As the petition of Shayara Bano, admitted
by the Supreme Court, catches media attention and many raise the chorus for a
ban on the practice, there are a few things that need to be said to put the
matter in perspective.
It is a little-known fact that triple Talaq
or an irrevocable divorce made by three pronouncements at the same time is an
extra-Quranic practice that has been evolved by interpretation by doctors of
jurisprudence within certain schools of interpretation.
Foremost among these is the Hanafi School,
which incidentally claims the adherence of a large majority of the Sunni Muslim
population of the subcontinent.
The Sura' in the Quran dedicated to the
subject of divorce which is titled "Talaq" prescribes the following
procedure for divorce: a period of Iddat of three months (or in case of
pregnancy, the duration of pregnancy) has to be provided to the wife after
divorce is pronounced during which it is prohibited to turn her out of the
In fact, it is recommended that the woman
should also not leave of her own accord as this reduces the possibility of
Further, divorce can be pronounced only
during prescribed periods, which must not be during the wife's menstrual cycle.
The stated reason according to Abdullah
Yusuf Ali, an author whose translation of the Quran into English is popular and
widely accepted, is that it is a time when attraction is at an ebb for the
husband on account
At the end of Iddat, the verse says
"Either take them back on equitable terms or part with them on equitable
terms; and take for witness two persons from among you endued with justice, and
establish the evidence before God." (Sura' 65:2)
This is not the sole reference; the
requirement of a period of reconciliation and treating wives equitably in case
of separation occurs repeatedly in the Quran and is also seen in other verses on
the subject. (See Sura' 2:228)
Thus, the following emerge as the essential
requirements for divorce to take effect:
pronouncement (that is not made during the menstrual courses of the wife)
2. A period of
three months of habitation in the same house to consider the possibility of
Reconsideration at the end of this period
4. The final
decision being pronounced in the presence of two reliable and just
5. If a decision
has been taken to part ways, a parting on terms equitable to the wife
Contrast this with the practice of the
so-called "triple Talaq" practised by Muslims of the Hanafi School,
which is missing four of the five essential elements of divorce prescribed by
Even the timing restriction mentioned above
for when Talaq may not be given is not respected. AA Fyzee, the author of the
well known treatise Outlines of Muhammadan Law classifies triple Talaq as a
Biddah (which literally translates into "heretical innovation") or
disapproved form of Talaq which is "lawful, although sinful".
According to the author, this form of Talaq
is not permissible in Ithna Ashari and Fatimid laws which are followed
primarily by the Shia community.
Both these schools of jurisprudence insist
among other things on Talaq to be given in the presence of reliable witnesses
for it to be valid.
Mulla in his "Principles of Mohammadan
Law" says that Talaq-ul-Biddat was introduced by the Omeyyade monarchs
over a century after the life of the Prophet. He states that this form of Talaq
which he describes as "heretical divorce" is "good in law,
though bad in theology". For a system of rules that claims its roots in
theology, the very existence of such a category is a matter of grave concern.
Amir Ali, another scholar of Muslim law who
is widely regarded as an authority on the subject within the subcontinent
writes that the Prophet pronounced "Talaq" to be the most detestable
before the Almighty God of all permitted things and states that "towards
the end of his life he went so far as practically to forbid its exercise by the
men without the intervention of arbiters or a judge."
Seen in this light, the virulent defence of
a disapproved form of a detestable sinful practice by the pious Ulema among the
Hanafi Muslims of the subcontinent and its acceptance as the prevailing norm is
ironic, to say the least.
Frankly, its just as well that the demand
for abolition of triple Talaq this time has come from within the Muslim
community and more importantly, is being taken as an independent cause of action
and is not being generalised into a demand for a Uniform Civil Code.
The demand for a Uniform Civil Code, more
than anything else, had stifled voices speaking up against the practice so far.
It isn't lost on anyone that the people who speak the loudest against
oppression of Muslim women using this as a smokescreen to hardsell the Uniform
Civil Code are right-wing organisations who have no respect for the rights of
women of their own community.
Hopefully, with triple Talaq having been
singled out for judicial scrutiny this time, and that too at the behest of
Muslim women, there are chances of India joining the long list of countries,
several of them following Shari’ah law, in regarding triple Talaq as a Biddah
or a heretical innovation against the grain of Islam.
However, before we get carried away with
the idea of the courts as saviours of the Muslim women's right to equality and
dignity, let us not forget that some of the practises that are being decried as
"innovations" today are the result of judicial dicta, which have had
a significant role in the formulation of the principles of the so-called
"Mohammadan Law" in the subcontinent.
A flair that was added by the court in
Ahmad Kasim Molla versus Khatun Bibi, AIR 1933 Cal 27 was that the presence of
the wife or even effective communication to her was unnecessary for Talaq to
This ruling, which has been followed ever
since, is the genesis of the practice of husbands divorcing their wives by
sending SMSes, WhatsApp messages, emails and letters.
This practice is also being assailed before
the Supreme Court in the present batch of petitions.
Needless to say, equally if not more
important than the final outcome of this litigation will be the effect of the
ground swell within the Muslim community itself, lest Shayara Bano gains a
victory that suffers the same fate as Shah Bano's historic win.
"If some Muslim Ulama arrogate the pronouncement of 16:43
to themselves to support the deeply misogynistic custom of triple talaq, this
writer is compelled to say, God witnessing, that the obsessive misogyny and unmitigated disregard
of the misery of instantly divorced poor Muslim women has put a blinker on
their mind’s eye against what is clearly written in the Qur’an (about time-framing
of divorce as well as in the verse 16:43), or has turned their spiritual
bearing upside down that they are telling lie upon lie about the Qur’an to
defend the triple talaq – God knows best.
Who all are ‘Ahl e Zikr’ in the Qur’an? – A textual
analysis of Qur’anic passage 16:43-44 to get a clear answer.