Social Issues

Contested practice

Print edition : June 24, 2016

A group of Muslim women protesting against triple talaq, in Mumbai. Photo: Paul Noronha

Triple talaq in one sitting as irrevocable divorce had its origin in special circumstances. It is outlawed in many Muslim countries, and the Muslim community in India is divided over the validity of the practice in contemporary society.

SAIRA BANU, a postgraduate in sociology who was caught in an abusive marriage, recently petitioned the Supreme Court to declare triple talaq illegal. Saira Banu was a victim of the much-dreaded practice under which hot-headed and often violent and whimsical husbands pronounce the dreaded word talaq three times at one go to divorce their wives. Saira Banu had been living separately from her husband for about a year, and her husband decided to end the marriage by writing the word thrice. Rather than approaching the courts to get adequate compensation, Saira Banu questioned the very validity of triple talaq.

Saira Banu’s case reminded many of the famous Shah Bano case, which hit the national headlines in 1985. But, much before Shah Bano’s case, there was another potentially explosive case of triple talaq in Delhi. But a local mufti who used to teach youngsters at the Fatehpuri Masjid, following the famed Hanbali scholar Ibn Taimiyah (1268-1328), sorted out the matter amicably. In that case, the husband, in a fit of rage, pronounced talaq, talaq, talaq to his wife. No witnesses or other adults were present. The next day, the husband came to his senses and realised the gravity of his action. He wanted reconciliation with his wife, who too was willing to forgive and forget. The case was brought to a couple of local maulanas of Old Delhi, who refused to consider triple talaq pronounced at a single sitting as anything but an irrevocable divorce. Calling it Talaq-e-Bidat, they admonished the man, even sympathised with him, but expressed their helplessness to consider it a single or revocable divorce. They took recourse to Imam Hanafi’s ruling on the subject. Incidentally, Talaq-e-Bidat, or Bidah, means innovated (or sinful) form of divorce. The Hanafis believe that though this form of divorce is sinful and innovative, it is nevertheless valid. Followers of Imam Malik and Shafi'i agree with the Hanafi stance.

The aggrieved man came to the mufti who, following the commentary of Ibn Taimiyah, ruled that pronouncing triple talaq at one go was as good as a single divorce; that is, it was a revocable divorce. The husband could annul it and resume cohabitation with his wife. Admonishing the man for his foul temper and warning him of the consequences of talaq, he brought about rapprochement between the couple, much to the relief of the man and his wife.

The ruling was derived from an interpretation of the Quranic verses wherein a man is allowed to divorce his wife but advised to maintain a gap of one menstrual cycle between each pronouncement. The divorce can only be proclaimed during tuhr, or menses-free period. The pronouncement is followed by iddat, or a waiting period. During this period, the husband and wife can explore possibilities of reconciliation, especially because the man is instructed to keep her with him and look after her the way he used to in the past. The sequence is repeated if he divorces her again after the second menstrual cycle. It is only when the man divorces the woman for the third time, at the end of the third menstrual cycle, that irrevocable divorce takes place. Then they are no longer considered man and wife, and the woman is free to choose a fresh marital partner at the completion of her iddat or pregnancy, whichever is later. So, there is a meticulous procedure that has to be clearly followed, giving the affected parties ample chance at each stage to introspect, reflect and iron out their differences.

This opportunity for reconciliation is not lost on our judicial system. It is the spirit of this advice of Surah Talaq of the Quran which was respected by the courts a couple of times in the past when it was decided that triple talaq pronounced at one go without an intervening period to explore possibilities of reconciliation is only as good as single divorce. In 2008, in Masroor Ahmad vs state, the Delhi High Court judge Badar Durrez Ahmad ruled that triple talaq should be deemed as a single revocable talaq. His ruling was on the same lines as that of Jiauddin Ahmed vs Anwara Begum (1981), where the Gauhati High Court said that a talaq must be “for a reasonable cause” and must be preceded by attempts at reconciliation. In both cases, it was understood that triple talaq at one go deprived the parties of a second chance at the marriage.

The rulings of the Delhi and Gauhati High Courts were in consonance with the law in many Muslim countries, including Pakistan and Bangladesh, where triple talaq at one sitting is deemed illegal at least on paper, though many argue that the ground reality is often very different. It is also illegal in largely Muslim countries such as Iraq, Egypt, Morocco, Sudan, Jordan, Syria, Yemen and the United Arab Emirates. In India, Muslim clerics, mostly Sunni, feel that triple talaq is “abhorrent, sinful but legal”.

Their stance, which affects the lives of millions of women, is based not on the direct teachings of the Quran but on an incident from Islamic history. In the seventh century, the second caliph, Umar, is reported to have sanctioned triple talaq under special circumstances. This way of ending a marriage was deemed appropriate then to protect women caught in violent or abusive marriages, where they faced danger to life and limb. Umar pronounced triple talaq as an irrevocable divorce to enable women to walk out of bad marriages quickly, without giving their husbands a chance to twist the teachings of the holy book to keep the woman at his home after a single revocable divorce. Many men then used to keep their wives after a single revocable divorce to torment them. The caliph’s ruling was for exceptional circumstances.

Today, the same ruling seems to take precedence over the word of the holy book in the eyes of many. Within the Muslim community, the All India Muslim Personal Law Board (AIMPLB) seems unwilling to take that ruling in the true spirit and suggests that the government and the judiciary need not interfere in matters of religious reforms. Navaid Hamid, president, the All India Muslim Majlis-e-Mushawarat (AIMMM), an umbrella body of 12 Muslim organisations, including the AIMPLB, points out: “The ruling of Caliph Umar is often quoted. The letter is followed, not the spirit. If you have to follow the ruling, follow it in full, not according to your convenience.” Hamid believes that the countries that have outlawed triple talaq are ascribed to the Wahabi school of thought but insists that women’s rights must not be impinged upon, and “all safeguards provided for their safety and security by the Quran must be respected”.

Differing opinions

Zafar-ul-Islam Khan, the founder of the AIMMM, is more direct in condemning the practice. “Triple talaq in one sitting should be punishable with lashes. It is wrong. The Quran specifies a procedure of divorce.” It is a sentiment shared by an official of the AIMPLB who wishes to remain anonymous. Having been a part of the delegation that met Prime Minister Narendra Modi to discuss the problems faced by the community, he believes triple talaq should be outlawed and claims that he is trying to form a majority opinion within the Board against the abhorrent practice. His, however, is clearly not the voice of the Board. His colleague, S.Q.R. Ilyasi, earlier pointed out that one member’s views need not necessarily be that of the Board. “The Board is not a homogeneous body. He is entitled to his opinion. But we must remember that the Board has representatives of different schools of Islamic jurisprudence. For instance, the Ahl-e-Hadith people regard triple talaq in one sitting as only a single divorce. They believe that a period of one month has to lapse between each pronouncement of divorce. We, however, cannot make it punishable as we are not living in an Islamic country,” he said.

On the other hand, the Darul Uloom Deoband contradicts the Ahl-e-Hadith position, decreeing that triple talaq, if pronounced even in a single sitting, is as good as a irrevocable divorce. Interestingly, the Deoband seminary was in the news in 2012 for its ruling on the subject saying that talaq given in a state of drunkenness was valid, and a fatwa was issued by Darul Ifta (Fatwa department) of the seminary to that effect. In that case, a man divorced his wife over the mobile phone and later regretted his action. Although many academics, such as the well-known legal expert Dr Tahir Mahmood, opposed the instant talaq ruling, the Deoband school’s position did find takers. Among them was an expert from the rival Barelvi school, who joined forces on the issue. The president of the Ittehad-i-Millat Council, Maulana Tauqeer Raza Khan, defended the fatwa, arguing that drunken or otherwise, the Shariah rule was equally applicable to all Muslims.

Dr Mahmood, on the other hand, called for the abolition of triple talaq, citing the examples of various Muslim countries which had outlawed the practice. Shaista Ambar of the All India Muslim Women’s Personal Board spoke out against instant divorce, scoffing at the ruling making a divorce valid even if it was pronounced in a drunken stupor.

However, it is not a position favoured by most clerics, who believe that a personal issue is being politicised to gain brownie points in the larger society and polity. An imam from Lucknow argued: “We do not rake up the matter of girls being married to idols, but fingers are often pointed at us for anything relating to women. We believe that the matter has to be resolved by the ulema and the Muslim Personal Law Board. The ruling of any Jamaat is not important, but an attempt to build a consensus on the issue has to be made.”

Arguing that someone like Dr Mahmood, a legal expert, is not necessarily the last word on Shariah, they urge the state to stay away from making a call on such a sensitive matter. “It is a matter the community is seized of. Let’s not force anything down a community’s throat. The ulema shall take a call,” said Navaid Hamid.

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