June 10, 2016

India: Why is unilateral talaq still valid? (Syed Mohammed)

The Times of India

Why is unilateral talaq still valid?
Syed Mohammed | TNN | June 9, 2016

HYDERABAD: The movement against oral triple talaq appears to be gaining momentum with each passing day and has now reached the city. Activists associated with the Bharatiya Muslim Mahila Andolan , a key player at the forefront of the struggle to "legally abolish" the unilateral method of divorce, in the city, recently submitted a petition to the State Women's Commission which in turn will forward it to the National Commission for Women.

The move is part of a larger signature campaign which has 50,000 people, including men, signing the petition. But while many other Muslim countries have either banned or penalised oral triple talaq, why does the Indian Muslim clergy either condone or vociferously argue that it finds religious sanction? The answer could lie in the Islamic school of thought that a vast number of Indian Muslims adhere to. A majority of the Muslims, including the Sufis, in the country adhere to the Islamic school of jurisprudence founded by Imam Abu Hanifa, a much revered eighth century Islamic jurist.

According to several Muslim scholars, the practice of oral triple talaq finds permissibility in this school of thought. It comes across as no surprise that the All India Muslim Personal Law Board (AIMPLB), a body of powerful clergymen, continues to support the unilateral practice, the misuse of which over the years has claimed the peace of mind of thousands of Muslim women.

The matter has become so sensitive for several Muslim organisations that they either toe the line of the board or face marginalisation by their peers. From the corner of others, like the Jamaat-e-Islami Hind, which is known to take up social issues, there has largely been silence. While oral triple talaq finds no mention in the Quran, the major disagreement between those against the practice and large sections batting for it, including the local qazis, is rooted in the hadith (tradition) of Prophet Muhammad and the practice of Omar ibn al Khattab, his companion and one of the four Caliphs of Islam. Scholars say that a hadith narrated by Ibn Abbas, the Prophet's companion, and recorded in Sahih al Bukhari notes that the Prophet was in a state of anger when he was informed of a unilateral divorce and implied that it was not valid. However, jurists from the Hanafi school of thought have raised concerns and contest the latter half of this narration, scholars explained.

But while the Hanafis largely consider oral triple talaq as valid, interestingly, it is the Salafis, who do not. For them, pronouncement of "talaq" thrice in a single sitting will be considered as only one. But while the stand of the Salafis is known, they have kept a safe distance from the debate and the movement.

Scholars who do not consider oral triple talaq as valid rely on a fatwa of Ibn Taimiyyah, a 13th century widely quoted scholar of Islam. Others quote the narration of Abdullah ibn Abbas , a companion of the Prophet, and a few others cite the opinion of Saeed Ahmed Akbarabadi, who was a scholar of theology at the Aligarh Muslim University , who too did not consider unilateral divorce as valid. They also are of the opinion that the legalisation of oral triple talaq Omar ibn al Khattab had legalised was contextual.

The ulama (clergy) must realise that times have changed. Muslim women are becoming increasingly conscious of their rights. They are also aware of the misuse of religious injunctions. In this scenario, the Indian clergy in general can no longer ignore those who have been severely affected by the misuse of oral triple talaq. But now the AIMPLB has impleaded in the case which the apex court recently took up suo motu to look into discrimination Muslim women face on account of unilateral divorce. It appears, that after all, it will be the courts that will decide.