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Posted at: Oct 24, 2016, 12:47 AM; last updated: Oct 24, 2016, 12:47 AM (IST)

Why Muslim board is wrong

Aftab Alam
Its stand on talaq is regressive and ignores family law reforms in many countries
Why Muslim board is wrong
One for the woman: Quranic injunctions on divorce are interpreted incorrectly.
THE public interest litigation  petition filed by a Muslim woman from Uttarakhand, Shayara Bano, before the Supreme Court, seeking the abolition of triple talaq, has brought the spotlight back on the Muslim Personal Law once again — after 30 years since the Shah Bano controversy. The political scenario is, however, different this time. While the All India Muslim Personal Law Board (AIMPLB) yet again is seeking to defend triple talaq, the Union Government, led by the BJP, has taken a diametrically opposite view, asserting that triple talaq not only violates the fundamental rights as enshrined in the Constitution, but also did not form part of the “essential religious practices” in Islam. The AIMPLB has also decided to boycott the Law Commission’s questionnaire on a uniform civil code.

 Amidst the controversy, it is worth looking at the Quranic injunctions on divorce as they have not only been misunderstood by common Muslims, but also have been wrongly portrayed by even many Muslim clerics. At the outset, Islam does not encourage divorces and permits only in exceptional circumstances and it must be resorted to only when there is no alternative, and that to, in the most amicable manner. The question of triple talaq nonetheless assumes significance in the face of reports of its frequent misuse by Muslim men who are even using Facebook, Skype, Twitter and text messages for divorcing their spouses in utter disregard to the principles and procedures laid down in the Quran and Hadith (tradition of the Prophet).

 The Quran is very unambiguous on the matter of divorce. In verse 4:35, it has been clearly stipulated that in the event of marital discord, before a divorce, arbitrators should be appointed, representing one from each side, for reconciliation. It is only after the failure of the reconciliatory efforts, the Quran — in verses 2:226-227 — permits the pronouncement of the first talaq. Thereafter there is provision for a waiting period (normally three to four month) called iddat  before the second talaq is pronounced and they can still reunite before teh third and final talaq is pronounced. Thereafter the marital bond is finally severed (verse 2.229). Thus the Quran lays down a clear and detailed procedure for divorce to ensure that it should take place only after careful consideration and not just a rash step taken in a fit of emotion. It also stipulates the stages of negotiation, conciliation and arbitration before reaching a final decision. 

According to a Hadith narrated by Ibn Abbas found in Sahih Muslim, Rukanah ibn Abu Yazid had pronounced divorce to his wife three times on a single occasion, but later he felt very sorry and went to the Prophet (pbuh) for his advice. The Prophet asked him how he had divorced his wife. He replied that he had pronounced three divorces. The Prophet again asked, did you pronounce it in one sitting? He said yes. The Prophet then observed, “All three count as only one and if you want you may revoke it.” In yet another Hadith reported in Mishkat-ul-Masabih, when the Prohpet was informed about a man who had pronounced talaq thrice, at a time, he 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?” 

Thus there is no sanction for the triple talaq either in the Quran or Hadith. In the Prophet’s lifetime and under the first Caliph, Abu Bakr, and during the early period of the second Caliph, Umar ibn al-Khattab, utterances of talaq thrice in one sitting was used to be considered as only one. It was only in the later part of the Umar’s caliphate that the triple divorce was allowed as lawful.

The decision of Caliph Umar to legalise triple divorce was purely temporary and taken in a particular context to discourage talaq in haste but his order no way changed the original position of the Shariah on divorce as prescribed in the Quran and the Sunnah. It was also never meant to be a permanent law to be followed for all times to come.

It is true that major schools of Islamic jurisprudence also subscribe to the Umar’s verdict on triple talaq. In their opinion, whether a divorce is pronounced thrice in one sitting or after a waiting period, in any case it does become effective, although the pronouncer commits an act of sin. The Hanfi School of jurisprudence, followed by a vast majority of the Muslims in the subcontinent, while it considers triple talaq as sinful and innovative, nevertheless it legalises it.

But there are many eminent Islamic jurists who differ with all four Imams on the question of triple divorce. Sa’i bin al-Musayyab, for instance, holds another extreme position and says that the divorce of the person who pronounces it thrice at one time does not take place at all. In the opinion of Ta’us and ‘Ikrimah, if divorce is pronounced thrice at once it would amount to one divorce only. And according to Imam Taymiyyah, even if someone pronounces the word talaq thrice in one session it would be treated as one only. Many eminent jurists like Muhammad Muqatil, Hafiz Ibn Hajar, Sheikh Shaltut, Allama Rashid Rida and Shaikh Jamal al-Din al-Qasim have also held a similar view.

The AIMPLB should understand that its stand on triple talaq is not only regressive, but also completely ignores the family law reforms initiated in many Muslim countries such as Pakistan, Bangladesh, Turkey, Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia and Indonesia to bring them in conformity with the Quran and Sunnah and to suit the present-day conditions. Most of them have abolished triple talaq. It should also realise that there is ample scope of regulating talaq under Shariah and the prohibition on triple talaq, which is considered sinful act even by those who approve it, does not undermine the spirit of Islamic law on divorce. If the AIMPLB still insists on triple talaq, nothing explains its stance better than what was said half a century ago by noted jurist Syed Amir Ali in his book The Spirit of Islam: “The Prophet inculcated the use of reason; his followers have made its exercise a sin.”

The writer is a Professor of political science at Aligarh Muslim University

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