By Maulana Wahiduddin Khan
23 August 2017
As an Islamic scholar, I would say that the
Supreme Court’s judgment delivered on August 22 – striking down instant triple
Talaq as being unconstitutional – is totally right. Triple Talaq is not a
principle of Islam, but is rather a ruling of certain Muslim jurists, adopted
in the later period of Islam. In this matter, Muslim jurists need to correct
themselves instead of wrongly justifying triple Talaq.
In Islam, Talaq is seen as an undesirable
practice. But in rare cases, a couple may feel that their marriage is not
working, and in this situation, divorce is allowed. However, there is a
prescribed method laid down by the Quran (2:229). That is, a divorce is
finalised over a period of three months. In the first month, the husband tells
his wife that he has given her one Talaq. Both then wait for a month during
which they could reconcile. After the first month, he may either take back the
Talaq or pronounce it a second time. Both wait for another month, at the end of
which, if he pronounces a third Talaq, the divorce becomes final.
This pattern was adhered to during the time
of the Prophet and the first caliph Abu Bakr. There were rare cases, when a man
would come to the Prophet or Abu Bakr, saying that he had divorced his wife by
saying Talaq three times in one go. Then the Prophet and Abu Bakr would
consider this an instance of Talaq being said in anger and so did not finalise
the divorce. Rather, they told him that his uttering ‘Talaq’ three times in one
instance would be regarded as only one pronouncement of Talaq.
During the time of the second caliph Umar,
the number of people who began to pronounce Talaq in one sitting increased.
Umar, in a few cases, ruled the saying of Talaq three times in one go as final
and annulled the marriage. But he would also flog such men as deterrent
punishment. This helped in curbing instances of saying Talaq at one go.
Certainly, Umar’s practice was not a Sharia law. His step was rather an example
of Hukm Al-Hakim, or an executive order. His annulment of marriage in
cases where men said Talaq three times in one go was an exercise of the
discretionary power of a ruler. Such executive orders are applicable to
particular cases and do not have the status of Sharia law.
In the British period, men again began to
divorce their wives in one sitting. Now Muslim jurists belonging to the Hanafi
school of law revived Umar’s order and made instant triple Talaq valid. The
Hanafi jurists cited Umar’s precedent, but this reference was unwarranted,
because Umar had done so by way of an executive order while, in the later
period, Hanafi jurists did so by issuing a fatwa. Moreover, Umar would also
flog men as deterrent punishment, while Hanafi jurists were not in a position
to flog anyone.
In such a scenario, my advice to Hanafi
Muslims is to take the Supreme Court’s verdict as a reminder and review their
practice. They should consider triple Talaq in one go as a case of a decision
having been taken in anger and take it as only one Talaq – as had been done
during the time of the Prophet.
Talaq Must Be Invalidated Constitutionally and Criminalized – Inclusion of
Prohibitive Clause in Nikahnama Could Allow Its Perpetuation by Defaulters
Advocates Of Instant Triple Talaq Are Gender Terrorists And Traitors Of Islam
And May Be Sued For Human Rights Violation Under Cover Of Religion
Process for Divorce in the Quran
Shahin Raises Triple Talaq Issue at UNHRC, Asks Muslims to Engage In Serious
Rethinking Of Islamic Theology and Bring It In Line With the Needs of 21st