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Islamic Sharia Laws (10 May 2009 NewAgeIslam.Com)

The evil of triple divorce – an unmitigated monstrosity

The concept of Talaq-e- Bidat does not fall amongst those pious Islamic institutions which, if criticised, may make the critic guilty of blasphemy, argues M.K. Sherwani

It is indeed a tragic commentary upon the issues associated with religious sentiments that they often succeed in obscuring the rational faculties to the extent that the main controversy gets buried under trivialities . This is what happened with Justice H.N. Tilhari’s historic judgement on the Quranic validity of the so-called ‘triple divorce’.

What was assailed by the Honourable Judge was not the infallibility or sanctity of Quran, Hadith or Sunna but a reprehensible practice which not being even remotely authenticated by any of the three, is being attached religious significance. Already under severe attack from and not adhered to by most of the segments of Islamic society , the concept of triple divorce ( Talaqe Bidat) does not fall amongst those pious Islamic institutions which, if criticised , may make the critic guilty of some blasphemous act. However, whether or not the judiciary is within its powers to call a spade a spade while dealing with an issue of religious denomination or whether or not the circumstances of the case did justify the disquisition on whole of Shariat law are not of much relevance for us at present.

A sense of restlessness, no doubt is visible in the Muslim community over the inertia displayed by mullas even under these strained circumstances in either unequivocally endorsing or disputing ‘Talaqe Bidat’ as the triple divorce is commonly known in Islamic parlance.Now when this monster, embellished as a bride is being taken to the Supreme Court, we must try to disclose its real Quranic identity and ascertain its legitimacy.

QURANIC CONCEPT OF DIVORCE: The Holy Quran, while stressing the sanctity of matrimonial bonds, allows their discontinuation, not according to the arbitrary will of the husband but according to certain objective considerations. Thus comes the first command –

“ As to those women on whose part ye fear disloyalty and ill-conduct, admonish them (first ) ,(next) refuse to share their beds, and (last) beat them(lightly).But if they return to obedience, seek not against them means (of annoyance), for God is most high,Great (above you all)”

“ If ye fear a breach between them twain, appoint (two) arbiters, one from his family and the other from hers. If they wish for peace, God will cause their reconciliation for God hath full knowledge and is acquainted with all things.”

( Sura Nisaa – Translation from ‘The meaning of Glorious Quran’ by Abdullah Yusuf Ali, page 190-191, Volume I)

When the means mentioned in the above injunctions have been exhausted, then arises the question of divorce and for that final unfortunate possibility too, guidelines of imperative nature have been issued. Thus comes the divine declaration.

“Prophet! When ye do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods. And fear God, your Lord and turn them not out of their houses, not shall they (themselves) leave, except in cases they are guilty of some open lewdness. Those are the limits set by God and any who transgresses the limits of God, does verily wrong to his (own) soul. Thou knowest not if per chance, God will bring about thereafter some new situation.”

“Thus when they fulfil their term appointed ,either take them back on equitable terms or part with them on equitable terms and take for witnesses two persons from among you , endured with justice and establish the evidence( as ) before God. Such is the admonition given to him who believes in God and the last day and for those who fear God, He (ever) prepares a way out”.

“Such of your women as have passed the age of monthly courses, for them the prescribed period, if ye have any doubt, is three months and for those who have no courses (it is the same). For those who carry (life within their wombs), their period is until they deliver their burdens. And for those who fear God, He will make their path easy.” (Sura Talaq, translation from ‘The Meaning of Glorious Quran’ by Abdullah Yusuf Ali, Volume II, pages 1562-1564)

A reading of these provisions is enough to convince one that firstly the revocation of marriage through divorce is the last option when all the reconciliatory measures have become infructuous and secondly it is to be operative within a specific time frame and that too when it has been preceded and followed by the procedure with which Quran circumscribes the provision. Finally the presence of two witnesses is indispensable. The Quranic philosophy of divorce is further buttressed by the Hadith of Prophet wherein he warned, “Of all things which have been permitted, divorce is the most hated by Allah”. It goes without saying that he would have referred to the divorce as is stipulated by Holy Quran and not to the one as we have come to understand it. As such in both forms i.e. Talaqe Ahsan (most approved ) and Talaqe Hasan ( approved) into which Talaq al Sunna ( i.e. in conformity with the dictates of Prophet ) has been categorised according to a slight variation in interpretation, the quintessence of the provisions remains totally unadulterated.

What emerges as the logical conclusion from the numerous Quranic verses is the fact that various aspects such as marriage, divorce , husband’s liabilities towards wife and the inheritance have been interwoven into a composite whole. An isolated treatment of any of them will take us too far from rationalism- the most important attribute of Islam.

TRIPLE DIVORCE or TALAQE BIDAT (i.e. of innovation and, therefore, not approved) ( Meaning by Asaf A.A. Fyzee, Outlines Mohammadan Law, Fourth Edition, page,151)

There is complete unanimity of opinions that in Islamic parlance the term ‘Bidat’ is used for all those practices which originated after Holy Prophet (peace be upon him). As such the use of this word as suffix with ‘talaq’ may be interpreted as a clear indication that this form was definitely not authenticated by Hadith or Sunna. If it were not so, the term ‘Bidat’ would not have been allowed and if it is really so , it remains a moot point why in their ruthless crusade against all forms of ‘bidat’, the Muslim theologians are not riding roughshod over the one relating to divorce. Having been deliberately allowed over the centuries by the vested interests to degenerate to a point where its operational effectiveness remains unchallenged even when pronounced jokingly, in a state of anger or intoxication or under compulsion, this form of divorce is obtaining only in India and that too amongst the Hanafi Muslims. The ambivalence of the position is conspicuous in the words of Maulana Mufti Mohd. Shafi of Pakistan “there is consensus that triple divorce is totally forbidden (haram) but simultaneously there is also the consensus that if one pronounces it, it becomes effective.”(Maruful-Quran,Volume VIII,page,484)

BACKGROUND: Despite being highly discursive, the arguments of those who hold that this form of divorce too does not lag behind others in hitting the target, are based mainly on the following two points.

1. That Hazrat Umar, the second Caliph used to order the public flogging of the person who happened to pronounce triple divorce in a single say but conceded it s irrevocability.

2.That its pronouncement is to be likened to a fatal blow, the effect of which operates independently of the mental condition of the person who administers it and, therefore, proceeding on this analogy, the guilt of the husband in disregarding the prescribed procedure will not neutralise the effect of divorce on wife.

Apparently carrying conviction, both the arguments are not strong enough to stand the logical test.

EXAMPLE OF HAZRAT UMAR: That Hazrat Umar used to order the public flogging of the person pronouncing triple divorce in a single say is beyond all dispute but nobody has so far provided a convincing reply regarding the continuation of this practice when its deterrent aspect has become a thing of past. It is also not so that providing deterrence in such matters is the prerogative of Islamic states only. Had an initiative to that effect come from those who derive the force of triple divorce from Hazrat Umar, the Govt., while passing the Muslim Women (Protection of Rights on Divorce) Act, 1986, would have willingly incorporated into it, a provision for punishment, whether by fine or imprisonment of those dissolute husbands who indulge in this abominable practice. Such a step on the one hand could go a long way in setting right the distortions in the whole concept of divorce and on the other could save the government from the criticism of those who sometimes rightly deplore the predicament of Muslim women.

Even in the absence of such a legislative measure, the theologians within whose domain lies the indisputable power to issue religious edicts in such matters can easily tie up the guilt with punishment and provide the pattern of Hazrat Umar that such a divorce will, as a rule , be followed by the flogging of the guilty husband within the precincts of the mosque of his locality or else he will not be allowed either to enjoy the fruits of Muslim Women Act or to derive any advantage on that basis from any other law of the land.

Besides, it is not believable that a devout, strict and austere administrator like Hazrat Umar would have clubbed together all the self-contradictory notions like willingness ,compulsion, anger , joke and intoxication as a uniform pattern producing the same effect and followed by the same amount of punishment.

2. MURDER THEORY - Sounding quite absurd, this theory fills one with a mixed reaction of disdain and ridicule. It is disdainful because the utterance of a few words ‘Talaq, Talaq, Talaq’ is compared to murder as regard the wife. It is ridiculous because the husband, definitely a murderer according to this analogy is successfully manipulating to have his punishment deferred to the Doomsday.

As this obnoxious practice has muddled the whole Quranic scheme of divorce ,we must give weightage to the advice of Badruddin Tyabji, “ Muslims can come to terms with the contemporary world only if they go straight back to the Quran and renew their faith and belief by seeking direct inspiration and guidance from it.” (The Self in Secularism, 122(1971)

Dr. Mustafa Kamal Sherwani,LL.D., Lucknow, U.P. India

Source: (The Pioneer, Lucknow, [Law], May, 27, 1994, p.7)

URL of this page: http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=1391

COMMENTS

Dear sumbal, divorce at one go is unislamic. You can very well show him this verse: "O Prophet! When ye do divorce women, divorce them at their prescribed periods, and COUNT(accurately), their prescribed periods: And fear Allah your Lord: and turn them not out of their houses, nor shall they (themselves) leave, except in case they are guilty of some open lewdness, those are limits set by Allah: and any who transgresses the limits of Allah, does verily wrong his (own) soul: thou knowest not if perchance Allah will bring about thereafter some new situation. " (surah talaq ch 65 verse 1). you can also refer to ch 2 verses 228-232, 236,237,241; chapter 4 verse 35. I hope your husband returns to you.
By Aiman Reyaz - 6/17/2012 4:50:39 AM
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Dear brother nice article,
actually i love my husband more than my self but he said divorced three times in one raw,now i am saying to him comeback he is refusing he is saying that divorce is valid,how i can convience him that for the sake of childern dont destroy home
By sumbal begum - 6/17/2012 1:30:56 AM
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Dear Sultan Sahab, I hope that Mr Yoginder Sikand would revive the Link of his own column he written in 2005 on Tripple Talaq. "QUOTE" Interrogating Triple Talaq: The Ahl-i Hadith Counter-Perspective by Yoginder Sikand

Demands to ban the obnoxious practice of triple talaq (divorce) in one sitting have been gathering momentum in recent years in India, but the vast majority of the Indian ‘ulama have been opposed to any such move. Leading Deobandi and Barelvi scholars, whose schools represent the majority among the Indian 'ulama, see the practice as Islamically valid, and as an integral part of the shari'ah. Hence, they insist, the practice cannot be scrapped, as that would allegedly be tantamount to interfering with what they regard as divinely revealed laws. This opinion appears to be widely shared among the ‘ulama associated with the All-India Muslim Personal Law Board (AIMPLB) which explains the refusal of the Board to ban the practice despite considerable public pressure to do so.

The argument that the practice of triple talaq in one sitting is an integral part of the shari'ah is hotly contested by a minority among the 'ulama, such as those belonging to the Ahl-i Hadith, among the Sunnis, as well as by the Shi'as. This clearly points to the diversity of understandings of what precisely constitutes the shari'ah, and to element of human effort in the construction of notions of the shari'ah itself, a fact that the conservative 'ulama themselves are reluctant to acknowledge. The refusal of the AIMPLB to ban the practice of triple talaq clearly suggests that one can hardly expect the 'ulama associated with the Board to take any bold step in the future that might threaten to undermine the patriarchy that is sought to be provided with a suitable 'Islamic' gloss. The Deobandi 'ulama who dominate the Board are carefully groomed in a tradition of extreme patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars.

Hope for reform, therefore, lies in the writings and arguments of Islamic scholars from other schools of Islamic thought and jurisprudence. One such school is the Ahl-i Hadith, representing a small minority among the Indian Muslims. In contrast to the Deobandis and the Barelvis, the Ahl-i Hadith insist that Muslims need not be bound by jurisprudential precedent of the early 'ulama, but, instead, should rely solely on the Qur'an and the genuine (sahih) Prophetic traditions. They are rigid scripturalists and extreme literalists, sharing much in common with the Wahhabis of Saudi Arabia. Although their position on a range of issues is thoroughly reactionary and obscurantist (leading Ahl-i Hadith scholars are on record as hailing the Wahhabi rulers of Saudi Arabia as representing the only 'true' Islamic regime in the world), on the question of triple talaq they adopt a somewhat progressive stance, declaring the practice as unequivocally illegal.

The Mumbai-based Maulana Mukhtar Ahmad Nadvi is a leading Indian Ahl-i Hadith scholar. In his recently published Urdu book titled 'Talaq: Kitab-o Sunnat Ki Roshni Mai Tafsili Jai'za' (' Divorce: A Detailed Study in the Light of the Qur'an and the Prophetic Practice'), he writes that the practice of triple talaq was sternly condemned by the Prophet himself. The Prophet, he says, declared divorce to be the 'most hateful' of things allowed by God. He argues that Islam pays great stress to harmonious conjugal relations, and quotes a hadith or saying of the Prophet in which Muhammad is said to have told his followers that the best among them was he who was best for, or towards, his wife. He then goes on to describe the method of divorce laid down in the Qur’an and enforced by the Prophet. In case a dispute arises between husband and wife, Nadvi writes, they should first try to solve it through dialogue. If this does not work, the Qur'an instructs them to appoint one arbiter each from the family of the husband and the wife, who can try and resolve their differences. Only when this fails should they take the drastic measure of divorce.

In the Prophet's time, Nadvi explains, divorce took the form of the husband uttering the word talaq three times, spaced over three consecutive menstrual cycles of the wife. In this period, the husband was to abstain from sexual intercourse with his wife, but was to keep her in the house and provide for her. In this way, the husband was given adequate time to seriously reconsider his decision to divorce. The first two talaqs could be revoked by the husband, but if the third talaq was pronounced during or at the end of the third menstrual cycle the divorce was considered final and irrevocable. If the husband had sexual intercourse with his wife before uttering the third talaq in the third menstrual cycle, the previous talaqs were nullified. Likewise, if he uttered the talaq at a time when his wife was menstruating it would not be considered as valid. In this regard, Nadvi relates that once a companion of the Prophet gave talaq to his wife at a time when she was in menstruation. On learning this, the Prophet ordered that he take back his wife, and did not recognise the talaq. Nadvi also writes that at the time of the Prophet if a man uttered the word talaq more than once in one sitting, it was considered as just a single talaq.
This being the method of divorce at the time Prophet, it is considered to be in accordance with his sunnat or practice, and hence is called talaq-i sunnat. Since Muslims consider the Prophetic practice as a normative model for them to follow, Nadvi says, this is the method of divorce that they should adopt. No other method of divorce, he writes, can be considered
binding as that would be a violation of the sunnat. Nadvi devotes considerable attention to the practice of triple talaq in one sitting, arguing that it has no sanction in the Qur'an and in the traditions of the Prophet. Being, in Islamic legal parlance, a bida'at or wrongful innovation, it is not part of the Prophet's sunnat, and hence, cannot be considered as sanctioned as being in accordance with the shari'ah.

In this regard, Nadvi refers to a saying of the Prophet in which he strongly condemned all forms of bida'at, suggesting that those who created innovations in the faith were accursed by God. Since the practice of triple talaq in one sitting is a bida'at, he argues that those who practise or sanction it actually do so in violation of God's will, and, hence, are condemnable in God's eyes. In fact, he stresses, the Prophet explicitly condemned the practice of triple talaq. He writes that once, when the Prophet heard that one of his companions or sahaba had sought to divorce his wife in this way, he was enraged, and sternly admonished him, saying, 'What, shall God’s book be played around with and I am present among you?’. Nadvi refers to another hadith, according to which once Rukana, a companion of the Prophet, pronounced three talaqs in one sitting but later repented. He approached the Prophet for help, and the Prophet told him that the three talaqs that he had given amounted only to a single talaq, and that, therefore, he could go back to his wife if he wanted to. To bolster his argument about the illegality of three talaqs in one sitting Nadvi further adds that not a single instance is reported of such a form of talaq being accepted by the Prophet as constituting a final, irrevocable divorce.

The talaq-i sunnat method, Nadwi writes, was followed in the Prophet's time, and this was continued under his successor and the first caliph of the Sunnis, Abu Bakr. The second Sunni caliph, 'Umar, too, followed this rule, but in the third year of his reign he is said to have modified it and to have made three talaqs in one sitting as legally binding and as constituting an irrevocable divorce. If the couple divorced in this fashion wanted to reunite they could only do so through by resorting to what is called halala: the woman would have to marry another man, this marriage would have to be consummated, the woman would have to take a divorce from her second husband and only then could she remarry her first husband. The 'ulama who continue to insist on the legality of this method of talaq, and who also sanction the practice of halala, rely essentially on this decision of 'Umar.

As a Sunni, Nadvi does not challenge 'Umar's decision directly, but in order to argue that this method of divorce has no sanction in Islam he insists that this innovation was simply 'Umar's own personal opinion or

ijtihad, which cannot be held to supersede or overrule the explicit commandments of the Qur'an and the Prophet on divorce. He argues that 'Umar intended this modification to be only a temporary measure, and simply as a means to address a novel situation that had arisen in his time when men were misusing their prerogative to divorce their wives. It was, he writes, in order to stop men from abusing their right to talaq that 'Umar decided to make three talaqs in one sitting as a final, irrevocable divorce. By doing so, he intended to warn men of the grave consequence of the break-up of their families if they misused their right to divorce. ‘Umar’s ruling was thus intended to protect women, rather than harass them, although this ruling is today being used precisely to serve the latter purpose. Nadvi insists that this constitutes a flagrant violation of Islam, and here quotes the Prophet as imploring for God's wrath on those men who misuse their right to divorce.

Nadvi opposes the view of many traditionalist scholars who claim that 'Umar's decision was unanimously agreed upon by all the sahaba or companions of the Prophet present. He insists that 'Umar's decision does not constitute an 'ijma or collective consensus of the sahaba, which is evoked as a principal source of law by the 'ulama. He cites the instances of several leading sahaba who dissented from 'Umar's decision in this regard, including, and most importantly, 'Ali, the fourth Caliph of the Sunnis and the first Shi'a Imam, ‘Abdullah ibn Abbas, Zubair ibn Awam and 'Abd ur-Rahman ibn Awf . Following them, several of their followers, too, differed with 'Umar on this issue. In fact, Nadwi writes, there has never been any 'ijma on three talaqs in one sitting as constituting a final, irrevocable divorce. Numerous 'ulama down the ages to the present-day have opposed this position, strongly
criticising those 'ulama who hold the contrary opinion for upholding what they consider as a bida'at. Nadvi writes that among those who dissented from ‘Umar’s decision of considering three talaqs in one sitting as constituting a final divorce were such leading Islamic jurisprudents such as Ahmad ibn Hanbal, founder of the Hanbali school of Sunni jurisprudence, several followers of Imam Malik and Imam Abu Hanifa, founders of the Maliki and Hanafi schools of jurisprudence respectively, the influential scripturalist reformist Ibn Taimiyah and his disciple Imam Ibn Qayyim al-Jawziya.

Having thus proved the absence of any 'ijma on 'Umar's decision, Nadvi writes that Muslims must accept the sunnat of the Prophet and the practice of Abu Bakr, rather than 'Umar's opinion, on the matter of talaq. The Prophet's sunnat, and not that of his caliphs, has
normative authority for Muslims, and if any of the caliphs departed from the Prophet's tradition, Muslims must follow the Prophet and not the caliphs in this regard. Furthermore, as the first caliph of the Sunnis, Abu Bakr had more authority than 'Umar, and so his practice in the matter of talaq, which was identical to that of the Prophet, must be followed,
instead of 'Umar's opinion. Umar’s ijtihad cannot be considered, Nadvi stresses, as constituting a permanent modification of the shari'ah which cannot be changed. The only unchangeable sources of law, he says, are the Qur'an and the genuine hadith, and both these set out the sunnat method of talaq, which, therefore, must be strictly adhered to. Since 'Umar's opinion on talaq departs from the Qur'an and the genuine hadith, it cannot be accepted as a legally binding decision. Furthermore, Nadvi writes that since it is argued by those who defend 'Umar's rule that it was intended as a punishment (ta'zir) for erring
husbands, one must raise the question as to whether this decision has proved to be adequate or suitable for the purpose. Since it is today being used largely to harass hapless wives instead of punishing oppressive husbands, it does not serve its original purpose at all, and hence must be banned, Nadvi insists.

The conservative 'ulama, Nadvi observes, depart from the sunnat of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that impinge on the rights of Muslim women. Thus, he notes, many 'ulama (and these include most Barelvis and Deobandis) insist that talaq uttered by the husband while drunk or while asleep, in a fit of anger or while under coercion, is binding. This, Nadvi insists, is completely at odds with the teachings of the Prophet. He writes that talaq given under coercion has no recognition or validity, for the Qur'an explicitly lays down that there can be 'no coercion in religion'. Just as if a person is forced to utter 'words of infidelity' (kalimat-i kufr) he is not considered to have become a disbeliever, or if a non-Muslim is forced to utter the Islamic creed of confession he is not considered as a Muslim, so, too, if a man is coerced into pronouncing talaq, it has no validity in law. Similarly, Nadvi writes, if a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses. To back his argument he refers to a Qur'anic verse which warns people not to pray while drunk, and to worship only when they know what they are saying. This implies, he says, that God does not regard a drunken man's utterances of any value. Similarly, using the same logic, Nadvi opposes the argument of those 'ulama who claim that talaq uttered in a fit of anger, when the man does not know the consequences of what he is saying, is binding.

On the question of halala, too, Nadvi stiffly opposes the Deobandi and the Barelvi ‘ulama. He writes that the practice is abominable, and goes so far as to equate it with adultery (zina). He says that it has no sanction whatsoever in Islam, quoting the Prophet as having invoked God's anger on those who engaged in the practice. He adds that there is an urgent need to promote popular awareness about halala and its seriously deleterious consequences, especially for hapless women who are sometimes subjected to this practice.

The practice of talaq-i bida'at and the associated practice of halala, Nadvi writes, are sought to be legitimised by influential sections of the 'ulama by evoking the notion of jurisprudential precedent. They claim that since the founders of the schools of Sunni jurisprudence, and several of their followers, upheld these practices, they cannot be rescinded. This, indeed, is the position taken by most Deobandi and Barelvi 'ulama in India today. Nadvi stiffly opposes this argument, arguing that the founding imams of the four schools never claimed infallibility for themselves. Indeed, he adds, they went so far as to
insist that if any of their opinions violated the Qur'an and the genuine hadith, they were to be rejected, and the latter were to be followed in their place.

Since the practice of accepting triple talaq in one sitting as constituting a final divorce and the associated practice of halala violate the Qur'an and the genuine hadith, Nadvi says, those who claim to be faithful adherents of the established schools of jurisprudence, and this includes the Deobandis and the Barelvis, must follow the position of the Qur'an and the genuine hadith in this regard if they are to be considered true followers of their imams. To refuse to do so, Nadvi asserts, is absolutely forbidden (haram). Those who continue to uphold the practice of triple talaq in one sitting and justify halala are thus, he says, 'grave sinners' (sakht gunehgar) in God's eyes. Leading ‘ulama in several Muslim countries, such as
Saudi Arabia, Qatar, Kuwait, Egypt, Sudan and Syria have outlawed triple talaq in one sitting and halala on Islamic grounds, and Nadvi insists that there is no reason why the Indian 'ulama should not do the same.

Another Indian Ahl-i Hadith scholar who has written on the vexed issue of triple talaq in one sitting is the Kuwait-based Hafiz Muhammad Ishaq Zahid. In his 'Ahl-i Hadith Aur 'Ulama-i Harimayn Ka Ittefaqi Ra'i' ('The Consensual Opinion of the Ahl-i Hadith and the 'Ulama of the Holy Cities'), Zahid makes much the same argument as Nadvi. He adds that 'Umar's opinion has no legal status since 'Umar himself later revoked it. On the question of the alleged 'ijma of the sahaba on 'Umar's ruling, he follows Nadvi in dismissing this claim, and goes so far as to label it as 'baseless propaganda'. He writes that even the conservative 'ulama who claim an 'ijma of the sahaba on 'Umar's opinion agree that prior to 'Umar there existed an ‘ijma on Abu Bakr’s opposition to triple talaq in one sitting and on his insistence on the talaq-i sunnat method. The 'ijma of the sahaba in Abu Bakr's time has
more legitimacy than the alleged 'ijma in Umar's time, says Zahid, for the Sunnis believe Abu Bakr to have been superior to 'Umar. Hence, the 'command' (hukm) of 'Umar cannot be held to overrule the 'ijma of the sahaba in Abu Bakr's time on the matter of divorce, especially since it was identical to the Prophet’s own opinion. Likewise, Zahid, adds, the fourth Caliph of the Sunnis, Hazrat 'Ali, did not accept 'Umar's ruling on triple talaq, and hence the alleged 'ijma cannot be said to have been accepted after 'Umar as well. In actual fact, says Zahid, 'Umar's decision was his own personal ijtihad, not a legal order based on the shari'ah. The ijtihad of a person is not binding on anyone else, and it has no validity if it goes against the explicit commandments of the Qur'an and the genuine hadith.

Furthermore, a person’s ijtihad cannot be regarded as permanently binding, for a rule derived from ijtihad changes with change of time or place (zaman-o makan), and lacks permanent status, unlike the Qur’an and the sunnat of the Prophet. For these reasons, Zahid writes, the ruling of 'Umar has no legal binding. Instead of following it, Muslims must follow the method of divorce laid down in the Qur'an and enjoined upon by the Prophet.

The Ahl-i Hadith are not alone in their opposition to the stance of many Deobandi and Barelvi 'ulama and the AIMLB on the question of the practice of triple talaq in one sitting. Numerous Muslim reformers have lent their voice to the demand that the practice be outlawed. Yet, blind adherence to the established schools of jurisprudence as well as deeply entrenched patriarchy continue to pose a major hurdle in coaxing the conservative ‘ulama to agree to ban the practice. As the refusal of the ALMPLB to ban outright the practice suggests, the conservative ‘ulama seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself.

http://www.islaminterfaith.org/feb2005/article1.htm "UNQUOTE"
By Aamir Mughal -
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The evil of triple divorce – an unmitigated monstrosity

Islamic Sharia Laws

M.K. Sherwani

Islam

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