India: The Muslim Law Board’s Decision on Triple Talaq is Irrational and Wrong (A. Faizur Rahman)

The Wire, 9 Sept 2015

The Muslim Law Board’s Decision on Triple Talaq is Irrational and Wrong

by A. Faizur Rahman

The All India Muslim Personal Law Board’s (AIMPLB) incorrigible obstinacy on the issue of instant triple talaq was on display yet again when, last week, it rejected suggestions to outlaw the abhorrent practice. The board’s spokesperson Abdur Rahim Qureshi was quoted as justifying the irrevocably binding nature of triple talaq despite its categorisation as “a crime” in the Quran and hadees. Not surprisingly, Qureshi did not bother to explain the reasoning behind the shocking legitimisation of an act considered illegal by the Quran and Prophet Muhammed, the original exponent of the scripture. Perhaps he expects Muslims to perpetually endure such incredible syllogistic fallacies that have come to define AIMPLB’s attitude towards Islamic law.

In this context, it is worth taking a look at the Quranic injunctions on divorce for a better understanding of marital rights in Islam.

Four steps before the first talaq

As a first step, when there is a marital discord, the Quran advises the husband to talk out the differences (fa’izu hunna) with his wife. If misunderstanding persists, the parties are asked to sexually distance themselves (wahjuru hunna) from each other in the hope that temporary physical separation may encourage them to unite.

And if this procedure too fails, the husband is instructed, as a third step, to once again discuss (wazribu hunna) with his wife the seriousness of the situation and try to bring about reconciliation. In pursuance of wazribu hunna, the husband shall explain to his wife that if they do not resolve their differences soon enough, their dispute will have to be taken beyond the confines of their house which may not be in the interest of both parties. This is because, if the dispute still remains unresolved, as a fourth step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution.

Three talaqs

It is only after the failure of the aforementioned four attempts at reconciliation that the Quran allows the first talaq to be pronounced followed by a waiting period called the iddah. Not more than two divorces can be pronounced within this period, the duration of which are three monthly courses. For women who have attained menopause or suffer from amenorrhea the period of iddah is three months, and in the case of pregnant women it is till the termination of pregnancy.

And if the parties are unable to unite during iddah as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddah. 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 iddah has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced. It says, “When you divorce women and they complete their term (iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms”. In other words, after the expiry of iddah, as per verses 2:231 & 232, the parties are given the options of remarriage and permanent separation- the separation being the third and the final irrevocable talaq to be pronounced in the presence of two witnesses.

Thus, it can be summarised from the above discussion that after four serious attempts at reconciliation a Muslim husband is permitted to divorce his wife once or twice within the period of iddah to resume conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddah he can either re-contract the marriage on fresh and mutually agreeable terms or irrevocably divorce her by pronouncing the third and the final talaq. It is understood here that the woman cannot be left hanging without either being united with her husband or irrevocably divorced. The parties have to decide one way or the other within a reasonable period of time. This is clearly implied in the verse 2:231 which says “but do not take them back to hurt them or to take undue advantage. If anyone does this he wrongs himself.”

However, to emphasise the sanctity of the marriage tie and the enormity of breaking it for frivolous reasons, the Quran warns that once the parties choose to separate after the expiry of the iddah, they cannot entertain hopes of marrying again unless the wife takes another husband and he divorces her. It is understood here that a divorce may result only if the new husband has serious differences with his wife, and in the rare event of such differences cropping up, he is required to follow the Quranic procedure of divorce as discussed above.

Divorce as practiced in India

Despite the clarity of the Quran on the issue the concept of divorce has been completely misunderstood. As per the prevailing understanding of “shariah” in India, talaq is broadly categorised into talaq al sunnah and talaq al bid’ah. The first form refers to divorce pronounced in accordance with the Quranic procedure as explained by the Prophet, and the second one alludes to a sinful innovation (bid’ah) supposedly justified by the Caliph Umar. In this type of divorce the husband is authorised to repudiate his marriage by saying the word talaq thrice in quick succession in the presence of his wife who then ceases to be his spouse with immediate effect. The Caliph is said to have legalised this innovation to discourage Muslims of his time from resorting to it.

This account may not be authentic for two reasons. First, a hadith in the collection of Abu Dawud states that Caliph Umar himself punished people who uttered three divorces in one go. Second, why would the Caliph legalise the very misogynist practice he was trying to abolish? It would have made sense to issue a decree to the contrary, delegitimising the annulment of marriage on the pronouncement of three divorces in one sitting. What is even more astonishing is, Hanafi jurists consider talaq al bid’ah a grave sin and yet legalise it as the AIMPLB has just done. No theological (or logical) explanation is offered to rationalise this indefensible position.

The legality of instant triple talaq has also led to the abominable circumvention of the Quranic injunction discussed above to overcome its impracticality. To help the victims of this law a pliable person is set up who marries the divorced wife, consummates the marriage overnight and divorces her the next day so that the original husband can remarry her in accordance with 2:230. This outrageousness which an innocent woman is subjected to for the ruthlessness of an un-Islamic and inhuman law is known as halala. Although many ulema have outlawed this disgraceful practice, it still prevails clandestinely in some Muslim societies.

The invalidity of triple talaq is also established from a Prophetic hadees. When informed about a man who gave three divorces at a time the Prophet was so enraged that he said, “Are you playing with the Book of Allah who is Great and Glorious while I am still amongst you?” (Mishkat-ul-Masabih). The reference to the “Book of Allah” in this report is a clear admonition to Muslims not to deviate from the gender-just, egalitarian philosophy of the Quran.

Reforms in Muslim countries

The good news is that several Muslim countries have reformed their laws in an attempt to bring them in conformity with the Quran and authentic teachings of the Prophet. The Moroccan Family Code (Moudawana) of 2004, for instance, puts the husband and wife on an equal footing and states that neither of them, especially the husband, can pronounce divorce unilaterally except under judicial supervision. This, the Code explains, is to control and restrict the abusive arbitrary practices of the husband in exercising repudiation. The Code also contains mechanisms for reconciliation and mediation both through the family and the judge. Additionally, it invalidates irregular pronouncements of divorce by the husband and stipulates that divorce cannot be registered until all vested rights owed to the wife and children have been paid in full by the husband.

Nearer home, Pakistan enacted a similar legislation as far back as 1961 entitled The Muslim Family Laws Ordinance. According to this law any man who wishes to divorce his wife shall, after the pronouncement of talaq in any form whatsoever, give the Chairman of the state appointed Union Council notice in writing of his having done so, with a copy to the wife. Within thirty days of the receipt of notice the Chairman shall constitute an Arbitration Council consisting of himself and a representative of each of the parties for the purpose of bringing about reconciliation between the parties. Contravention of this procedure is punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to 5000 or both.

Even Algeria, Indonesia, Iran and Tunisia have de-recognised a husband’s right to unilateral divorce by legislating that all divorces must go through a court. It is time AIMPLB too recognised the fact that a Muslim husband is not entitled to pronounce even one talaq without having first exhausted the four reconciliation attempts. The board must immediately outlaw instant triple talaq and delegitimise unilateral divorce proceedings without the intervention of a judicial authority to safeguard the rights of both parties.

The writer is an independent researcher and the founder Secretary-General of Islamic Forum for the Promotion of Moderate Thought.