09 May 2017
Legal Expert Faizan Mustafa
On May 11, the Supreme Court is set to
decide whether triple Talaq is unconstitutional. Should it indeed declare the
practice unconstitutional, as is widely expected, what would be the
implications? What does unconstitutional mean? Will the system of Halala, or
intervening marriage, stand annulled? And, above all, will it uplift Muslim
women economically and socially?
Scroll.in put these questions to Dr Faizan
Mustafa, vice chancellor of Nalsar University of Law, Hyderabad. He explains
all you would want to know about Muslim Personal Law, the forms of divorce in
Islamic law, and the implications of the Supreme Court declaring triple Talaq
unconstitutional. Excerpts from the interview:
Supreme Court has been petitioned to declare triple Talaq unconstitutional.
What does the word “unconstitutional” mean?
The Indian Constitution has not explicitly
conferred the power of judicial review, which also includes the power to
declare any law unconstitutional, on the higher judiciary. This power is,
basically, implied in Article 13(1) of the Constitution, which says that any
law inconsistent or in contravention of the fundamental rights shall be void to
the extent of inconsistency or contravention.
The Indian judiciary, as custodian of the
Constitution and guarantor of the fundamental rights, has not only assumed this
power under Article 13(1) but held it to be the basic structure of the
Constitution. Moreover, Article 13(3), in its definition of “law”, neither
mentions enacted law, that is, Act of Parliament or state legislature, nor
talks of “personal laws”. Nevertheless, in several cases courts did strike down
laws passed by competent legislatures. It is unfortunate that Indian courts
have been indulging in the strict scrutiny of laws passed by competent
legislatures and, at times, sitting on judgements even on policy matters best
left to the wisdom of government.
Article 13(3) basically talks of “laws”
made by the executive such as ordinances, bye-laws, orders, rules, notifications,
and also refers to customs and usages. Technically speaking, personal laws and
customs are different; though the Narendra Modi government has taken the stand
that customs also include Muslim Personal Law.
But the Shariat Act was passed in 1937 so
that Muslims are not governed by un-Islamic customs. Thus, the 1937 Act was
passed to undo customary laws.
that case, the question arises as to what constitutes Muslim Personal Law?
Muslim Personal Law in India is not
entirely Islamic law. It consists of three parts – opinions of Muslim jurists
(which are not codified), decisions given by British and Indian judges, most of
whom were non-Muslim. Most decisions have held triple divorce as valid. Third,
it includes laws that have been enacted by Parliament such as the Shariat Act,
1937; Dissolution of Muslim Marriage Act, 1939; Muslim Women (Protection of
Rights on Divorce) Act, 1986; Waqf Acts, etc. Only the enacted part –Acts –
contains “laws” within the meaning of Article 13.
Opinions of Abu Hanifa (who established one
of the five schools of Islamic jurisprudence, Hanafi) and other jurists given
over 1,000 years ago cannot be struck down as unconstitutional. Can we, for
instance, ask the Supreme Court to declare (19th century legal philosopher)
John Austin’s opinion on sovereignty or, for that matter, the Hindu law-giver
Manu’s view as unconstitutional? This cannot and should not be done.
the Shamim Ara case in 2002, the Supreme Court laid out the procedure for
divorce under Muslim Personal Law. Again, the Delhi and Guwahati High Courts
had earlier ruled that a Talaq pronounced thrice in one sitting should be
counted as one. Given this past, in what ways would it be a departure if the
Supreme Court were to declare triple Talaq unconstitutional?
The Shamim Ara judgement did not
specifically say three divorces pronounced in one sitting will be counted as
one. But it did quote with approval several High Court decisions which counted
three divorces as one, and ruled that divorce had to be for a reasonable cause
and preceded by efforts at reconciliation between the divorcing couple.
Thus, in effect, as far as the law laid
down by the Supreme Court is concerned, the option of triple divorce is no more
available. This is why I consider the current legal challenge to triple divorce
unnecessary. At best, the Supreme Court may reiterate its decision in Shamim
Ara case and explicitly declare that three pronouncements in one sitting will
now be treated as just one revocable divorce.
In my opinion, the court should make the Nikahnama
(a contract that is drawn to spell out the rights of the marrying couple)
mandatory. The Nikahnama should include conditions like no triple divorce would
be given or no second wife will be taken, etc.
“Juristic opinions given over 1,000 years
ago cannot be struck down as unconstitutional. Can we ask the Supreme Court to
declare John Austin’s opinion on sovereignty or, for that matter, the Hindu
law-giver Manu’s view as unconstitutional? This cannot and should not be done.”
term like “one revocable divorce” would be all Greek to most people. I guess
the import of triple Talaq cannot be understood unless people know how the
three forms of Talaq– Ahsan, Hasan, Talaq-ul-Biddat – differ from each other.
Could you explain the differences?
The Quran lays down an elaborate procedure
for divorce, which the All India Muslim Personal Law Board has now accepted.
Muslim women who went to the court were demanding nothing more than reverting
to the Quranic procedure of divorce, which, in their opinion, was the right way
to dissolve a bad marriage.
Under the Quranic scheme now adopted by the
board, divorce involves seven steps.
First, if there are differences between
spouses, they will try to amicably resolve them by talking to each other in the
spirit of forgiveness. Two, if they fail to resolve their differences, they may
temporarily withdraw from each other’s company even though they continue to
live in the same house.
Should these two measures fail, there is
the third stage: the couple should try sincere reconciliation within their
families or appoint an arbitrator from each side who would leave no stone
unturned to bring about reconciliation between them.
However, if arbitration does not yield
positive results and there are visible signs of marriage having broken down
irretrievably, only one divorce (or Talaq) is to be pronounced by the husband.
This single pronouncement is to be compulsorily followed by the waiting period
of three months (called Iddat) or until the delivery of the child if the wife
In case the husband and wife change their
mind during the waiting period and want to stay married, the divorce would
stand revoked. If Talaq isn’t revoked within the waiting period, divorce would
become complete at the end of three months or until the end of pregnancy. This
system is known as Talaq-e-Ahsan, where only one divorce is enough to dissolve
marriage. Jurists have termed it as the “most approved” form of divorce.
If one divorce is pronounced each month for
three months – of course, preceded by above steps – it is called Talaq-e-Hasan
or the “approved” form of divorce.
Finally, if three divorces are given
instantly without the above mentioned seven steps, as also without any effort
of reconciliation through arbitration, it is called Talaq-e-Biddat or the “most disapproved” form of divorce.
isn’t the system of pronouncing Talaq three times in one sitting an innovation?
After all, it is not mentioned in the Quran. How did this innovation come
about? Why do Ulema and clerics insist on persisting with it?
There is no unanimity on this issue.
Juristic opinion is divided. The Quran itself declares: “Divorce can be
pronounced twice: then, either honourable retention or kind release should
follow…Then, if he divorces her, she shall not be lawful to him unless she
first takes another for a husband.”
This verse, in Arabic, uses the expression
“Al-Talaqu Marratan”, which means
that divorce may be pronounced twice. The term “Marratan” implies that there should be a sufficient interval
between the two pronouncements of divorce.
For instance, if I were to say “I went to
your office twice but you were not there”, it cannot mean that I went to your
office twice at one go. There has to be a reasonable interval between my two
visits. Likewise, there has to be a gap between two divorces. Therefore,
pronouncing triple divorce in one sentence – I give you Talaq, Talaq, Talaq– or
three sentences at one go – I give you Talaq, I give you Talaq, I give you
Talaq– is against the Quran.
But Imam Bukhari (a 9th century Islamic
scholar) considered triple divorce as valid from the above verse. He lay
emphasis on the words “if he divorces her”, which means the third time.
In fact, except for Ahl-e-Hadees, most
Sunni schools consider triple divorce (in one sitting) valid. Even Hasan, son
of Ali and grandson of Prophet, whom Shias follow, probably gave triple divorce
to Aishah Khathmiya. After her waiting period, when Hasan sent her a gift, she
said, “This is a very small gift from the beloved from whom I have been
separated.” On learning this, Hasan broke into tears and said: “Had I not heard
from my grandfather the prohibition about such a woman, I would have taken her
back in marriage.”
there are opinions to the contrary as well.
Some jurists are of the view that once on
hearing that someone had pronounced triple Talaq, the Prophet turned red. He
stood up and reportedly said, “You have made mockery of the Quran in my
lifetime.” This has been interpreted to mean that triple Talaq is not valid.
Others argue that had divorce not become
effective, the Prophet would not have become so angry. There are other
instances, too, where triple divorce was enforced by the Prophet if the
intention was to give three divorces. On the other hand, if Talaq was
pronounced thrice with the intention of just emphasising it, it was taken to
mean merely one revocable divorce.
Sahih Muslim and Abu Da’ud (two of the most
authentic collections of Hadith, or the traditions of the Prophet) tell us that
during the Prophet’s life as well as in the reign of the first Caliph Abu Bakr
and the first two years of Umar’s rule, three divorces given at a time were
taken as one divorce only. But after complaints that people were misusing this
practice, Umar enforced triple divorce.
So, despite the Quranic injunction, Umar
was compelled to enforce triple divorce because a strange new situation had
arisen. When the Arabs conquered Iraq, Syria, Egypt and other nations, they
wanted to marry the women prisoners whose beauty captivated them. But the women
insisted that their suitors give irreconcilable and irrevocable divorce to
their wives. This was because they feared that the Arabs may revoke the divorce
later and resume marital relationships with their wives. To satisfy them, the
men would pronounce triple divorce and pretend they had divorced their wives
Umar, a tough administrator, understood the
devious designs of his men and started to not only enforce triple divorce but
also punish the offenders by flogging.
Although the dominant juristic view holds
triple Talaqin one sitting to be valid, there are powerful dissenting voices in
each school of jurisprudence as well. Thus, there is room to treat three
divorces as one revocable divorce. Indian Ulema should consider adopting this
is the first part of a two-part interview.
Ajaz Ashraf is a journalist in Delhi. His novel, The
Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid.