Print edition : November 11, 2016
An interview with Prof. Tahir Mahmood, former NCM chief.

A LITTLE under 20 years ago, Prof. Tahir Mahmood transformed the otherwise dormant National Commission for Minorities (NCM) into a place buzzing with activity. The NCM sent out teams when untoward incidents happened in States such as Haryana, Odisha and Madhya Pradesh. As the Chairman of the NCM, he played a major role in minority affairs. Not only did he speak up for religious minorities, he surprised many observers by talking of minority status for Pandits in Jammu and Kashmir.

A widely known critic of Muslim orthodoxy, Mahmood has an independent approach to matters of religion. For instance, his perception of halala is different from the usual interpretation of it offered by Islamic clerics. It is the same approach that comes to the fore when he denounces the practice of triple talaq, or instant, irrevocable divorce, as a biddat, or innovation. At a time when the Muslim clergy has gone into an overdrive on the subject, Mahmood bases his argument on his understanding of the Quran and authentic hadith. Mahmood has been a member of the Law Commission. Two of his books, Muslim Law in India and Abroad and Amid Gods and Lords, have hit the stands with new editions this year.

Excerpts from the interview he gave Frontline:

How central is the concept of triple talaq in the life of the average Indian Muslim?

The average Indian Muslim thinks that this is the procedure. He does not know any other procedure. He thinks that talaq takes place if the word is repeated thrice at one go. It is a gross misrepresentation of facts. So much misconception is there on the subject that a High Court judge dismissed a case, saying the word was not spoken thrice.

The common man does not know that the first and second instances of talaq are revocable. The talaq can be revoked within three months of the pronouncement by the husband. If the husband does not revoke it and the cooling-off period of three months is over, direct remarriage is possible after the first instance of divorce. Just cohabitation is sufficient. Talaq can be revoked by conduct or word. It is allowed unconditionally. In case of the second pronouncement of divorce, if the husband revokes it, well and good. The procedure is the same for the second time. I repeat, first and second time divorce are revocable. However, if the husband ever in his life divorces his wife for the third time, it is irrevocable. This law was circumvented during the Prophet’s time. Once, two persons wanted to finish their marriage as early as possible. And they uttered the word talaq thrice. The Prophet was infuriated. It is an authentic tradition, recorded in six books of hadiths. His words were, “I am still alive and you people are so mocking the Quranic law?” He annulled triple talaq. He considered it single divorce. The marriage continued.

Is that when the process of “halala” comes into play, after the third pronouncement of talaq and the following “iddat” period?

There is an entirely different provision. It is applicable if a woman who has been third time divorced by her husband marries somebody else of her own volition. And unfortunately, after whatever time, if the second husband dies or he divorces her, she becomes a single woman, and is not the divorced wife or widow of her first husband. She does iddat for her second husband, after which, if she wants to have a third marriage, and her first husband is willing, she can go ahead. The way halala is perceived is much more than mockery, it is caricature of the worst form. It has been devised for remarriage between a man and a woman after divorce. In the mind of the average Indian, there is so much misconception.

How did the concept of triple talaq take root?

Triple talaq was legalised during Caliph Umar’s time. The caliph, however, had passed no orders that triple talaq was valid. There were two or three cases where the husband had pronounced the word thrice. They thought that the marriage had dissolved and approached the caliph. He was consulted. He told them that it was absolutely wrong and they had violated the law. He inflicted the punishment of flogging on the men. He asked the women if they wanted to continue in marriage, and the wives said no. Then talaq was solemnised. If the husband gives three divorces at one go and the wife does not want the marriage to dissolve, then the marriage continues. There are many cases in which the husband says talaq in anger or in a state of inebriation. He repents soon after, the wife also does not want to go out of marriage but the mullahs say the only way out is halala. It is rubbish. A 75-year-old woman in Old Delhi was told by a mufti to perform halala before going back to her husband. It is rubbish. Triple talaq has no sanction in true Islamic law, no existence in Quranic law.

The word triple has not been used anywhere in the Quran. It is all concoction, it is biddat. Even the maulvis agree it is innovation, it is haraam. They say it is bad in theology but good in law. It is ridiculous.

Muslim religious leaders are a bit sensitive, arguing that talaq stems from the Quran. They also quote Article 25 of the Constitution to safeguard their right to religion. How does one come to a logical conclusion?

I doubt if the mullahs have ever read Article 25 of the Constitution. Definitely, they have not read it in English, but there are Hindi and Urdu translations available. Article 25 speaks of religious freedom. It begins with the words, “Subject to morality, health and public order, and all other fundamental rights, people shall have freedom of religion.” Conditions come first; parameters come first, permission comes later.

The Article does not say that everybody will have unrestricted freedom of religion or what he believes to be freedom. It begins with, “Subject to.…” Other provisions mean right to equality, equality before law, gender justice, etc. It is subservient to other articles within this part. If there is a conflict, other provisions prevail.

Then there is Clause 2. Nothing in this Article will prevent the state from making laws for social welfare and reform. There is Clause 3. Any activity, financial, social, political or any other secular activity traditionally associated with religion, will be outside the scope of this Article. After that who will tell us about the scope of the Article? The Supreme Court, not the maulvis or mullahs. The Supreme Court has in so many cases decided that this Article only protects the essential practices of religion. Is polygamy an essential part? Is talaq so? Look at the beauty of our religion: it is so rational, it makes a difference between ibadat [right to worship] and muamala [other affairs]. There is no conflict between the Constitution and the Quran on this issue.

Triple talaq has been abolished in so many Muslim countries. Why do we cling to it?

In some Arab countries, it is abolished. It is written that talaq coupled with figures will be considered single divorce. With a slight difference, you will find this Article in modern statutes of 12 or 13 countries, including Iraq, Jordan, Egypt, Syria. Talaq coupled with a number is revocable. It effects only once.

Pakistan and Bangladesh also talk of three months’ cooling-off period after each divorce. So indirectly, it is considered against triple talaq. During these three months, the government agency tries to reconcile the parties. Indirectly, triple talaq is considered a single divorce.

Do you think there is a degree of politics in that or some persecution complex, particularly because it comes from the Narendra Modi government?

There are judicial decisions. There is a Delhi High Court judgment [2008] in the Masood Ahmed case by Justice Badder Durrez Ahmed, President Fakhruddin Ali Ahmed’s son, which clearly states that three divorces at one go is single talaq only. He is certainly not a Vishwa Hindu Parishad man.

Before that, in 2003, in the Shamim Ara case, the Supreme Court said there was a procedure for divorce laid down in the Quran, and unless the husband proved to the satisfaction of the court that he had followed the procedure, the divorce would be ineffective. The man has to prove to the satisfaction of the court as per the Indian Evidence Act. Islamic law of evidence is not applicable. There has to be oral, documentary, circumstantial evidence. The judicial verdict here means that triple talaq is not instant irrevocable divorce. It is a single divorce. This is the law in India, too. What more do you want? It has already been settled. But who bothers about a Supreme Court judgment? In 1995, the Supreme Court said a Hindu married man cannot convert to Islam for the purpose of marriage. But Chand Mohammed or Chander Mohan, the Deputy Chief Minister of Haryana, went ahead and did it. He and his wife, Fiza [Anuradha Bali], were both lawyers.

How come women have not been made aware of “khula”, their right to divorce?

Well, non- maulvis have tried to do their best. Maulvis think khula depends on the consent of the man, which is not correct. No less a luminary than [the Islamic scholar] Maulana Maudoodi has written that khula is the counterpart to a man’s right to divorce. Here, the decisive voice is that of the woman. The only thing is that she might have to forgo her mehr in case the man is shameless enough to demand it. Or, if he has not paid it earlier, he does not have to do it. The husband or the qazi cannot decide whether khula took place.

Once there was a case before the Prophet. He suggested to the lady to reconsider. She asked him if it was an instruction or merely a suggestion. When he said it was a suggestion, the lady declined and she got her freedom. In khula cases, the qazi cannot play a role, he only has to solemnise. It is instant, irrevocable divorce. There is a philosophy behind it. When the husband divorces, there is scope for conciliation. He can annul the divorce without physical contact, as he is physically stronger. When khula takes place, the law takes away the husband’s chance to exercise his physical prowess to force himself on her. That is why it is instant divorce. It dissolves the marriage, leaves no room for the man to tinker with it. The day the wife decides in favour of khula, the husband cannot stop it, and the qazi can only dissolve it through a decree.

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