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Islam, Women and Feminism (13 May 2017 NewAgeIslam.Com)


Triple Talaq Must Be Invalidated Constitutionally and Criminalized – Inclusion of Prohibitive Clause in Nikahnama Could Allow Its Perpetuation by Defaulters



By Muhammad Yunus, New Age Islam

13 May 2017

(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009)

A Submission to the Judicial Bench of Supreme Court Adjudicating Triple Talaq Petition

This, like the preceding article from this author, is an objective evaluation of the Legal Expert Faizan Mustafa’s second article just published on the subject with the following caption that speaks for itself.  

Nikahnamas That Bar Triple Talaq Could Work Much Better Than Making the Practice Illegal 

Since the article learned Legal Expert continues to argue against constitutional invalidation of triple Talaq and advocates the inclusion of an appropriate restrictive clause in the Nikahnama, this author, who finds the suggestion   inconsistent with the religious spirit of Nikahnama and a tacit accommodation of triple Talaq as an option for termination of marriage curtailed contractually, he is doing this critique, to reinforce his view to declare triple Talaq constitutionally invalid, rather than incorporating its prohibition in the Nikahnama.   

Critique of the Article

The first two paragraphs of the article parallel triple Talaq with a person’s freedom of choice of a bride. The parallel is untenable as triple divorce robs a Muslim married woman from the lower income group of her children (that her husband would retain in most cases), her home and hearth, her furniture and belongings that the husband may have bought for her, her livelihood (in most cases such women are housewives and the husband is the primary source of livelihood), her reputation and denies the following rights as accorded by the Qur’an:

i)       right of arbitration (2:228/229) that could help restore the marriage

ii)      free accommodation at the husband’s  house for the waiting  period of three months,  (2:231, 65:2)

iii)     to be retained by her husband if she was found pregnant after the divorce (2:228),

iv)      to have her husband (who divorced her) bear the cost of delivery, maintenance, wet-nursing (if required) of the child born of the just terminated marriage – in the event iii above does not work out.

Apart from causing grave physical sufferings, financial losses, trauma and stigma to a divorced Muslim woman and violating her fundamental human rights and those sanctioned by the Qur’an, triple Talaq can be paralleled with “the proverbial Sword of Damocles” that hangs over the head of many Muslim women”- as Sultan Shahn, the Founding Editor of this website puts it. This most unjust and oppressive custom has no relevance to the cited episode of “a man issuing a matrimonial advertisement seeking an extremely beautiful bride who should be tall, highly educated and from a reputed family” and then marrying “an illiterate, ugly-looking, short and poor girl.”The cited episode appears grossly underplay the graveness of the issue of triple divorce. 

Para-2 concludes with a statement: “It is difficult to say to what extent we can strike down private, personal decisions between husband and wife as unconstitutional.” This again is not relevant to the issue of triple tallaq, which is never a “personal decision between a husband and wife.” It is invariably a unilateral decision of the husband.

Para-3 cites Article 15 of the Constitution pertaining to privately held facilities (wells, tanks and bathing Ghats) and has no bearing with the case in point. A Brahmin who maintains a well at his own expense will have the right to exclude whomsoever he wants from using it without doing any injustice to him or defying his human rights. The example cited is non-sequitur.

Para-4 argues that even if triple Talaq is declared unconstitutional, men will continue to give triple divorce and women willing to retain the marriage will have to go through years of costly and time-consuming legal battles to get a verdict of non-dissolution of marriage. The argument is flawed. If triple Talaq is declared invalid or illegal, its pronouncer (in presence of witnesses) will be liable to prosecution unless he claims that his pronouncement was made thoughtlessly (2:225) or in a state of drunkenness – when a person’s word cannot be taken on face value (4:43).  

Para-5 argues in favor of terminating a failed marriage rather than compelling a man to continue in marriage against his will, or compelling a wife who has been given triple divorce, to live with such husbands. Point taken! But the argument is flawed as it recognizes triple Talaq as an instrument for terminating marriage. Additional argument tabled to parallel triple Talaq with Polygamy is untenable as polygamy is a totally different issue: A woman whose husband takes additional wife (es) may not be subjected to human rights violations, dislocation, deprivations, dehumanization, trauma, stigma and financial losses as many triple divorced women face. So the comparison is not valid.

Para-6 refers to a recent Allahabad High Court ruling that marriage being a contract cannot be unilaterally terminated. The Legal Expert contends that ‘all contracts can be terminated unilaterally’ by paying damages as per the contractual terms. This is not relevant of a Muslim marriage solemnized over a Nikahnama which intrinsically is dismissive of a unilateral instant divorce of a wife by her husband. A Nikahnama can allow a woman to unilaterally divorce her husband by paying compensation (2:229). The argument presented does not support the caption of the article.

Para-7 again lumps up polygamy with triple divorce. The twain present totally different scenarios as explained against Para 5 above and need not be restated. The Legal Expert has cited marriage contracts of the Mughal period on the strength of the historian Shireen Moosvi and reports three common conditions that “entitled the wife to divorce the husband or get the marriage annulled:” i) domestic violence, ii) the husband marrying another woman, iii) husband leaving the wife for long periods and a fourth condition - that of the husband keeping a female slave in some cases. But none of them mention triple Talaq or Halala for the obvious reason that triple Talaq and Halala are as antithetic to the spirit of Islamic marriage as other express prohibitions that cannot be accommodated in the Nikahnama even with mutual consent.

Para-8 suggests the adoption of the Moghul era model of Nikahnama retaining its first three conditions but substituting the fourth condition (husband buying a female slave) which is no longer applicable with the prohibition of triple divorce. However, no rationale is provided for this substitution. Keeping a mistress may not cause any human right violation of a wife. She will neither lose her husband, nor her children, nor her home and hearth, nor her status, nor her livelihood, nor risk lifelong suffering and deprivation. So, if the husband defaults on the contract and keeps a slave, the physical, emotional damages and human rights violations of an existing wife is immeasurably less than if she was given triple Talaq by violating a contractual stipulation. 

Para-9 informs that the Moghul era model of Nikahnama were routinely enforced by British judges and cites the ‘Poonoo Bibi v. Puex Push case (1875)’ to give us a glimpse of progressive marriage contracts. This has no relevance to the issue of triple Talaq.

In the concluding para, the article again lumps up the issue of polygamy and triple divorce disregarding the stark disconnect between them as expounded against Para-5 above, and advocates their inclusion in the Nikahnama.

This writer’s comment:

No Muslim man will protect himself against any potentially adulterous or homicidal behaviour of his would-be wife by incorporating clauses in the Nikahnama that his wife will not commit adultery or kill her baby child as many women did in Pre-Islamic Arabia (60:12). Since they are expressly forbidden by the Qur’an and entail gross human rights violations and legislatively criminalized, they are, like numerous other aspects of behaviour, unwritten components of Nikahnama. The same should apply for instant triple Talaq. It is expressly forbidden by the Qur’an (58:2, 2:228/2:229), causes grave human rights violations and is enduringly devastating and traumatic to its victim. The spelling out of this most oppressive and deeply misogynistic pre-Islamic custom in the Nikahnama will purport to imply imposing some limitations on the prerogatives of the male spouse, who may in practical terms, violate the contract and take recourse to this practice, which is nothing short of gender terrorism as expounded in one of my previous articles [1]. In other words, instant triple divorce must be declared constitutionally invalid and culpable in the eye of Law, and not included in Nikahnama as a condition of prenuptial contract.

Triple Talaq must not be confused with Polygamy that i) is permitted in Islam in exceptional cases – though the Qur’an’s holistic message stands for monogamy [2]  and ii) cannot be paralleled with triple divorce by any stretch of imagination on human rights violations and traumatic impact to a wife (existing versus divorced).

1.       AIMPLB Advocates Of Instant Triple Talaq Are Gender Terrorists And Traitors Of Islam And May Be Sued For Human Rights Violation Under Cover Of Religion

http://www.newageislam.com/islam,-women-and-feminism/muhammad-yunus,-new-age-islam/advocates-of-instant-triple-talaq-are-gender-terrorists-and-traitors-of-islam-and-may-be-sued-for-human-rights-violation-under-cover-of-religion/d/110871

2.       Chapter 31.2, Essential Message of Islam

Earlier Articles by This Author on the Subject:

-        Qur’anic Sharia (Laws) On Divorce: Triple Divorce, Temporary Marriage, Halala Stand Forbidden (Haram)

http://newageislam.com/islamic-sharia-laws/the-qur’anic-sharia-(laws)-on-divorce.--triple-divorce,-temporary-marriage,-halala-stand-forbidden-(haram)/d/6391

-        The Medieval-Era-Rooted, Qur’an-Conflicting Muslim Personal Law (Sharia Law) Must Be Reformed To Avoid Injustices to Muslim Women – An SOS to the Indian Ulema Fraternity

http://www.newageislam.com/islamic-sharia-laws/muhammad-yunus,-new-age-islam/the-medieval-era-rooted,-qur’an-conflicting-muslim-personal-law-(sharia-law)-must-be-reformed-to-avoid-injustices-to-muslim-women-–-an-sos-to-the-indian-ulema-fraternity/d/97692

-        Supreme Court Has Already Declared Triple Talaq Invalid – So What Is the Need for the Recent Petition to the Supreme Court

http://www.newageislam.com/islam,-women-and-feminism/muhammad-yunus,-new-age-islam/supreme-court-has-already-declared-triple-talaq-invalid-–-so-what-is-the-need-for-the-recent-petition-to-the-supreme-court/d/111090

----

Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.

URL: http://www.newageislam.com/islam,-women-and-feminism/muhammad-yunus,-new-age-islam/triple-talaq-must-be-invalidated-constitutionally-and-criminalized-–-inclusion-of-prohibitive-clause-in-nikahnama-could-allow-its-perpetuation-by-defaulters/d/111139

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TOTAL COMMENTS:-   4


  • During our olden days people keep their weapons like swords big knives, daggers etc. at the top of the roof so in their fits of rage they cannot immediately attack others. It will take lot of time to climb to the roof and come down. By the time they are at the ground much of their anger would subside. Unfortunately the AIMPLB doesn’t have this wisdom. For husbands it is always ready to use the triple talaq at the drop of a hat. Perhaps they may have the wisdom how to stop suicide bombings in the Mosques.


    By Royalj - 5/18/2017 8:27:54 PM



  • The discussion on triple Talaq is irrelevant in a country where pre-marital sex and "dumping" of the partners is glorified as SEXUAL REVOLUTION. Atleast, in triple talaq the women get alimony.
    By Mohammad Arif - 5/16/2017 7:23:22 PM



  • When people differ in their views, the best solution is to provide options so that they can choose whatever suits them and their beliefs. In course of time, society will move in the desired direction smoothly and without friction.

    There are various social/religious bodies that can guide the people with the model contract of marriage or Nikahnama.

    I know of women who live with their husbands but consider themselves as divorced and do not allow their husbands any physical relationship. This is because their husband uttered Talaq thrice but did not treat the same as divorce but the wife following her own understanding of the religion, considers herself divorced. 

    The SC declaring TT as unconstitutional will lead to many similar situations where one partner or the other or both will consider the marriage as annulled on the husband pronouncing Talaq thrice on a single or even different occasions, with or without observing the period of iddat while the law considers all such divorces except those granted by the courts as illegal.



    By Naseer Ahmed - 5/14/2017 12:25:27 AM



  • When young people (and their parents) are in the middle of the excitement of wedding preparations they are in a completely different frame of mind from the mental state they are in when the marriage hits the rocks. People who are about to get married cannot be trusted to think of the precautions and sub-clauses necessary in a nikahnana in order to protect themselves from future injustices. 

    That does not mean that nikahnama cannot be an effective instrument for well sophisticated people. But for the vast majority of marriages, a universally applicable delineation of procedures and protocols for divorce that are just, fair and egalitarian  is necessary.


    By Ghulam Mohiyuddin - 5/13/2017 2:04:43 PM



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