Demystifying talaq

Print edition :

Farahnaaz, who married Yawar in 2012, shows a video clip of her husband pronouncing triple talaq, which she received over WhatsApp in November 2017, at a press conference in Mumbai on April 28. Photo: Vivek Bendre

A conscientious explanation of the puzzling issue of instantaneous talaq.

DO Muslims who look up each practice of the Prophet Mohammad with reverent awe, yield to an act never performed by him? The answer is a definite “yes” as the prophet never divorced. Does Islam discuss women beyond the terms of mother, sister, companion, object of entertainment and a centre of attraction and fidelity by rejecting the Semitic belief that described woman as an inferior empty-headed moron? Does the matrimonial code of Islam put a premium on fair treatment of wife? These two questions again fetch a “yes”.

Do triple talaq, halala and muta constitute the fate of Muslim women who are left unsheltered and uncared for? Does Islam provide Muslim men with a lethal weapon—divorce by way of pronouncing the dreaded word “talaq”? Here, “no” is the right answer. Is the right to divorce available to women in Islam? “Yes”. These pertinent and incisive questions and the answers hardly figure in the intense, cacophonous and polemical debate on talaq, but they are brilliantly articulated by Ziya Us Salam, a literary critic, a votary of interfaith dialogue and an eminent journalist, in his recently published book Till Talaq Do Us Part.

The book, divided into 16 laconic chapters, betrays a strong sense of academic rigour. It goes beyond perceptive sifting and interpretation of the Quranic verses or dealing explicitly with talaq and the practice and sayings of the Prophet. Further, frequent references to the important texts of Islamic jurisprudence provide insights into talaq—a socio-religious practice that has left demagogues and the media in confusion. Ziya’s slim volume brilliantly produces an unostentatious narrative on instant divorce, or triple talaq.

Notwithstanding the Prophet’s intention to elevate the status of motherhood and wifehood and launch an intense movement against gender inequality, enslavement and exploitation, Islam continues to be pilloried for validating divorce and polygamy. Disagreeing with the basic argument vigorously pursued by the protagonists of talaq that forbidding divorce brings a type of concubinage, the author uses an array of documentary evidence to reinforce the sacred nature of marriage stipulated by Islam and asserts:

“Islam allows a man to divorce his wife, but there is a process for it. It is not like two minute noodles or switching off the ignition of your car. It allows a woman, too, to dissolve her marriage. It gives both men and women the right to step out of wedlock through mutual consent” (page XXIV).

Islam does allow divorce; it is a right through which one can conquer the sense of guilt. It is widely believed that conjugal rights are definitely tilted towards men as women have virtually no say in the parting of ways although their consent is essential for marriage.

Debate on khula

Ziya has set in motion a debate, amazingly shorn of institutional religiosity, on a woman’s right to divorce, called khula, and it has the potential to trigger a new awakening about Islam’s commitment to gender justice. Contrary to popular perception, women, too, are provided with an inalienable right to divorce— “khula”, which one hardly hears of. A lot of fog has been allowed to gather around a woman’s right to dissolve her marriage. The author tries to wipe out the miasma of confusion, and says:

“Under khula, a woman has a right similar to that of a man to dissolve the marriage. What’s more important is that she has to specify no grounds for effecting the divorce. She has to furnish no proof of harassment or ill-treatment. Something as simple as a dislike for husband’s looks can be seen enough for khula to take place” (page 72).

By way of attestation, Ziya cites a matter-of-fact account of an incident that happened before the Prophet: “There is a well-known incident, from the Prophet’s time, about a woman called Jameela, the wife of Sabit bin Quais. She hated her husband because of how he looked. He was, however, pretty fond of her. ‘If I had no fear of God, I should have struck him on the face whenever he approached me,’ the woman told the Prophet. Thereupon, the Prophet asked the husband to take back the garden he was offered and divorce Jameela.”

Elusive justice

Undoubtedly, this showcases the Prophet’s commitment to the right of a woman, but why did gender injustice take root in Islamic history? One can hardly see an attitude of considerateness towards women and it is not clear why women continue to be punished even for their unintended faults and foibles. The author seems to be tentative in responding to the pseudo-religious practices of the moulvi-oppressed society. Muslim scholars hardly refer to the provision of khula.

For a majority of them it is a mutual right, but Ziya repudiates the claim. If a woman seeks divorce and her husband disagrees, the Qazi can be approached, but even he cannot invalidate her decision. He can speak to the woman to know her intention, and if he finds her determined, he has to ask the husband to release the woman from wedlock. It looks incredible. The author does well to initiate a full-length and nuanced debate to this question spread over two chapters.

The sixth chapter is devoted to the topic and it mocks attempts to deny women this right. The moulvis take pride in fetishing this right, which has enduring relevance in the neoliberal age that firmly believes in gender justice.

The last chapter, “Instant Triple Talaq and Khula in Qazi Courts”, judiciously juxtaposes cultural and social phenomena with inherited religious beliefs. Khula-seekers generally undergo no anguish. Since uneducated Muslim women are not aware of the practice, they tend to retain the traits their husbands want them to cultivate. By invoking khula, women need not sacrifice their lives so that others may live peacefully.

Changing mindset of imams

Armed with empirical findings, the author gives a candid account of Darul Qazas belonging to different sects and operating in several cities of the country. His narrative highlights the changing mindset of some imams who are fully committed to sweeping aside all ill-conceived norms and rituals.

According to Ziya, Masjid Bhogarh in Amethi is one of the mosques that launched a campaign against the pronouncement of instant triple talaq. The author refers to a plethora of talaq and khula cases decided by sharia courts in Uttar Pardesh, Odisha, Bihar, Jharkhand, Rajasthan, West Bengal, and Mumbai and Delhi. Curiously, Patna’s Imarat Sharia reportedly decides many more cases of khula than triple talaq, and the cases of khula are decided without any glitch.

The dispassionate and well-documented discussion on khula will go a long way in delineating the role of Islam in mapping out the uncharted terrain of gender justice; it supplements what has not been adequately talked about. On the gender justice front, Islam is reprimanded with equal vehemence by liberals and right-wing demagogues, and Ziya’s take on khula will give them something to ponder over. These two chapters are replete with examples, and their subsequent interpretation will motivate and comfort all those who speak for women’s rights.

In Islam, sex is no bar to inheritance and it is central to initiating an informed debate on the social and cultural underpinnings of a society that produces a strange resistance to gender equity. Here, one wishes to see that the debate is placed in the absolutist premise of equal rights since many liberal thinkers see ancestral beliefs and social norms as hindrances to complete emancipation of women. But the author chooses not to castigate these tendencies, which have conspicuous religious sanction.

Notwithstanding the fact that the author zeroes in on religious injunction related to talaq by sifting through all relevant texts, it would have been in the fitness of things had he given a graphic account of the unique evolutionary trajectory of divorce as an acceptable socio-religious practice within the bounds of Islam without being feral or accusative.

A practice without religious sanction

The most creditable feature of the book is its insightful, informed, incisive and nuanced debate on halala and muta, the terms closely related to talaq. The author’s interpretation is laced with Quranic injunctions and the authentic sayings of the Prophet. Frequent wilful interpretation by self-opinionated moulvis turn these practices into barbaric norms. Halala simply means forcing an impulsive husband to let his wife sleep with another man if he wants to remarry her after divorcing her by resorting to triple talaq. He gives a specific instance involving Tehsin, who was divorced by her husband Waqar in a fit of anger. Ziya points out that the husband soon realised his mistake, and Tehsin, too, wanted to go back to him, but the local imam asked her to undergo halala, as it was the only possible remedy for both. The imam’s contention that “it is a way to punish the man for foul temper” did not convince her. She quips: “But this is the punishment for the woman as well,” and here the author concurs with her as halala as espoused by the clerics has no religious sanction. According to the author, it is a chance given to an irrevocably divorced couple to come back into matrimony. The author goes a step ahead and describes it as a concept that ensures a woman’s independence but not many find his assertion palatable. Halala is essentially a mock marriage, a despicable act. The author quotes an excerpt from the affidavit submitted by the All India Muslim Personal Law Board before the Supreme Court that mentions it as an execrable practice. It reads:

“Whereas in any case, the term Nikah Halala is not found even in the Hadith. The Hadiths of the Prophet Mohammad in condemning Halala are as follows: ‘Allah’s curse is on... the one who carries out Halala and the one who it is done for... and Allah has cursed the muhallil (one who marries a woman and divorces her so that she can go back to her first husband) and the muhallal lahu (first husband).’”

Ziya cogently argues that nikah with a pre-agreed date and time of divorce is not allowed in Islam, whereas muta, a short-term marriage, stipulates the time or duration of the matrimonial alliance, hence it is not in line with what Islam stands for. This chapter seems to be a voyage of discovery and it aptly derides the positions taken by a particular section. It produces a sort of unintended prejudice that leads to a myopic vision and it closely resembles what Amartya Sen calls “positional dependence of observation”.

Since much ink has been expended on the main theme of the stunningly designed book, the author remarkably avoids all the generic cliches and oft-repeated interpretation and fashions a narrative that draws heavily on historical evidence, empirical data and anecdotal accounts, and acquaints us with all nine forms of talaq backed by Quranic sanction with a marked sense of objectivity.

The eminent historian Professor Shirin Moosvi helped the author lend a historical perspective to the issue. Ziya perceptively discusses the nikahnamas of the Mughal period and asserts that triple talaq had no judicial or official sanction at that time. Quoting the historical records of Jahangir’s court, the author says: “On June 20, 1611, Jahangir ruled that divorce pronounced by a husband in the absence of the wife was null and void. Similarly, the Mughals proved to be quite visionary in protecting the right of women in other aspects of Islamic theology.”

The book has been produced in response to the Supreme Court’s verdict on instant talaq and the argument and counterarguments are gathered against the backdrop of the judgment.

Yet, the narrative is not ephemeral or event-specific, and the whole debate is narrated through a historical lens mixed with immaculate research. The author’s well-argued conclusion (pages 199-211), titled “The Way Forward”, is intellectually stimulating, and his painstaking effort to celebrate the flexibility and diversity of Islam assumes greater significance at a time when a sustained effort is being made to bring forth a discourse that celebrates strait-laced rigidity.

Shafey Kidwai, a well-known bilingual critic, is professor, Mass Communications, Aligarh Muslim University. He has published 10 books in English and Urdu. His latest book, Sir Syed—A Life in Education, is being published by Oxford University Press.