By Waris Mazhari
28 July 2016
The issue of triple Talaq in one sitting
has once again become a subject of heated discussion. Many Sunni Muslims continue to oppose the
argument that uttering the word Talaq in one sitting does not and cannot
dissolve a Muslim marriage. This is because triple Talaq in one sitting as
constituting an irrevocable divorce has been the position of many (though not
all), of the scholars affiliated with the four major schools of Sunni
jurisprudence for centuries. This makes those who adhere to one or other of
these schools less receptive to the idea of reforming this practice. The fact
of the matter, however, is that today the times demand that the practice be
reformed. The world is bound to change naturally with the passage of time, and
this requires that every existing religious and social system be receptive to
this natural phenomenon always.
Some Muslims wrongly believe that any rule
whose origin is from outside the four schools of Sunni jurisprudence is
prohibited, and that is why they oppose the argument for making three Talaqs in
one sitting to be just one, not three. However, this concept of theirs has no
authentic foundation in Islamic jurisprudence.
In Sunni jurisprudential history, we find
many instances of various practices which earlier were followed by others who
were treated as innovators but which later on, due to changes in political and
social conditions were favourably adopted by the Sunni Ulema or scholars of
Islamic jurisprudence. It is hoped that the pressure of circumstance would
similarly lead the Ulema of today to accept suitable reforms in the law of
divorce, too. Contrary to what some people might think, the Islamic
jurisprudential framework has adequate scope for reform in the divorce law. In
principle, the Ulema are of the view that Fatawa or opinions on issues that are
based on human reasoning and, therefore, are capable of being subject to a new
interpretation (mujtahadfih), can be changed with the changing conditions of
time and place, if necessary. Hence, one could argue, because of the changed
conditions of today, the divorce law should also be suitably changed. Besides,
there have been a number of Islamic scholars and jurists who were of the view
that triple Talaq in one sitting must be
regarded as just one Talaq, not three, and hence as not constituting an
irrevocable divorce. This means that the popular view, that because the four
schools of Sunni jurisprudence claim that triple Talaq in one sitting dissolves
a Muslim marriage, even a slight deviation from this stance is tantamount to
deviation from Islam, is just not true.
There have always been a considerable
number of Muslim scholars and jurists, since the period of the Companions of
the Prophet Muhammad until today, who have insisted on the other view, that if
a Muslim husband utters the word Talaq three times in one sitting, it
constitutes one Talaq. According to Ibn ul-Qayyim (d.1350), the famous Muslim
jurist and theologian, some noted Companions of the Prophet, such as Ali (the
fourth Caliph of the Sunni Muslims), Abdullah bin Masood, Abdullah bin Abbas,
Zubair bin Awwam, and Abdur Rahman bin Awf, viewed the utterance of the word Talaq
in one sitting as one, not three, and, thus, as not resulting in an irrevocable
divorce (Al-Talaq Ul-Mughallaza). Ibn ul-Qayyim writes that some of the
followers and disciples of Abu Hanifa, putative founder of the Hanafi school of
jurisprudence (with which most Indian Sunnis claim affiliation), issued rulings
in accordance with this view. There is also a tradition that Muhammad bin Muqatil
al-Razi, a disciple of Muhammad ibn Hasan Shaibani, who was himself a
disciple of Abu Hanifa, said that once Imam Abu Hanifa, too, supported this
view. Imam Nakhaee, teacher and mentor of Hammad bin Abu Sulaiman, who, in
turn, was the teacher and mentor of Abu Hanifa, also subscribed to this view.
Among modern-day Islamic scholars who have supported this view are well-known
figures such as Rashid Rida, Muhammad Shaltut, and Yusuf al-Qaradawi, among others.
This is also the view of some Muslim sects, such as the Ahl-e Hadith and
‘Twelver’ Shias of the Jafari School.
When formulating the law about divorce, it
appears that the Quran tends to put a restraint on quick divorce since it clearly
suggests that ‘A divorce is only permissible twice; after that, the parties
should either hold together on equitable terms, or separate with
kindness.’(2:229) According to this verse, there must be room for retaining the
wife after uttering the word Talaq, which would not be possible if triple talaq
in one sitting were to be considered an irrevocable divorce, after which the
man cannot take his divorced wife back. It seems illogical and unnatural that a
marital relationship of, say, thirty years breaks off within thirty seconds,
without leaving a chance of reconsideration. The Quran (4:22) refers to the
agreement which a husband and a wife pledge together as a ‘strong covenant’,
and, obviously, that cannot be so vulnerable and easily broken by a one-sided
decision taken in a state of anger or depression.
Another important point to consider is that
according to all Islamic scholars, uttering Talaq thrice in one sitting and
taking it to mean a final divorce is an innovation (Bid’ah), and innovation is
condemnable, as is clearly mentioned in the Hadith, reports attributed to the
Prophet. This being the case, how can an innovation be enforced and made a rule
in the matter of divorce?
Those who claim that three Talaqs in one
sitting count only as one, and not three, and so does not result in the end of
a Muslim marriage also infer their opinion from a Hadith recorded in the Sahih
Muslim, a collection of Hadith reports widely respected among Sunni Muslims.
According to this report, Abdullah bin Abbas, the famous Companion of the
Prophet who is called ‘leader of the interpreters of the Quran (Rais
Ul-Mufassirin), said that triple Talaq in one sitting was considered as one
in the period of the Prophet, the period of the first Caliph Abu Bakr, and
during the early years of the second Caliph Umar (Sahih Muslim, 1482).
Another tradition relates that a companion
of the Prophet, Rukanah bin Yazid, divorced his wife thrice in one sitting. He
then regretted what he had done and approached the Prophet. The Prophet asked
him how he had divorce his wife. Rukanah answered that he had done so by
pronouncing the word Talaq thrice. The Prophet asked him if he had pronounced
it in a single sitting, to which he replied in the affirmative. The Prophet
then said that it had the effect of one divorce, and that if he wanted to take
his wife back he could. And so, Rukanah took her back (Musnad Ahmad: 2387).
Several early Muslim scholars have
extensively written on the subject of triple Talaq in one sitting being one Talaq,
not three, and, therefore, not an irrevocable divorce. One of these was the
noted Ibn ul-Qayyim, who devoted almost 30 pages of his book Zaad al-Ma‘ad
(‘Provision of the Hereafter’) to the issue. He says that Islam facilitates
ease and simplicity, and that the Shariah urges that the utterance of the word Talaq
thrice in one sitting must be considered as one so that there should remain a
chance for a second thought and lives not be ruined by a quick decision. Imam
Razi (d.1209), in his renowned commentary on the Quran, Mafatih ul-Ghaib
(‘Keys to the Unknown’), also known as al-Tafsir ul-Kabir, suggests that
holding triple Talaq in one sitting to be three, and thus constituting
irrevocable divorce, is an attempt to generate an evil that is not legitimate.
These examples are of just some of the
several Islamic scholars down the centuries who have insisted that three Talaqs
in one sitting count as one Talaq, not three, and that this does not constitute
a final and irrevocable divorce.
Defenders of triple Talaq in one sitting
often cite the enforcement of this practice by Umar, the second Caliph. In
response, it can be said that this was intended for the welfare of the society
in that particular socio-historical context. Umar thought it an appropriate
ruling as men had made Talaq a joke by taking back their wives even after
uttering the word Talaq several times, because of which their wives had to
suffer, being stuck in a vicious circle and not being able to gain their
freedom. Misusing the provision that allowed men to utter the word Talaq and
then take back their wives, men had become reckless and irresponsible, and that
is why he decided to consider triple Talaq in one sitting to constitute an
irrevocable divorce. It should be noted that there are some other instances of
such exceptional cases in which Umar issued decrees in a manner that departed
from tradition, functioning with the exceptional right in his capacity of head
of the administration.
We are living in a world where many issues
resulting from changing socio-political circumstances pose great challenges for
the Ulema. Their solutions simply cannot be sought within the limits of the
four walls erected by the imams of the four schools. There is a dire need to
seek solutions directly from the Quran and the practice of the Prophet for
these issues. Also, if the traditions of scholars of Islamic jurisprudence
other than those affiliated to the four schools furnish a meaningful answer to
a problem, they could be accepted for the sake of avoiding difficulty and harm.
This applies to the issue of divorce, as possibly to several others.
The issue of triple Talaq is a very
sensitive one. On the one hand are traditionalist Muslim scholars who wrongly regard
even the slightest deviation from the opinion of their school as unlawful. On
the other hand are the thousands upon thousands of Muslim women whose lives are
being destroyed under the evil effects of a particular method of divorce. It is
incumbent upon Muslims to find a balanced solution to this in accordance with
the teachings and spirit of Islam and thereby protect Muslim societies from
corruption and confusion.
Muslims must take initiatives for the
reform of the practice of Talaq. This reform needs also to happen at the level
of laws, too. Many Muslim-majority countries have reformed their laws in this
regard, considering three Talaqs in one sitting to be just one. The Indian
Muslims must come forth as well to support this sort of reform. They must
realise that it is essential for their own welfare.
Waris Mazhari is a graduate of the Dar ul-Uloom Deoband. He did his Ph.D
from the Department of Islamic Studies, Jamia Millia Islamia, New Delhi, and is
presently teaching in the same Department.