreme Court, such as Bai Tahira, Fuzlunbi, Zohra Khatoon, Shah Bano, Shamim Ara, Iqbal Bano, Shamima Farooqi. The latest among many Muslim women voicing against the most controversial practice of ‘talaq, talaq, talaq’ are Shayara Bano and Aafreen Rehman who have moved the Supreme Court recently. Lawyers Update talked to learned scholars of Muslim law and the Minister of State for Minority Affairs, to assess the background of the problem.
A Division Bench of Justices Anil R Dave and A.K. Goel entertaining her plea on February 29, 2016, issued notice in a petition filed by Shayara Bano from Uttrakhand. Shayara Bano’s petition stated that she was subjected to cruelty and dowry demands from her husband. She also alleged that she was given drugs for memory loss, in the result of which she became critically ill, and at that point her husband divorced her by triple talaq.
In addition to challenging the divorce deed, the petitioner has challenged the constitutionality of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, in so far as it seeks to recognize and validate polygamy, triple talaq (talaq-e-bidat) and nikah halala. She has also challenged the Dissolution of Muslim Marriages Act, 1939, in so far as it fails to provide Indian Muslim women with protection from bigamy. Similarly, in the case of a Jaipur woman Aafreen Rehman, the Supreme Court has recently issued notices to her husband, the Centre, the Ministry of Law and Justice and the All India Muslim Personal Law Board to give their replies within 30 days.
In Islam there are numerous sects and broadly five schools of theology— four of the Sunnis and one of Shia Muslims. As such, there are variations in the forms of divorce in Islamic laws. Among the majority sect of Sunnis, the following forms of divorce are prescribed:-
Divorce by Talaq: Any Muslim of sound mind who has attained puberty may divorce his wife whenever he desires without assigning any reason. This form of divorce, according to many Sunni schools of theology is pronounced in three ways:
a. Talaq Ahsan: This consists of a single pronouncement of divorce made during a tuhr (period between menstruation) followed by abstinence from sexual intercourse for the period of iddat (Iddat is a period of four months in which a woman remains in seclusion and cannot marry a second husband).
b. Talaq Hasen: This consists of three pronouncements made during ‘successive tuhrs’ with no sexual intercourse taking place during any of the three tuhrs.The first pronouncement of talaq should be made during a tuhr, the second during the next tuhr and the third during successive third tuhr.
c. Talaq-ul-Biddat: This consists of: (i) three pronouncements made during a single tuhr either in one sentence, e.g; “I divorce thee, I divorce thee”, I divorce thee; or (ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g; “I divorce thee irrevocably”.
As such, there are other forms of divorce like, Contingent Divorce, Ila, Zihar, Lian, Khula, Mubara’at, which need no elaboration here.
In fact it is this form of talaq-ul-biddat, which has, of late, become the centre of controversy to a great extent. The first two talaqs among Sunnis are considered to be as Sunnat (tradition of the Prophet); whereas, talaq-ul-biddat (innovation) as the name suggests, has been innovated by someone else other than the Holy Prophet of Islam.
Talking to Lawyers Update, Kamal Faruqui, Member Executive, All India Muslim Personal Law Board said that the procedure of Talaq-ul-biddat was introduced by Umar Farooq, the second Caliph of Islam and since then the tradition of Umar Farooq is being followed. Explaining the background of the innovation, Faruqui said, “ One day a Muslim woman came crying to Umar Farooq and complained that my husband who has pronounced the first of the three talaqs, thrashes me and threatens me that he will pronounce the other two talaqs also. Umar Farooq got enraged and summoned the husband of the woman, and forced him to pronounce the two remaining talaqs right then, and also ordered 40 lashes to be thrashed on him. Ever since, the practice is continuing.” Faruqui was, however, in favour of retaining this practice, albeit he feels that it is a harsh procedure. When asked why it should not be abolished, Faruqui said that as such any divorce is very unfortunate. Marriage is a sacred institution of any society including the Islam but thinking to abolish the triple talaq will be an act of interference in the Muslim Personal Law and there is no scope to change in the system.
However, a learned Sunni scholar, Dr. Mufti Mohammad Mukarram Ahmed, Shahi Imam of Masjid Fatehpuri though voted in favour of this mode of talaq but denied it to be the introduction of Umar Farooq. He said that this form was devised by Imam Abu Hanifa, who had been in association of about 12 ex-companions of the Prophet and after discussing with those companions, Imam Abu Hanifa introduced and innovated this procedure.
Dr. Ahmed said,”as such talaq is a deadly proposition but at times it becomes a compulsion, there being no other way out where reconciliation is not possible.” Dr. Ahmed was, however, in favour of counselling before the talaq. But practically speaking, in talaq-ul-biddat, counselling is not possible as the three pronouncements in one go are the outcome of sudden outburst in a single tuhr, leaving no room for reconciliation or reunion, as soon after the three pronouncements at one go, the divorce is complete and the woman is no more the wife.
On the contrary, in Mulla’s “Principles of Mahomedan Law”, 18th Edition, Justice M. Hidayatullah, former Chief Justice of India, on page 330 writes, “Talak-ul-Bidaat was introduced by the Omeyyade monarchs in the Second century of the Mahomedan era.” Whereas, in his introduction of the book, Justice Hidayatullah asserts that “ Muawia was the first Caliph of the House of Ommeyya. He was, of course not universally recognized by the Arabs. He nominated his son Yazid. When the Ommayads became rulers, the Caliphate became reqular kingship and some of the vices, for which Middle East was known again crept in.” It was Yazid who had mercilessly assassinated Hazrat Imam Husain, the grandson of Prophet Mohammad and 72 of his family members in the desert of Karbala. But let that be the narrative of the historians as to who introduced the talaq-ul-biddat, the fact remains that this procedure is being widely criticized.
Giving his views, Dr. Tahir Mahmood, former Dean Faculty of Law, University of Delhi and former Chairperson, National Minority Commission said that the practice of talaq was most certainly not introduced by Islam; it was rampant in the Arab society of the time and Islam tried to gradually reform it in a very humane way. There is nothing in the law of Islam that suggests that the husband is free to pronounce talaq in an irrational or unreasonable manner. It allows talaq, subject to several conditions that are of a dissuasive nature; their purpose being to discourage the husband from exercising his right without careful consideration. There is nothing in the Holy Quran that shows this provision is discretionary.
Dr. Mahmood further said that for all the marital disputes the Quran clearly mentions that efforts should first be made for an amicable settlement before deciding to divorce for which two arbitrators should be there. “ And if you fear a breach between the two, then appoint a judge from his people and a judge from her people; if they both desire agreement, Allah will effect harmony between them; surely Allah is knowing, Aware.”—Holy Quran Chapter IV:35.
Dr. Mahmood feels astonished as to when the Quran says that a person cannot divorce his wife unless there is an arbitration or reconciliation process, which requires representation from both sides, how come then the Sunni maulvies without due process of reconciliation and arbitration accept triple talaq or talaq-ul-biddat as valid. He further pointed out that in Shia Muslim law, it is mandatory that divorce can only be pronounced orally by reciting prescribed words in Arabic called the “Seeghas” and necessarily in the presence of at least two male, adult, just and dependable witnesses.
Confirming Dr. Mahmood’s version, a Shia Muslim scholar, Maulana Jinan Asghar quoted the Holy Quran saying that it prescribes conditions and procedures for divorce in Chapter II:226-231, “ Those who swear that they will not go in to wives should wait for four months; so if they go back, then Allah is surely Forgiving, Merciful. And when you divorce women and they reach their prescribed time, then either retain them in good fellowship or set them free with liberty, and do not retain them for injury, so that you exceed the limits, and whosoever does this, he indeed is unjust to his own soul; and do not take Allah’s communications for a mockery…”. Maulana Asghar said that in Shia law there is no provision for instant divorce like talaq, talaq, talaq or talaq-ul-biddat. There have to be valid and genuine reasons for divorce. He further said that philosophically from the principle of reasonableness there is no common sense to pronounce talaq thrice at one time. “If you have to cut a thread with scissor, it will require only one cut and not three,” said Maulana Jinan Asghar.
Dr. Mahmood supported Maulana Asghar’s views by saying that just like Nikah, talaq too is not just a word the mere utterance of which will terminate the marriage, but a procedure which must be meticulously followed. Only if all the prescribed steps of this procedure have been duly undertaken will a marriage be dissolved.
Another Shia scholar Maulana Mohsin Taqvi pointed out that not only this that a Shia Muslim can not dissolve his marriage without procedure including the recitation of seeghas in the presence of two respectable and just witnesses but there is also a provision that after the talaq, a Shia Muslim woman remains in iddat for four months and ten days and in case, the husband so desires, then with the mutual consent of wife within the period of iddat he can call her back without the breakage of marriage.
A lady Shia Muslim scholar, Dr. Ale Taha, said that there are stringent conditions for divorce in Shia law and although in Islam the right to nikah is with the woman and right to divorce is with the man, there are provisions that a woman can take divorce which is called khula, but for that too there are conditions, for example the husband should be impotent or has deserted her for seven years or caused cruelty to her, etc.
About polygamy, Dr. Ale Taha said that for that too there are strict conditions. She quoted the Quran, “And if you fear that you cannot act equitably towards orphans, then marry such women (widowed mothers) as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then marry only one. This will prevent you from injustice. Beware! you have it not in your power to do justice between wives, even though you may wish (it).”—Chapter 3:129.
Supporting Dr. Taha’s contention, Dr. Tahir Mahmood said that unfortunately there are lot of misconceptions and distortions about polygamy in Muslim law projecting it to be an absolutely unfettered birth right of men, which is not the fact. This misconception has been clarified by the Hon’ble Supreme Court of India in Javed v. State of Haryana, AIR 2003 SC 3057, wherein it observed, “The Muslim law permits marrying four women. The Personal Law nowhere mandates or dictates it as a duty to perform four marriages. No religious scripture or authority has been brought to notice which provides that marrying less than four women or abstaining from procreating a child from each and every wife in case of permitted bigamy or polygamy would be irreligious or offensive to the dictates of the religion.”
Lawyers Update asked Mukhtar Abbas Naqvi, Minister of State for Minority Affairs, as to what he feels about bringing in the changes in the Muslim law so that the aggrieved women feel more satisfied. Mr. Naqvi said, “ Such matters relating to religion and culture are sensitive issues. If at all there is a feeling of making amelioration in the system, it cannot be done by danda (by force). No government can opt to make such changes. Despite of the best intention any move on part of any government will be misconstrued and misconceived. The best part is to hold a national debate of all the prominent scholars, who should reach some conclusion. Moreover, awareness is also necessary.”
When asked whether judicial intervention is a solution, Mr. Naqvi said that the Hon’ble Courts are free to give their judgments as they are the ultimate arbiters but it is still better to resolve such issues socially. “We should also study the changes made in other Islamic countries and that can give better stimuli to us for moving ahead,” said the Minister.