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Islam, Women and Feminism (16 May 2017 NewAgeIslam.Com)


Triple Talaq Not Fundamental to Islam



By A. Faizur Rahman

May 16, 2017

When the five-judge Constitution Bench of the Supreme Court began hearing petitions challenging the validity of instant triple Talaq, Halala and polygamy, there was a tizzy of excitement across India, especially in Muslim circles. The expectation was that these practices would be struck down as unconstitutional as demanded by some Muslim women’s groups. But the judges have made it clear that they will be examining only triple Talaq now.

A Case of Misplaced Priorities

Media reports would have us believe that the issue of gender discrimination in the Muslim personal law reached the Supreme Court because of petitions filed by victims of instant Talaq and polygyny. The truth, however, is that it was the apex court which had asked for the registration of a Public Interest Litigation (PIL) in October 2015 to be put up before an appropriate Bench. Muslim individuals and groups impleaded themselves in the case only after the PIL was registered.

Surprisingly, the case in which the PIL was ordered — Prakash v. Phulavati, (2016) 2 SCC 36 — had nothing to do with the Muslim law. It pertained to the rights of Hindu daughters under the Hindu Succession (Amendment) Act, 2005. Aware of this fact, the court conceded (in paragraphs 27-30 of the judgment) that the issue of gender discrimination in Muslim law was not directly involved in the appeal before them. They are examining it because some of the learned counsel for the parties (in the aforementioned case) raised the matter, and “the issue has also been highlighted in recent articles appearing in the press on this subject”.

The Supreme Court’s self-registered PIL brought into sharp focus Muslim issues which, despite their gender discriminatory and un-Islamic nature, did not deserve to be prioritised. Indeed, amid a storm of media hype, one of these issues — triple talaq — metamorphosed into a convenient stick in the hands of majoritarian forces to beat the Muslims with. It was politicised to the extent that it became a topic of heated debate during the recent U.P. elections as though it was the only problem facing Muslim women.

A look at the 2011 Census would reveal that out of a total Muslim female population of 83.97 million in India, about 2.12 Lakh are divorced. The census, however, does not tell us by what legal procedure these women were divorced. Therefore, even the hypothetical presumption that all these women were divorced instantly would not take the number of triple Talaq-divorced Muslim women in India beyond quarter per cent of their population — 2.12 Lakh is just 0.25% of 83.97 million. Compare this to the fact that a whopping 48.1% of Muslim women in India are illiterate as per the same census, which no Muslim women’s group seems to be aware of.

If despite these hard facts there is a misplaced emphasis on triple talaq, it is the direct result of relying on studies (criticised as totally flawed by several experts) conducted by the Bhartiya Muslim Mahila Andolan (BMMA) wherein this practice was projected as the most significant issue affecting Muslim women. Figures quoted above render this claim totally specious.

Nonetheless, to answer the question raised by the Supreme Court, instant Talaq (Talaq-e-Bid’a) has no basis in the Koran and, therefore, is not fundamental to Islam. Muslim theologians must understand that concepts not sanctified by the primary source of Muslim law, the Koran, cannot be declared as essential parts of Islam irrespective of where they draw their legitimacy from. All sources of Islamic law, be it Hadees, Ijma or Qiyas, are subservient to the Quran.

Divorce in Islam

And as per the Koran, only after four serious attempts at reconciliation (which includes arbitration) is a Muslim husband permitted to utter the first divorce, which is followed by a three-month waiting period called Iddah. If within Iddah the marital dispute gets resolved, conjugal relations may be resumed without undergoing the procedure of remarriage. But after the expiry of Iddah the husband can either re-contract the existing marriage on fresh and mutually agreeable terms or irrevocably divorce his wife — in the presence of two witnesses — by pronouncing the final Talaq. (A detailed exposition of this procedure can be found in this author’s article, “The continuing tyranny of the triple Talaq”, The Hindu, April 4, 2012)

This is the only method of divorce mandated in the Quran. Other forms such as Talaq-E-Bid’a, Talaq-E-Hasan, Talaq-E-Ahsan and Talaq-E-Tafweez are concepts of Hanafi jurisprudence. They find no mention in the Quran. Thankfully, it was the Quranic procedure that the apex court endorsed in 2002 when in the Shamim Ara v. State of U.P. case it invalidated Talaq not preceded by arbitration or reconciliation attempts between the husband and the wife.

It may be pointed out here that the pronouncement of three Talaqs in one sitting does not constitute even one divorce as held by the Ahl-e-Hadees sect. In the Quranic view, first divorce becomes effectual only after the parties have gone through the process of reconciliation and arbitration. Divorces uttered without exhausting these options have no legal validity in Islam.

In this context, the views of Salman Khurshid quoted in the media are astonishing if true. Mr. Khurshid had told the apex court on May 12 that the All India Muslim Personal Law Board (AIMPLB) is the best body to guide the court on the varying philosophies of schools of Islam about triple Talaq.

The reality is, had the AIMPLB been open-minded about different schools of Muslim thought, it would not be blindly advocating the Hanafi viewpoint that validates Talaq-e-Bid’a (instant triple Talaq). The board would have made use of legal devices such as Takhayyur and Talfiq al Mazaahib which allow jurists to amalgamate the doctrines of various Islamic legal schools to formulate reformist interpretations that are capable of outlawing unjust practices such as Talaq-e-Bid’a. On the contrary, the preface to the AIMLPB’s Compendium of Islamic Laws released in 2001 categorically states that the original Urdu version of the compendium contains extensive notes in Arabic drawn from “authentic books of the Hanafi law”, which is a clear indication of the board's intention to view Islam only through the prism of Hanafi law and nothing else.

The Way Forward

Given the reluctance of Muslim religious bodies in India to give up their sectarian conformism and delegitimise Talaq-e-Bid’at, the Supreme Court will be well within its rights under Articles 141 and 142 of our Constitution to resort to, in consultation with progressive Islamic scholars, a neoteric interpretation of the terms “Talaq” and “Shariat” mentioned in section (2) of The Muslim Personal Law (Shariat) Application Act, 1937, and lay down the procedure of divorce in accordance with the egalitarian and gender-just principles of the Koran.

In pursuance of this, the Constitution Bench may, without putting the Muslim personal law to the test of Article 13 (1), further clarify, elaborate and enlarge the scope of the Shamim Ara judgment and make the Quranic procedure of divorce ratified in that ruling common to both men and women. This would render the law gender-just by eliminating the need for Khula, wherein Muslim women seeking divorce are required to get the concurrence of their husbands or the Qazi to get the marriage dissolved.

The good news is, even outfits such as the BMMA which have been vociferously calling for a ban on triple Talaq seem to have realised the untenability of their views. The BMMA’s co-founder and intervener in the PIL before the Supreme Court, Zakia Soman, has now submitted to the Supreme Court (in her affidavit filed on March 3, 2017): “… the courts in India have by a purely interpretative exercise held that Talaq-I-Bidat or instantaneous Talaq is illegal, ineffective and has no force of law. If the same declaration is given by this Hon’ble Court by a process of interpretation of personal law, then the question of going into the constitutionality of personal law does not arise.”

The change in the BMMA’s attitude towards Muslim personal law deserves to be welcomed and must be considered seriously by the apex court.

-----

A. Faizur Rahman is an independent researcher and secretary general of the Chennai-based Islamic Forum for the Promotion of Moderate Thought.

Source: thehindu.com/opinion/lead/triple-talaq-not-fundamental-to-islam/article18459424.ece?utm

URL: http://www.newageislam.com/islam,-women-and-feminism/a-faizur-rahman/triple-talaq-not-fundamental-to-islam/d/111164




TOTAL COMMENTS:-   10


  • AIMPLB MUST HEED THE WARNING OF 85:10
    Dear zuma,   You make a good point. Instant triple talaq is no doubt a 'fitna;' and declared sinful even in hanafi legal tradition. There those who inflict the poor Muslim women with this 'fitna' may earn divine perdition.

    By muhammd yunus - 5/17/2017 3:24:57 AM



  • Mr Yunus
    This statement offered by mr Kapil Sibal a bonafide congressi  indicates what?
    That the congress supports the ayodhya issue the way it supports triple talaq not being declared invalid or unconstitutional. what are AIMPLB and Kapil Sibal playing...are they really helping the muslims...or is it otherwise.. we need to think

    By awaya - 5/17/2017 2:06:14 AM



  • If triple talaq could have negative impact upon divorced woman, it should be abandoned due to the warning as indicated in Quran 85:10.  The following is the extract:
    (سورة البروج, Al-Burooj, Chapter #85, Verse #10)-Mohsin Khan translation:
    'Verily, those who put into trial the believing men and believing women (by torturing them and burning them), and then do not turn in repentance (to Allah), then they will have the torment of hell, and they will have the punishment of the burning Fire.'
    By zuma - 5/16/2017 10:21:54 PM



  • Dear awaya,

    Qur'anic verses on time-framing of divorce as on any other theme were memorized by the companions of the Prophet as soon as he uttered them claiming revelation. His followers believed that the words came down from the divine plane. His opponents thought he was telling lies. No matter which of the two group was right, what is historically beyond doubt is that the Qur'anic verses were heard first hand by the Prophet's companions, who memorized them for oral preservation and down the generations from the Prophet's era, it is being preserved word for word in the memories of its reciters. Hence, the time framing for divorce was established at the time of the Prophet. I wonder if the same level of historical authenticity can be claimed for the exact location of the place of birth of Lord Rama. You know better. 

    By muhammd yunus - 5/16/2017 9:20:46 PM



  • It needs to be clarified that both Talaq-E-Ahsan, Talaq E-Hasan are based on the Qur’an’s three-month time frame. The only difference is - in the former case the talaq gets automatically nullified if the husband has sex wit his wife any time during the three month waiting period and in the latter it does not get nullified if he has sex during the first two months of the waiting period but abstains during the third and final month. ” Hence, it will be incorrect to say that ‘they find no mention in the Quran.”


    By muhammd yunus - 5/16/2017 8:23:51 PM



  • All is well that ends well. The article concludes (Way Forward) with endorsing BMMA co-founder, Zakia Soman's submission to the Supreme Court (affidavit dtd. March 3, 2017): “… the courts in India have by a purely interpretative exercise held that Talaq-I-Bidat or instantaneous Talaq is illegal, ineffective and has no force of law. It is virtually same as declaring instant triple talaq constitutionally invalid.
    By muhammd yunus - 5/16/2017 7:49:38 PM



  • COGNITIVE DISSONANCE
    That 48% Indian Muslims are illiterate does not lighten the issue of instant triple tallaq standing at mere quarter% as much it will not lighten the gravity of one Muslim woman being lawfully buried alive (theoretically) by her husband. Hence the comparison of the statistics is misleading.
    The fact is a poor Muslim woman who is given triple talaq instantly loses her husband, her children,  her home and hearth,  her status, her livelihood. She is barred from all her Qur'anic rights; her fundamental human rights are violated. She is abjectly dehumanized, and is struck with such overwhelming shock, trauma, and mental agony, that may be no less tormenting than that of a woman about to be buried alive. Also unlike the wife buried alive (instead of getting instant triple divorce) she will suffer stigma, disgrace and deprivation for all her life. So a woman from a poor family who is handed a triple divorce suffers more grievously than if she was buried alive – a parallel that India’s ex-Union Minister Mohammed Arif Khan aptly suggested. 
    Hence, any comparison of illiteracy and instant talaq statistics is irrelevant.    
    Besides, even if the incidence of triple talaq may be very low, this heinous custom is like the sword of Damocles (in the words of Sultan Shahin) that hangs upon the head of at least 48% illiterate woman who may be at least occasionally threatened by this verbal decree  that could even reduce her to the level of a prostitute by going through the the present form of halala .
    Educated people must understand that the gravity of a crime is not measured by statistics. And those who compare a most heinous crime committed against a few with broader and normative social issues that by are free from any stain of criminality, shame, disgrace, human rights violations suffer cognitive dissonance.
    By muhammd yunus - 5/16/2017 7:35:38 PM



  • According to Torah, Deuteronomy 24:1 and 24:3 mention that  abill of divorcement has to be issued for those who wish to divorce instead of pronouncing triple talaq.  Issuing a bill of divorcement demands two parties to consent in order that their divorcement could be valid.
    By zuma - 5/16/2017 2:26:25 PM



  • While 2.12 lakh Muslim women being triple-talaqed is 2.12 lakh too many, Mr. Rahman's views on "The way forward" are very worthy of consideration by the Supreme Court.​

    With people like  Kapil Sibal taking regressive anti-reformist positions, Congress will soon have no attraction for progressive Muslims!


    By Ghulam Mohiyuddin - 5/16/2017 2:07:06 PM



  • Equating the issue of triple talaq with the belief that Lord Rama was born in Ayodhya, the All India Muslim Personal Law Board told the Supreme Court that these were matters of faith and cannot be tested on grounds of constitutional morality.
    Dear Mr Rahman and others please comment on this defence of triple talaq by AIMPLB. What is the AIMPLB suggesting? a deal for saving triple talaq and backing down on Ayodhya

    By awaya - 5/16/2017 9:57:19 AM



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