By Faizan Mustafa
July 10, 2017
The judgment in the triple divorce matter
may be delivered soon. There were some interesting questions from the bench. A
question that was not answered with sufficient clarity was how can triple
divorce be sinful yet legal. The distinction between “law” and “morality” is
taught in the first semester of LLB. The distinction between “what law ought to
be” and “what law is” is well known. The Indian Constitution’s Preamble
pertains to the realm of “ought to be”; its main part pertains to “what the law
Take the example of adultery. In India men
are punished for adultery but women are not. Is adultery not an example of
something sinful yet legal in most Western countries? Similarly, homosexuality
or same sex marriages may be considered by many to be sinful but they are legal
in a number of jurisdictions. The concept of “sin” draws on blind beliefs based
on morality and no court can make something pious if a religious sect considers
it sinful. At the outset, we must understand that Islamic law is a jurist-given
system of rules. Most of its sources are not divine. Only the Quran is divine
and the Prophet, though a human being, was divinely-inspired. There are very
few verses in the Quran which actually lay down law. Quranic verses are vague,
general and, at times, contradictory and extracting law from them is difficult.
They have to be read along with other sources such as the sayings and doings of
the Prophet, consensus amongst the learned, customs, and analogical deductions.
Public interest also plays a role in such a process. The text of the Quran may
not, in all situations, tell us the rules of law for all the schools of
There is a divergence of opinion amongst
Islamic jurists which means that there are several schools of Islamic law.
Every Muslim has a right to follow a school. He is also free to not follow any
school. One may also cherry-pick rules from different schools. In India, most
Muslims follow the Hanafi School. The controversy over instant triple Talaq
stems from the fact that this school deems this practice as valid.
Article 26 of the Constitution guarantees
freedom “in matters of religion” to not only “every religious denomination” but
also to “to any sect thereof”. Thus, the Hanafi school enjoys constitutional
protection. Since in the case before the Supreme Court the dispute is about
Hanafi law (Shayara Bano is Hanafi), the court should ideally examine
authoritative Hanafi books such as Hedaya and Fatwa-e-Alamgiri to
investigate the validity of triple divorce.
The Hanafi-dominated Muslim Personal Board
does not have the courage to say that under the law of the school, we need to
primarily look at the opinion of Abu Hanifa and his two disciples, Imam Yusuf
and Imam Mohammad, who developed the jurisprudence of this school. In so far as
looking at the source of law for the Hanafi school is concerned, the Quran is
not the opposite repository — though it is the divine book and held sacred by
those adhering to the school. The opinion of leading jurists of the school is what
matters. They imitate the jurists of their school and thus their reluctance for
Denominational freedom, both in Islam and
under the Constitution, does permit strange beliefs. Thus Muta or
temporary marriages are valid for Shias but absolutely sinful under Sunni
schools. Ahmadiyas, who have been held as Muslims by our courts, do not accept
the finality of Prophet Mohammad — the core belief of other schools. The
exalted status of Saiyedna or Dai is legal under the Bohra School but sinful
under other Shia schools and all Sunni schools. Some Muslim sects even believe
in the 10 incarnations of Vishnu and follow classical Shastric Hindu law.
Even within the Hanafi School, something
may be sinful yet legal. Thus, if a person makes a gift of his entire property
in favour of one of his children to the exclusion of others, such a gift is
sinful but valid. Even the Prophet’s strong disapproval cannot make an action
illegal under the Hanafi School. Though the Prophet has expressed his
displeasure on bequeathing property to one child while excluding others as well
as on instant triple Talaq, both practices remain valid under the Hanafi
The issue, thus, is not whether triple
divorce is an essential practice of Islam but whether it is an essential
practice of Hanafi School. In my opinion, it is not. But my opinion or my
opposition to triple divorce is not under dispute.
The real problem which the court needs to
appreciate is that once there is triple divorce, the Hanafi school regards
resumption of the matrimonial relationship between the divorced couple as both
sinful and illegal. The judgment of the court may make such a reunion legal but
if illiterate masses, neighbourhood and relatives continue to regard such a
reunion as sinful and illegitimate, we will be creating more problems for the
couple and their children.
In fact, in one such situation the wife
went to the Delhi High Court (Masroor Ahmad case) with charges of rape against
the husband. Thus striking down triple divorce as unconstitutional or holding
it un-Islamic in itself will not help. We must educate people and the Board
must ensure that all divorces henceforth happen as per the Quranic procedure.
The best solution to remove the menace of triple divorce under the Hanafi
school is to order the incorporation of an explicit condition in the Nikahnama
that there shall be no instant triple divorce and the wife too will have a
right to divorce.
Faizan Mustafa is vice-chancellor, NALSAR University of Law, Hyderabad.
What I have said in my article should be obvious to anyone with a background in law. As far as the Quran is concerned, only one verse needs to be understood. And yet, there is none among the jurists who have said the same thing!
The jurists work with blinders and can see legal issues only in the light of case law or what the jurists have decided in the past. The legal profession is such. These people are simply incapable of thinking afresh keeping aside past judgments. Past judgments must certainly be used only to check the correctness of present day views and decisions.
If these people see contradictions in the Quran, it is simply because they see the Quran as a secondary source. If they learn to see it as the primary source, they will not find a single contradiction in the Quran but contradictions in the human part of the sharia law. They project the flaws of the human sharia law onto the Quran and blame the Quran because the sharia law is supposed to have been derived from the Quran! They do not blame the human part of the faulty derivation.
2. As regards the time-framing of talaq is concerned, this
statement in the article is flawed: “Quranic
verses are vague, general and, at times, contradictory and extracting law from
them is difficult.” The jurist luminary must understand the Qur’an does not
claim to be a book of law. It lays down the principle of jurisprudence and also
addresses the prevalent injustices of the era – instant talaq being one of them
which it expressly forbade. Thus the statement purports to blame the Qur’an regarding
the lawfulness of instant talaq – a blame that lies on the jurists of this era
and not on the Qur’an.
3. The statement : “They (Islamic Law) have to be read along with other sources
such as the sayings and doings of the Prophet, consensus amongst the learned,
customs, and analogical deductions” relate to the foundational principles of
Islamic law as it evolved in the early centuries of Islam. But since this
methodology dates back to an era more than a millennium from this era and is
purely the work of human agency, the jurists of this era have to use their
reason to update them within the broader moral imperative of the Qur’an, as it entrusts them:
“And among the people of Moses there is a
community who guide (others) in the way of truth and do justice (ya‘dilun) thereby” (7:159).
“Among those that We have created, there is a community who guide
(others) in the way of truth and do
justice (ya‘dilun) thereby”
The suggestion to the court to examine
authoritative Hanafi books such as Hedaya and Fatwa-e-Alamgiri to
investigate the validity of triple divorce” is patently absurd because any and
all fawas are merely opinions of jurists, quadi-ul-qadat (Chief Jurist), Muftis
and rulers of a given era that are not binding on all succeeding generations
until eternity. The doctors of law of this era should put their
act together and make necessary reforms in the law rather than toeing the clergy
line and blaming the Qur’an.
The statement in the article: “though
it (the Qur’an) is the divine book and held sacred by those adhering to the
school, the opinion of leading jurists of the school is what matters” virtually
dismisses the Qur’an as source of guidance and Law and privileges the early
jurists of Islam instead the Qur’an of as the final authority in Law. This is
virtually a rebellion against the Qur’an, not because it is ambiguous but because in many areas it conflicts with the interest of the rulers and the dominant male elite - and its moral imperatives are diametrically opposed to the animal instincts of man.
5. All is
well that ends well.
luminary and legal expert has come to the right conclusion in declaring: “all
divorces henceforth happen as per the Quranic procedure. .. and to order the
incorporation of an explicit condition in the Nikahnama that there shall be no
instant triple divorce and the wife too will have a right to divorce.”