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Thursday, July 07, 2022

No country for triple talaq

The custom fails even on scriptural grounds. India must scrap the practice, as many Muslim nations have done

Written by Arif Mohammad Khan |
Updated: June 6, 2017 12:05:31 am
triple talaq, supreme court, muslim personal law, indian express editorial page, latest news, indian express (Illustration by C R Sasikumar)

In pre-Islamic Arabia, there were some tribes which used to bury their female infants soon after their birth. It was not as if every Arab tribe indulged in this heinous crime, but Islam made it a big issue. The Holy Prophet strongly condemned this practice. The Quran, on the one hand, highlighted the sanctity of life to eradicate this practice and, on the other hand, it aroused very strong pathos by saying: “When the female infant buried alive is questioned for what crime she was murdered” (81.8-9).

When this obnoxious practice, of burying infant girls, was banned, nobody tried to defend it by saying that it only very few tribes like the Banu Tamim indulge in this and hence, this should not be elevated to the status of an Arab problem. In fact, the viewpoint was that oppressing one individual is a human tragedy, and oppressing more than one is merely statistics.

The incidence of divorce among Muslims may be low, and triple divorce may be even lower, but can we deny the fact that the number of Muslim women who flock to the lower courts to seek a maintenance allowance after divorce is much higher than Hindu divorced women? The reason is obvious. In the case of Hindu women, there is no instant divorce. All financial claims are settled before a divorce is finalised. But in the case of a Muslim woman, her divorce becomes final within minutes — the only option available to her to secure her rights is judicial redressal.

Even more serious is the fact that a Muslim girl grows up with the awareness that if on any given day, her husband can due to anger or any other reason, turn her out of the marital home instantly, by repeating a simple word three times. Imagine the negative impact this awareness has on her overall development and psyche.

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The Hadith books tell us on the authority of Ibn Abbas that the (pronouncement) of three divorces during the lifetime of the Holy Prophet, and that of Abu Bakr and two years of the caliphate of Umar, was treated as one. But when people started to use the instant divorce freely, then Caliph Umar said: “Verily the people have begun to hasten in the matter in which they are required to observe respite. So impose this upon them, and he imposed it upon them.”

Shah Waliullah, a leading scholar of the 18th century, explains the situation in his book Fiqh E Umar. He says that men had made it a habit to divorce women and then take them back during the waiting period. Then, it was said that if men pronounce three divorces, we shall count them as three and order the separation of husband and wife.

To say that there is some hadith which legitimises this sinful practice is in itself a sin. We must understand that in Arabic usage, the bidat (wrongful innovation in religion) is a term that is an antonym of sunnat (the prophetic tradition). Every book on Islamic law, including the Compendium of Islamic Laws published by the All India Muslim Personal Law Board describes triple divorce as bidat — sinful, prohibited and irregular.

In the latest affidavit filed by the Muslim Personal Law Board, they have added one more epithet: That it is “unjust”. After using all these adjectives, it is an act of misplaced bravery to claim that the Holy Prophet would have legalised something that was both sinful and unjust.

The Quran, like any other scripture, is a book of wisdom and explains things in parables and signs. Possibly the only exception it makes is with regard to marriage and divorce — the Quran lays down an elaborate procedure and leaves nothing to speculation. The procedure it provides says that if you apprehend separation, counsel the wife; if that fails, sleep on separate beds. Finally, give examples of divorced couples to explain the adverse impact this has on families and children. If that doesn’t work, then the Quran provides for arbitration through two persons, one each from the families of the husband and the wife (4.34-35).

It is only after the failure of all these steps that the husband is permitted to pronounce a divorce and then, the Quran obliges the spouses to live during the waiting period of three months in the same manner as they were living before. During this period of iddat, the husband has the right to revoke the divorce and, after the completion of three months, if the woman agrees, they can remarry. Further, the Quran makes the presence of two witnesses compulsory at the time of the divorce and declares in clear terms that these are the limits set by God, implying that these limits cannot be altered by any human agency and this is the only way that divorce can be effected (65-1-2).

This explains why Imam Malik considers even Talaq Hasan (where three separate pronouncements are made at the beginning of every month) as bidat, because the Talaq Hasan again is not in conformity with the procedure laid down in the Quran. The Quran further clarifies that this option is available only twice during a lifetime, which means that any third pronouncement would lead to irrevocable separation (2.229).

Triple talaq is an enormity; it is a legacy of a pre-Islamic Arabia. In so far as it is arbitrary, it robs Muslim women of their fundamental rights. In so far as it is violative of the Quranic procedure, it is anti-Islam. In so far as it treats women as slaves who can be disposed of by the “master” at his sweet will, it is inhumane.

Therefore, this obnoxious practice must be put an end to, as has been done in almost every Muslim country. The Indian Muslim man is no special creature to continue to have this special right.

Khan is a former Union minister. He quit the Rajiv Gandhi government and the Congress over differences on the Muslim Personal Law Bill passed in Parliament, following the Supreme Court’s judgment in the Shah Bano divorce case

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