The case of Triple Talaq: A new thought
Does the practice of Triple Talaq (Talaq-ul-Biddat) conform to the Qur’an and Sunnah? If not, why the practice is still applicable in Muslim societies. The solution may negative the long run practice and must impinge on the principle of Ijma by which this inexcusable Talaq introduced in the Umayyad monarchs. It requires mentioning here that laws of Pakistan, bangladaesh and some other Muslim countries do not recognize it so far. Notwithstanding, those who abide by Shari’a Law strictly and believe in its consequential bar to conjugal rights are still practicing this. Sometimes Islamic jurists give fatwa in this regard and ensure the separation between couple. These cases are mostly seen in rural areas. As a result, women are deprived of and forced to leave her husband’ house, then they have to deal with uncertainty life. In many Muslim countries, -Muslim wife indeed has always lived under the ever present shadow of divorce’ (Anderson). In view of the above reason, though the law concerned enacted, public consciousness is necessary. -Unlike in Bangladesh, unilateral arbitrary divorce continues to be a valid form of divorce among Muslims in India. This has been the focus of media attention and intense discussion in the past few months in India. The backdrop for the discussion was an announcement by the self-appointed All India Muslim Personal Law Board that it would seek to abolish the practice, and its retraction within a week due to pressure from conservative and fundamentalist forces within the country. Responses by a Full Bench judgement of Bombay High Court in May 2002, in Dagdu Pathan vs Rahimbi: Here, the court held that a merely declaring his intentions or his acts of having pronounced the talaq, or a mere pronouncement of talaq by the husband are not sufficient and do not meet the requirements of law; in every such exercise of right to talaq the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq. In 1993, a Division Bench of Gauhati High Court held that a Muslim husband cannot divorce his wife at his whim or caprice and divorce must be for a reasonable cause and that it must be preceded by a pre-divorce conference to arrive at a settlement (Zeenat Fatema Rashid vs Md. Iqbal Anwar). However, the High Court of Orissa had held to the contrary. (Rashida Khanum & another vs S.K.Salim, 1995) The Supreme Court, through a judgement dated 1 Oct. 2002 in Shamim Ara vs State of U.P., stating that talaq must be for a reasonable cause, and that it must be proved. A summary of the principles laid down by the judiciary with regard to husband’s right to unilateral arbitrary divorce is to be directed.The Quranic mandate has now been upheld and elaborated upon by several courts, including the Supreme Court'. When they shall fill their demands up to be an integration of the most liberal interpretations of Qur’anic verses, we may have to see that then they are demanding a complete uniform code rejecting the total application of Muslim personal law as in Bangladesh as well as in India have been demanding for several decades now ! Let us discuss first the primary commentary on Divorce and then concentrate on subject matter. The Arabic for divorce is talaq, which means repudiation. The morphological root of the word implies releasing a wife or freeing her from the bondage of marriage[2 ] The Prophet showed his dislike to it. He is reported to have said that -with Allah, the most detestable of all things permitted is divorce'
In Hindu communities divorce was not allowed under any circumstances. However, after passing The Hindu Marriage Act 1955, it is now allowed. In English law it was not recognized even hundred years back.  Divorce mechanism was recognized in Islamic law since 1400 years back. The reforms of Prophet Muhammad (saw) marked a new departure in the history of the Eastern legislation.  Where the husband or wife possesses such a cruel nature that may endanger the life of the other or for gaining the lust of his or her whims, yet in similar cases, the necessity of divorce is inevitable. -Divorce, since it disintegrates the family unity, is of course, a social evil in itself, but it is a necessary evil. It is better to wreck the unity of the family than to wreck the future happiness of the parties by binding them to a companionship that has become odious’.
Considering the facts Islam permits the so called -hatred halal’ imposing restrictions like as reconciliation and counting Iddat. Notable, the Qur’an and Hadith prescribe the procedure of reconciliation and counting Iddat. However, according to Muslim law, divorce can be implemented in any of the following ways 7: (a) by Talaq-us-sunnat, that is , a talaq which carries the approval of the Prophet. It may be in the most approved form, i.e. ahsan and hasan. Ahsan- Hedaya brands it as the most laudable divorce, where the husband repudiates his wife by a single pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat. In case of a marriage not yet consummated, ahsan talaq may be pronounced during menstruation also. Where the wife and husband are living separate from each other, or where the wife is beyond the age of menstruation, the condition of tuhr is not applicable. Hasan- In talaq hasan, the husband successively pronounces divorce three times during consecutive periods of purity (tuhr). It is therefore -a divorce upon a divorce-, where the first and second pronouncements are revoked and followed by a third, only then talaq become irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the pronouncement has been made. Where the wife is not subject to menstrual courses, an interval of 30 days is required between each successive repudiation. (b) by Talaq-ul Biddat.- here the husband does not follow the approved form of talaq i. e., talaq-us sunnat, and neither pays the attention of the perods to the purity nor to the abstention from intercourse- Hedaya defines it as a divorce where the husband repudiate his wife by three divorces in one sentence, or where he repeats the sentence separately, thrice within tuhr. Where there have been three declarations, the remarriage of the couple is only possible if second marriage takes place. Such intervening marriage must be actually consummated and pronounced divorce by second husband. In Ahmed Vs Anisa Khatun, one Ghiyasuddin pronounced a triple repudiation on his wife. The words of divorce were clear and effectual, there was an irrevocable divorce. There was no remarriage between the parties, nor was there any proof of intermediate marriage. The couple afterwards lived together and five children were born. The union was void and the five children born after the triple divorce were held to be illegitimate. The decision, in consistence with the rule of Talaq-ul Biddat, appears to be harsh and falls beyond the scope of Islamic original spirits. Because triple pronouncements were regarded as single pronounments during the prophet’s lifetime, during the Caliph Abu Bakr’s reign and also for more than two years. From this point of view, the reunion between the couple before the expiry of iddat was valid and the five children were legitimate. Besides the above types of divorce, it can also be implemented by the wife i.e.Talaq-e-Tawfid, by mutual consent i.e. Khula and Mubarat and by judicial process i.e. Lian and Faskh. According to the Dissolution of Muslim Marriage Act 1939, a Muslim woman can apply for divorce under certain circumstances.  We know that this practice does not give the parties an opportunity of reunion by reconciliation as the Qur’an formulates directing -And divorced women shall wait ( as regards their marriage) for three menstrual periods, -.and their husbands have the better right to take them back in that period, if they wish for reconciliation-.-. Moreover, it further does not leave the scope of counting iddat so that, in the meantime, they can reconsider. The wording of Qur’an in this regard is – O Prophet (SAW) ! when you divorce women, divorce them at their Iddat, and count their Iddat–. Actually Talaq is of two approved types as mentioned above as the Qur’an says – The Talaq is twice, either you retain her on reasonable terms or release her with kindness– Thus, it is undoubtedly proved that the Holy Qur’an does not ever recognize Talaq-ul Biddat and neither the Hadith does. So the question when or how the disapproved form of talaq was revealed in Islamic laws should be mentioned here for the convenience of the reader to justify the practice, whether they should mean it as obligatory in their daily life or not. The reason behind it has been finely described by Syed Khalid Rashid in his prominent book -MUSLIM LAW-, he narrates- -The triple divorce was not allowed during the prophet’s lifetime, during the Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Omar’s time. Later on Omar permitted it because of a peculiar situation. When the Arab conquered Syria, Egypt, Persia etc., they found women here much more beautiful than their on women and hence were tempted to marry them. But those women not knowing Islam’s abolition of triple divorce in one sitting, would insist that before marrying them they should pronounce divorce thrice to their existing wives which they would readily accept to do ( as they knew Islam has abolished triple divorce and it would not be effective) and marry the Syrian and Egyptian women and would also retain their earlier wives. When the Syrian and Egyptian women discovered that they had been cheated, they complained to Omar. The Caliph then enforced triple divorce again in order to prevent its misuse by the Arabs. He had done so to meet an emergency and not to enforce it permanently-. That decision was taken by Ijma, a majority consensus, can be changed with altering facts and circumstances. Since then male dominated society took the practice as a machine of oppression to women, they remained under the mercy of their husband and a threat of immediate breaking up of marital life. Hopefully, Muslim Family Laws Ordinance 1961 has been passed. it provides the rules of divorce under clause 7(1) that says -that any person who wishes to divorce his wife should, after pronouncing ‘talaq’, is to inform the chairman (of Union Council) in writing as soon as possible and deliver a copy thereof to the wife. Clause 7(3) says, a talaq shall not be effective before the expiry of ninety days from the day of serving the notice to the Chairman under part (1). Clause 7(4) says: Within thirty days of the receipt of notice under subsection (1), the Chairman shall institute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, the Arbitration Council shall take all steps necessary to bring about such reconciliation. In fact, the Act makes a combination between ‘talaq-e-hasan’ and ‘talaq-e-ahsan'[14[.The lawmaker have preferred here the chairman to be effected divorce provided the time fixed expired. It leaves some loopholes of law and aristocrats can lob to the chairman to draw the facts in their favour. Because of being politicized societies in Bangladesh, the chairman (of Union Council) may be biased by his supporters. The verses of the Quran infer the parties’ family members should hold the reconciliation procedure. As it, the procedure of the expiry of ninety days and Arbitration Council for reconciliation between the parties, took from the approved two forms, the lawmaker could have paid more attention to Islamic text. It could be more acceptable and undoubted amongst the Muslim if the enactment much more complied with the same. -Recently, several cases of instant triple divorce have been reported. In Bihar, just because a woman did not vote for the candidate of her husband’s choosing in the Lok Sabha election, he pronounced triple divorce and threw her out. There are several cases of talaq that are as absurd as this one. For many Muslims, orthodox customs have become more important than Qur’anic injunctions. In India, too, Muslim women have become more conscious of their Islamic rights and are demanding changes in personal law in keeping with Qur’anic teachings. Take the issue of talaq, which is regarded as a highly sensitive issue. The Holy Qur’an is very cautious in matters of divorce. Yet, despite clear Qur’anic injunctions to the contrary, we approve of triple divorce in one sitting and destroy marital life in one breath. How can such an act be Islamic? It is the source of the greatest injustice, especially for women.'(15) It is evident that the Ulemas are divided into two views. -A Fatwa given by a Mufti of Ahl-e-Hadith rejecting the validity of triple divorce brought the Talaq issue to focus again. Maulana Asad Madani, President of the powerful Jamiate-Ulema-e-Hind has strongly opposed the fatwa and declared it un-Islamic and a conspiracy. The progressive Muslim intellectuals like Maulana Wahiuddin Khan and Ashgar Ali Engineer have upheld the fatwa. They argue that if the shari’a truly based on the Qur’an and Sunnah then there is no place for the pronouncement of triple divorce in one sitting. All the Ulemas also agree that this divorce is bidah ( innovation) and hence sinful'. Critics often criticize the practice of marriage of Hilla regarding it is a gross maltreatment against women. This procedure comes from The Qur’an. It treats as a punishment of male’s whimsical decision and intends to control their sensitiveness by acting on the strongest feeling of their nature, the sense of honor. -Thus it is a kind of relief to the wife from the harassment and tension on account of uncertainty that the Arab could cause her by repeated talaq and revocations without limit. The prophet restrained them to the limit of three repetitions, further shackle on the overbearing males was by way of the requirements of intermediary marriage. Of course the aspect of her further humiliation involved in this process was overlooked.' Clause 7(6) of the Ordinance validates the Hilla marriage when such termination is for third time. . But Shariya gives effect to it for the first time after being held the divorce irrevocable. Is there any wrong with it? This is nothing but a tighter safeguard for the women. It should keep in mind that our personal Laws come from Shari’a-Laws. We were proud of enjoying such a fine and balanced Laws that most of the western prominent writers took it as a subject of researches. Therefore, we should have kept the originality of such laws not modifying constantly except some orthodox customs that are against the spirit of The Qur’an and Hadith.
References: 1.Triple talaq, women’s rights and Indian judicial responses, an article by Saumya Uma published at www.thedailystar.net/law. issue no: 173 January 09,2003 2.Banglapedia: Muslim Personal Law. 3. Muhammad Ali, manual,284, No1; Tyabji, 143. see details: ASF A.A. FYJEE, Outlines of Mohammedan Law 4.Aqil Ahmed p-157 Mohammedan Law 5.Syed Khalid Rashid, MUSLIM LAW, p-97 6.Prof.G.CCheshire, -The International Validity of Divorce-(1945), 61 Law Quar. Rev.352)quoted from fyjee p148 7.Syed Khalid Rashid, MUSLIM LAW, p-100-101 8.Hedaya73, quoted from Khaled rashid p101 9.1931. 59 I.A. 21 see details in ASF A.A. FYJEE, Outlines of Mohammedan Law, p-158 10.These are: (i) when her husband is absconding or the whereabouts of him are not known for a period of four years or more; (ii) when her husband fails to pay for her maintenance for a period of two years; (iii) when her husband is imprisoned for a period of seven years; (iv) when she repudiates the fact of marriage; and (v) when she finds that her husband is impotent, cruel, insane, or an apostate. 11.Sura Al Baqarah: Verse 227. (The English translation of the verses from The Noble Qur’an by Dr. Muhammad Taqi-ud-din al-Hilali, Ph.D, & Dr. Muhammad Muhsin Khan. See details www.islamasoft.co.uk) 12.Sura- At Talaq : verse 1 13.Sura- Baqarah: Verse 228 14.Banglapedia: Muslim Personal Law. 15. Islam Vs Modernity: Ban triple talaq, it’s a sin, an article by Ashgar Ali Engineer published in expressindia.com. See details at 16.Syed Khalid Rashid, MUSLIM LAW, p-123 17.Sura Al-Baqarah: verse 229 –.and if he has divorced her, then she is not lawful unto him thereafter until she has been married another husband then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. There are the limits of Allah, which he makes plain for the people who have knowledge- 18. Syed Khalid Rashid, MUSLIM LAW, p-101 19.Section 7(6) of the Muslim Family Laws Ordinance (MFLO) 1961 states: “Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.” so effective.”
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