TALAQ-ul-BIDDAT
: SHARIAH PERSPECTIVE
Introduction:
Personal
laws evolve from religious practices and custom which form a part of the legal
system. These personal laws should be in consistence with the Constitution and
most importantly the fundamental rights. The practice which is followed in the
name of religious practice should not be arbitrary, discriminate. But it should
be within the principles of natural justice. Muslim laws in India are not
codified and are subjected to varied interpretations from Shariat.[1]
Saira
Banu is in her mid-30s. Sociology postgraduate and mother of two, she is just
one of the many victims of the tyranny of triple talaq. Her story is
gut-wrenching. Saira Banu endured physical and mental agony for over 10 years.
Bad marriage, an abusive husband, forced abortions and then, last year, her
husband sent a letter to her parents' home where she was staying for almost a
year. Inscribed on that piece of paper were three words: "Talaq, Talaq,
Talaq". The practice of triple talaq is certainly not without its fair
share of controversies. However, the troubling aspect is that the so-called
triple talaq, or instant divorce, has been banned in more than 20 Muslim countries,
including our neighbors; Pakistan and Bangladesh, making it a cause for serious
concern.
We
are a nation which proudly professes to be the world’s largest democracy,
guaranteeing the protection of equal rights to all our citizens while boldly
holding the flag aloft of being a secular nation.[2]
Historical
Background:
Some
of the Sunni clerics have mentioned that the practice of triple talaq gained
recognition and was sanctioned during the reign of second Caliph Omar. The
reason for this practice to be sanctioned by Caliph Omar in certain cases was
to help women come out of a bad marriage where their husband were delaying to
give divorce by misusing the lengthy procedure provided in the law. It was for
the sake of women that this practice gained sanctity in the 7th century, which
was later, misinterpreted by the mullas who used this to suit their anti-women
and patriarchal goals. Hence the practice of triple talaq in one sitting is a
sinful form of divorce that suppresses women’s rights and violates equity or
equal justice in the society.[3]
Marriage:
The
Mohammedan jurists regard the institution of marriage as partakingboth of the
nature of ibadat or devotional acts
and muamlat or dealings among men.[4]
Divorce:
Islamic
law permits talaq when wife commits infidelity or has a bad character which
results in unhappy married life. In absence of the above reason, if husband
gives talaq, it is not considered as an appropriate talaq in the eyes of
religion. In the event that he relinquishes his wife, he draws upon himself the
divine anger, for the scourge of God, said the Prophet, lays on him who revoked
his wife impulsively.[5]
Prophet
Muhammad restrained the power of divorce and gave to the woman the right of
obtaining separation on reasonable grounds. The Prophet is reported to have
said, “If a woman be prejudiced by a marriage, let it be broken off.”[6]
“Mahmud-b
Labeed reported that the messenger of Allah was informed about a man who gave
three divorces at a time to his wife. Then he got up enraged and said: “Are you
playing with the Book of Allah who is great and glorious while I am still
amongst you? So much so that a man got up and said; shall I not kill him.”[7]
Types
of Talaq:
Talaq-e-Ahsan
and Talaq-e-Hasan come under the head of Talaq-ul-Sunnat is the talaq which
carries the approval of Prophet. Ahsan is most approved form of divorce where
the husband disown his wife by a single pronouncement in a time of tuhr
(purity, i.e., when the wife is free from her menstrual courses), amid which he
has not engaged in sexual relations with her, and then leaves her to the
observance of iddat. Hasan is approved form of talaq where the husband
successively pronounces divorce three times during the time of tuhr. In other
words it is a divorce upon divorce wherein the first two pronouncements are
revocable and in the third pronouncement talaq becomes irrevocable.
Talaq-ul-Biddat
is not the approved form of talaq as it does not consider the period of tuhr
and also to the abstention from intercourse. Triple divorce is where the
husband repudiates his wife by orally saying Talaq in one sentence thrice
within the time of tuhr.[8]
There
are certain procedures which need to be followed in order to give talaq to the
wife. Firstly, he has to make the wife aware about his intentions of giving
talaq and reason for the same as well as time to change her behavior. If her
behavior does not change, then husband can resort to the process of
conciliation by informing the elders in the family of the wife. Two arbitrators
are appointed one from the side of wife and other from the side of husband. It
is duty of the arbiters to bring settlement between the parties so that their
married life is back to normal. In spite of the efforts which are being put in
and the damage to the married life is irreparable then there is no alternative
but to separate. At this stage the husband has the right to give talaq to his
wife. The conciliation stage with the intervention of arbiters is a compulsory
condition for effecting talaq either in Ahsan or Hasan form of talaq.[9]
There
is no Quranic basis to establish that three divorces on a single occasion will
amount to an irrevocable divorce; in fact the Prophet (PBUH) despised divorce[10] and
described marriage[11] as
his Sunnat. The Quran lays down only two kinds of divorces i.e. Talaq-Ahsan and
Talaq-Hasan the same being in conformity with the dictates of Prophet (PBUH).
The above two forms are considered to be the most proper forms of pronouncing
the divorce. The third form i.e. Talaq-ul-Bidat, is considered to be the most
sinful, innovated form of divorce as it is against the letter and spirit of
Quran[12] and
was disallowed by the Prophet (PBUH) himself.[13]
According
to the Quran, a person is not supposed to divorce his wife when she is
menstruating.[14]
When a muslim divorces his wife, he has to divorce them for the period of their
iddah[15] and
wait for three courses (menstruation).[16] The
prescribed time period of iddah is about three months and in case of pregnant
women, the iddah period is till delivery.[17]
During this period, the husband can take them back if they wish to
(reconciliation).[18]
Divorce given for two times is revocable but it is not so when made for a third
time.[19]
“When you have divorced women, and they have reached their term (iddat), then
retain them on equitable terms or release them on equitable terms”[20]
The
Supreme Court in Shamim Ara v. State of U.P. and Anr,[21] has
upheld this view of Quran stating that there must be valid reasons for
divorcing someone and there must be an attempt to reconcile. This view has
further been upheld by many High Courts[22]
including the Kerela HC in Kunimohammed v. Ayishakutty.[23]
Legal
Validity:
It
is stated in the case of Mohamed Ahmed Khan v. Shah Bano[24] by
Chief Justice Chandrachud stated that talaq confers upon the husband, “the
privilege of being able to discard his wife whenever he chooses to do so for
reasons that are good, bad or indifferent; indeed for no reason at all.”
The
landmark judgment of Shamim Ara v. State of U.P.[25], the
Supreme Court observed that a valid talaq obtained should be for a reasonable
cause and further there should be attempts for reconciliation by the arbiters.
If the above two conditions are not satisfied, the talaq is not valid and
recognized. In the case of Shahzad v. Anisa Bee and others[26], the
court cited Surah-4 Verse-35.[27] While
laying out the valid form of divorce in case of termination of Muslim marriage
which is pronounced unilaterally by husband, this verse of Quran commands for
reconciliation between both the parties and if such attempt fails then this
shall be deemed as a reasonable cause for divorce.
Talaq in the light of Quran and
Sunnah: Religious Validity
The
law of divorce in Islam is quite simple and moderate. But it is also true that
the Fiqhi discussions (legal wrangling) raised in religion have not kept it in
its simple form. Rather, they have made it very harsh and severe. As a result
of this the Muslims are facing extraordinary difficulties in their social life.
In order to keep the Muslim masses connected with the social system of Islam
and to keep them obedient to the commands of the Shariat, it is necessary that,
despite all the fiqhee hairsplitting,
penetration and severity, social problems should be solved in the light of
Quran and Sunnah.
Among
the pre- Islamic Arabs, the power of divorce possessed by the husband was
unlimited. They could divorce their wives at any time for any reason or without
any reason. They could revoke their divorce as many times as they preferred.[28] It
used to cause very much trouble and hardship to the woman and she was quite
helpless.
The
reformatory step of Islam is that it put an end to this unjust and oppressive
and limitless series of divorcing. It authorized the husband to revert to his
wife up to two talaqs so that, before the disruption of the family life the
husband may have an opportunity of pondering over the consequences twice. Then
that talaq (divorce) becomes Mughallizah
(absolutely irrevocable). It means that thereafter he can neither revert to
that wife nor can he remarry her until that woman weds another man and that
another man divorces her of his own free will. This order has been enforced so
that man may not go on harass in the woman by divorcing her repeatedly as was
being done in the days of pre-Islamic ignorance.
In
the words of Ameer Ali, the Prophet had to mould the mind of an uncultured and
semi-barbaric community to a higher development.[29] The
Ahsan (appropriate/right/correct) way of divorcing as per the guidance of the
Holy Quran and the Sunnah is that he should suffice with giving only one talaq
during the period of cleanliness (non-menstrual). He must not have copulated
(sexual intercourse) with his wife. This talaq(divorce) will remain Rajaee (revocable or revertible) during
iddat (the waiting period). And that it will become Baain after the passing of
iddat. But if the man and the woman so desire, they may remarry (through a
repeated Nikaah). Those men who rush to
pronounce three talaqs at a time or in one sitting except that they exhibit
total ignorance. They basically ignore the explicit and emphatic command of the
Holy Quran. "These are the limits
imposed by Allah. Do not transgress them."[30] And,
further: "Do not treat Allah's signs
as jest."[31]
Now
the question is whether the Holy Quran has resolved that the pronouncing talaq
three times will be considered as thrice? Nowhere in the Holy Quran it is
clearly mentioned that triple talaq at a time will be considered three talaqs.
Those who think so base their argument on this verse of Holy Quran:
"Divorce is to be given two
times and then (a woman) must be retained in good manner or released
gracefully. And it is not lawful for you that you take from women anything of
what you have given them; except (in the case) when both feel that they may not
be able to keep within the limits imposed by Allah. And if you fear that they
may not be able to keep within the limits of Allah, in that case it is not a
sin for either of them if the woman pays compensation and gets herself
released. These are the limits imposed by Allah. Do not transgress them. For
whosoever are the limits imposed by Allah. Do not transgress them. For
whosoever transgresses Allah's limits; such persons are wrongdoers. So if a
husband divorces his wife (after two times) he cannot, after that, remarry her
until after she has married another husband (and he has divorced her)."[32]
They
think that the word "marrataan"
(two times) in this verse means repeating the word tataq' or to give divorce
with the specification of number. Therefore, they say that if the words
"talaq,talaq, talaq” are pronounced or "three talaqs" is uttered
then it is three talaqs. The fact, however, is that "marrataan" does not mean to repeat the word talaq but it means
to give talaq on a second time.[33]
In
Arabic language the meaning of "marrataan"
is MARRATAN BAAD MARRAH. (On another
occasion after the first time) It never means mere verbal repetition of a word.
There are such examples in the Holly Quran. For instance, at one place it is
mentioned:
Do
they not see that they are tested once or twice in every year?" At another
place "O you who believe! Let your
slaves and those (children who have not attained puberty) ask your leave at
three times (before they came into your presence).[34]
Following
these verses, the details of the three relevant times have been given.
Obviously, here, "thalaat marraat"
(in three times) means three different times (occasions) and not a coincidence
of three times in one occasion. However, it was said in Durrul-al-Mukhtar that if pronounce talaq or write it in any
particular form, it will be considered as the talaq.[35] It
was further described that mere pronouncement of words is enough for the
revocation of divorce not the intention.[36]
Similarly,
if somebody says these words, "I recite Subhanallah for thirty-three
times" it will be considered only one tasbeeh and not 33. Thirdly, there
is the example of four swearing (oaths), which has been commanded in the matter
of lian (cursing the lier when husband blames his wife for adultery). If
someone, instead of taking oaths four times, says " I say this on four
oaths” then it will be regarded as only one oath, not four.[37]
Therefore, Imarn Raazee writes: "Give the talaq marrataan, that is, give
talaq at two times". [38] It
has been ordained in Surah Talaq that whenever a talaq is given it must be
given for an iddat (period) "O
Prophet! When you (people) divorce (give talaq) you wives, divorce them for
their iddat(prescribed time). And reckon the iddat."[39]
Meaning thereby, the talaq should be given at
such a time from which the iddat can be counted. A man who gives three talaqs
at a time has no regard for iddat period. Because, the iddat began from the
moment he gave the first pronouncement of talaq but this iddat period is
disregarded for the second and the third talaq. It is necessary to consider
iddat for every talaq. "When you
have divorced women, and they have reached their term, (iddat), then retain
them on equitable terms or release them on equitable terms."[40] This
verse makes it clear that when the term of iddat is about to come to its end
the wife can be retained in a nice way. It means that the husband can revert to
her before the end of iddat. If a Nass (Divine order either in Quran or in
Hadith) is available in this respect then there is no problem but if there is
no such Nass text then it only means that the man has a right to revert to his
wife before the end of the iddat of the third talaq. In short, the applicability
(effectiveness) of three talaqs (irrevocable) by the utterance of triple talaq
(at one sitting) is not proved by any text of the holy Quran, because, nowhere
in the Quran it is specifically mentioned that triple talaq at a time will have
the effect of final divorce.
Does the Hadeeth support the triple
talaq?
ln
Sahih Bukhari there is a hadith of Hazrat Ayesha (R.A.) "The wife of Rifaah Qurzi came to the Holy
Prophet (sallallaahu alaihi wasallam) and said: "O Messenger of God!
Rifaah has awarded to me Talaq e Battah (cutting off divorce). Then I married
Abdur Rehman bin Zubair Qurzi but he is unfit for matrimonial. The Holy Prophet
said: Perhaps you want to go back to Rafaah. But no. It cannot be, unless he
(your second husband) tastes you and you taste him."[41] In
this hadeeth there is a mention of Talaq e Battah the (cutter talaq). But it is
not clear that the husband had given three talaqs at one time. Of course, the hadith
of Sahih Muslim makes the kind of that talaq specific. Its wordings are,
"He gave the last of the three talaqs". (It means the final of the
three divorces, which had remained, was also given.)[42] In
this tradition, there is no specific mention of three talaqs in one sitting.
How then can it be proper to argue the application or effectiveness of it?
Therefore,
Allamah lbn e Hajar has written in'Fath ul bari': "It is not correct
to base an argument in favour of triple talaq on this hadeeth'.[43] hadith
which is of lbn e Abbas (R. A.) and which is reported in Sahih Muslim and is
also very well known: "lbn e Abbas says. In the time of the Holy Prophet
and during the time of Abu Bakr and
also duringthe initial two years of Umar's caliphate, triple talaqs were considered
as one. But Umar said: people have begun
to make haste in a matter in which they were given an opportunity to think. So why
should we not make it applicable. So he applied it on them”.
Different
causes have been given for the decision made by Hazrat Umar. Allamah lbne Qaiyyim says: Umar did not
make any alteration in the sharaee position of the triple talaq at a time.
Rather, he had made them effective by way of punishment. And for punishment
ijtihaadaats (religious judicial diligence) of caliph Umar are well known, for
example, the burning down of wine shops, awarding a punishment of 80 lashes to
drunkards and to extradite them etc. When the sahabas saw that caliph Umar is
enforcing his decisions in the common interest of the community they also agreed
with him in such matters. This hadith, as noted in Sunan e Abi Daawood, contains the words. “Whenever a man gave three talaqs to his wife before copulating
(Khalwat) with her it was being regarded as only one talaq". But Imam
Navavi writes that the narration (rivayat) of Abu Dawood is weak (dhaeef).[44] In
view of all these things it is not correct to take this hadeeth as a proof of
the effectiveness of triple talaq. The fifth hadeeth is that of Abdullah bin
Umar. It is, as noted in Saheehain: "lbne
Umar relates that in the time of the Holy Prophet he had given a talaq to his
wife when she was in her period (of menstruation) Umar inquired about it from
the holy prophet who replied that: tell him to revert to his wife and then
leave her in that state until she becomes clean. Then when she, once again,
becomes clean after her next period he may either retain her or divorce her
before copulation. This is the period of iddat about which Allah has ordained
concerning talaq to women." This is a sahih (correct) hadith. But
there is no mention of three talaqs in it anywhere. When a clear and authentic
hadith is not available, it is enough to suffice with the words of the holy
Quran. Unclear and unauthentic hadiths cannot prove the effectiveness of three
talaqs at a time.
The
author of the famous Egyptian book "Kitab
ul Figh ala mazahibil Arbaah" writes: "But the fact is that the
Muslim consensus over this issue is never proved. Many Muslim have disagreed
with it. "In short, sensible is the
word of those people who say that triple talaq in one sitting has the effect of
one talaq because, it was so in the time of the Prophet and during the
caliphate of the great caliph. Abu bakr also during the first two years of the
Farooqui caliphate. Thereafter the ijtihad done by Umer was disputed by others.
So the taqleed (following) of the disputers (those who disagreed) too is as
permissible as that of caliph Umer. God Almighty has never burdened us by
ordering us to dig deep to find out certainty in secondary things because it is
not practical to do so."[45]
Allamah
lbn e Taimiyah writes: - "If
somebody gives three talaqs in one wording or in three wordings in one Tuhr
(wife's period of cleanliness) then it is haraam (unlawful) to do so according
to the opinion of the majority of ulema. But the question of its being
effective is under dispute. One opinion is that three talaqs will be operative
and another is that it will amount to only one talaq. And the latter is correct
as it is supported by the Quran and Sunnah as has been described in detail
earlier elsewhere."[46]
Allamah
lbn e Qaiyim writes: "Allah has
ordained the giving of one talaq after another. To give combined three talaqs
(on one occasion) is not really regular".[47]
Imarn Razee says: "Many religious
scholars have said that if a man has given two or three talaqs, only one will
be operative and this say is nearer to reason because, the prohibition or
inadmissibility of anything shows that there is a lot of harm in that
prohibited thing. So the opinion which considers the triple talaq operative or
effective is like admitting the harmful thing (corruption) which is not
allowed. Therefore, it is necessary to decide that such triple talaq is
inoperative and ineffective."[48]
Though
the four imams are of the opinion that triple talaq in one sitting is
effective, a group of ulema believes that it gives effect to only one talaq.
For example lbn e Abbas, lkramah Tawoos,lbn e Ishaq, Imam Razee, Imarn lbn e
Taimiyyah Allamah lbn e Qaiyim, Dawood Zahiri and others. "There is nothing in the religious arguments
contained in Quran, Sunnah, ljmaa and Qiyas which gives the effect of three
talaqs by a man who had given triple talaq in a sitting.[49]
The
solution of the problem of triple talaq in one sitting is that, together with
propagating religious understanding and taqwa (God-fearing) among the Muslim
masses they should be taught the correct and regular way of giving talaq They
should be guided that if anybody does intent to give talaq to his wife he
should suffice by giving only one raja (revocable) talaq and that too in a period
of his wife cleanliness (tuhr) in which there was no sexual intercourse. Thereafter,
if he does not want to revert to her, he must allow the period of iddat to
pass. After the passing of this iddat there will still remain an opportunity of
second nikah (remarriage with the same spouse) and hence there will be no need
of repentance. On the one hand, Muslim masses should be made aware of this
legality of Shariah and on the other, the ulema should issue the fatwa that
three combined talaqs constitute only one talaq.
Rules
in Contemporary countries:
1.
Pakistan:
It
was abolished after recommendations by a 7-member commission on marriage and
family laws in 1956 and framed the legislation of marriage and divorce similar
to Egypt, the husband must pronounce Talaq in three successive menstrual
cycles.
Simultaneously
three times pronounce of Talaqs will be counted as one. Then, man and woman
have the right to ask for separation when a dissension arises, then, investigation
is conducted by a court into the reason for dissension. In the end, Appointment
of arbitrator by a court for reconciliation and court eventually decides the
outcome.[50]
2.
Algeria(Islam is the official religion): “Divorce cannot be
established except by a judgment of the court preceded by an attempt at
reconciliation for a period not exceeding three months.”[51]
3.
Egypt: (a secular state): “Article 1. A Talaq pronounced
under the effect of intoxication or compulsion shall not be effective.
Article
2. A conditional Talaq which is not meant to take effect immediately shall have
no effect if it is used as an inducement to do some act or to abstain from it.
Article
3. A Talaq accompanied by a number, expressly or impliedly, shall not be
effective except as a single revocable divorce.
Article
4. Symbolic expressions of talaq, i.e., words which may or may not bear the
implication of a divorce, shall not affect a divorce unless the husband
actually intended it.”[52]
4.
United Arab Emirates(Islam is the official religion): If a
husband divorces his wife after consummation of a valid marriage by his
unilateral action and without any move for divorce from her side, she will be
entitled to compensation besides maintenance for Iddat.
“The
amount of compensation will be decided with due regard to the means of the
husband and the hardship suffered by the wife, but it shall not exceed the
amount of one year’s maintenance payable in law to a woman of her status. (2)
The Kazi may decree the compensation, to be paid as a lump sum or in installments,
according to the husband’s ability to pay.”[53]
5.
Bangladesh(Islam is the official religion): Ordinance VIII of
1961 amended in Bangladesh by Ordinance 114 of 1985: “Section 7. (1) Any man
who wishes to divorce his wife shall, as soon as may be after the pronouncement
of Talaq in any form whatsoever, give the Chairman a notice in writing of his
having done so, and shall supply a copy thereof to the wife.
(2)
Whoever contravenes the provision of sub-section (1) shall be punishable with
simple imprisonment for a term which may extend to one year, or with fine which
may extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka)
“(3)
Save as provided in sub-section (5), a Talaq unless revoked earlier, expressly
or otherwise, shall not be effective until the expiration of ninety days from
the day on which notice under subsection (1) is delivered to the Chairman.
“(4)
Within thirty days of the receipt of notice under sub-section (1) the Chairman
shall constitute an Arbitration Council for the purpose of bringing about
reconciliation between the parties, and the Arbitration council shall take all
steps necessary to bring about such reconciliation.
“(5)
If the wife be pregnant at the time Talaq is pronounced, Talaq shall not be
effective until the period mentioned in sub-section (3) or of pregnancy,
whichever are later, ends.
“(6)
Nothing shall debar a wife whose marriage has been terminated by Talaq
effective under this section from re-marrying the same husband without any
intervening marriage with a third person, unless such termination is for the
third time so effective.”[54]
6. Tunisia: As
per Tunisian Code of Personal Status 1956, it enshrine that the institution of
the marriage comes under the ambit of state and judiciary which cannot allow
husband unilaterally to verbal divorce his wife without explanation of reason.
7. Indonesia: Every
divorce can only be executed by a court decision. An agreement to divorce
between the husband and wife will not be constituted as a divorce, only a court
decision may constitute a divorce. It is regulated under Law No. 1 of 1974
concerning Marriage (“Marriage Law”) which also further regulated under
Government Regulation No. 9 of 1975 concerning The Implementation of Law No. 1
of 1974 concerning Marriage (“Marriage Regulation”).
8. Iraq: It
was the first Arab country to replace Sharia court from the government-run
personal status court.[55]
3
Pronouncement to be considered as 1:
The
Delhi High Court considered different forms of Talaq in Masroor Ahmed Vs State
(NCT of Delhi) and Anr.[56] It
took the views of Sunni schools which were considered that triple talaq which
is pronounced at one go is not regarded as three talaqs but only as one. The
court took the notice of harsh abruptness of the practice of triple talaq which
affects the divorced women as there is no chance left for reconciliation. The
court observed that it is a development which may have filled a need at a
specific purpose of time in history but it is found such a move would not be
contrary to any essential precept of Islam or the Quran or any decision of the
Prophet Muhammad. The court held that triple talaq will be regarded as one
revocable talaq.
The
judiciary has interpreted the verse of Quran and also taken note of the views
of different schools of Islam while deciding the cases with respect to triple
talaq. The above observation of courts indicate on how the Muslim community
needs to be educated about the correct procedure of divorce and pronouncing
talaq in one sitting is oppressive against women.
Suggestion
on Legislation and Punishment:
It is also reported that Hazrat Umar used to punish
people who pronounced three divorces at the same time. This also supports the
view that he wanted to discourage people from this course of action.[57]
The Muslim Board also placed on record resolutions
adopted by it at a meeting held on April 14, 15 and 16, 2016. The “resolution
regarding divorce” dated April 16, 2016 said “the stand of Shariat is clear
about divorce that the pronouncement of divorce without any reason and that
three divorces in one go are not the correct methods of pronouncement of
divorce. Such a practice is strongly condemned by the Shariat.”
The Board will, therefore, start a “grand public
movement for desisting the people from pronouncing divorce without any reason
and that in case of necessity only one divorce should be resorted to and in any
case three divorces in one go should not be resorted to. Every effort should be
made to convey this message to all the segments of Muslims especially to the
poor population and the help of Imams and orators of the mosques should be
called for”, it added.
The meeting also decided that “those who resort to
triple divorce in one go leading to the creation of problems thereafter should
be boycotted by the Muslims. This social boycott will be much helpful in
decreasing the incidents of divorce”.[58]
The then Chief Justice of India J S Khehar and Justice
Abdul Nazeer had refused to strike down the practise of triple talaq. They had
said that triple talaq is a fundamental right and hence cannot be struck down.
Instead they directed the centre to come up with a law within six months. The
judges who dissented and struck down triple talaq were Justices Kurian Joseph,
R F Nariman and U U Lalit.[59]
The Muslim Board in their recent guidelines has clearly
stated that punishment should be given to the wrongdoer and if the Parliament
passes the law which validates talaq-e-biddat, then strict punishments should
also be there in the Act like the one we have in Bangladesh.[60]
Conclusion:
Thus,
Triple Talaq is unislamic, unconstitutional, negated by highly regarded Islamic
scholars and also is invalidated by many muslim-countries. The Parliament
should pass an appropriate law regarding it and the Muslim Board should come up
with working ideas of educating the masses.
Also,
the best solution to remove the menace of triple divorce under the Hanafi
School is to order the incorporation of an explicit condition in the Nikahnama
that there shall be no instant triple divorce and the wife too will have a
right to divorce.[61]
Nehal
Ahmad Nadwi*
·
The author is an Aalim from Darul Uloom
Nadwatul Ulama, Lucknow (Bachelor in Islamic Sciences and Jurisprudence) and is
currently pursuing B.A.LL.B (Hons.) 3rd year from Faculty of Law, Aligarh
Muslim University
& Faiz Azim is a student of B.A.LL.B (hons) 3rd year at Faculty of Law, Aligarh Muslim University
[1]
Radica
Belapurkar & Sagarika Ramesh, "Triple Talaq: Predomination over Muslim
Women" 3 JCIL (Jan 2017)
[4]
Abdur Rahim: The Principles of Mohammadan Jurisprudence, Lahore Edn. 1958, p.
327
[6]
Aqil Ahmad, Mohammedan Law 163
(Central Law Agency, Allahabad, 26th edn., 2016)
[7]
Mishkat-ul-Masabih: An English Translation and Commentary by Al Maulana Fazlul Karim
p. 693 Islamic Book Service, New Delhi
[10]
[Abu
Dawud 9: 2173] - Narrated by Abdullah ibn Umar “Allah’s Messenger (PBUH) said:
Divorce is most detestable in the sight of God; abstain from it”;
[11] Tahir Mahmood, Muslim
Law of India (LexisNexis-Butterworths, New Delhi, 3rd ed., 2002) at p. 48.
[12]
Alamgir
Muhammad Serajuddin, Shari’a Law and Society: Tradition and Change in the
Indian Sub-continent (Dhaka: Asiatic Society, Bangladesh, 1999) at p. 201.
[13]
Asghar Ali Engineer, Islam,
women and gender justice (Gyan Publishing House, 1st ed., 2001) at p. 134-135.
[14]
[Surah
al-Baqarah 2:222]; See also [Sahih-Bukhari 68:1]
[21]
(2002) 7
SCC 513; cites with approval: Sri Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1
GLR 358; Rukia Khatun v. Abdul Khalique Laskar (1981) 1 Gau. L.R. 375;
[22]
Riaz Fatma v. Mohammed
Sharif I (2007) DMC 26; 135 (2006) DLT 205; Ummer Farooque v. Naseema 2005 (4)
KLT 565; Nur Ali (Md) v. Thambal Sana Bibi 2007 (1) GLT 508
[25]
2002
(7) SCC 518. 14 (2006) 1 MP LJ 555
[26]
(2006) 1MP LJ 555
[27]
Al Quran[Chapter 4, Verse
35], According to this verse, if you fear a breach of marriage between a man
and his wife, appoint one arbiter from his family and another from hers; if
they wish to reconcile, Allah will create a way of reconciliation between them.
Allah is the Knowledgeable, Aware.
[28]
Ibrahim Abdel Hamid, “Dissolution of Marriage” Islamic Quarterly, (1956)3 at p. 166.
[29]
Ameer Ali, The Spirit of Islam, London, 1995 at p. 243
[30]
Surah A baqarah: 229
[31]Al
Baqarah: 231
[32](Al
Baqarah:229-30)
[33]
Zaad ul Maad' by Allamah lbne Qaiyim, Vol: 4, p.59.
[34]
"Surah Noor, Verse: 58
[35]
Al-Durrul-Al-Mukhtaar ma Al-Raddel-AlMukhtaar, chap. Kitabul- Al-Talaq, p.574,
vol.2
[36]
Al-Mabsoot Lil-Alsarkhasi, p.122, vol.6, pub. Egypt (1324.h)
[37]Allama
Ibn-e-Qayyim, Zaad-ul-Ma’ad, vol. 4,
p.59
[38]
(At Tafseer ul Kabeer, Vol: 2, p.261.)
[39]SurahTalaq,
Verse: 1
[40]Surah
Baqarah: 231
[41]Bukhari,
Kitab ut Talaq
[42]Muslim
Kitab ut Talaq
[43]'Fath
ul Bari' Vol: 7, p.386)
[44]Sharh
e Saheeh Muslim lin navavi, vol: 1, p.478
[45]Kitab
ul Fiqh alal Mazahibil Arbaah, Vol: 4. P 343-344
[46]Majmooah
e Fataawaa e lbn e Taimiyah, Vol: 2, p.71
[47]Igathat
ul Lahfan Vol: 1,p.283
[48]AtTafseer
ul Kabeer, Vol: 2, p.260
[49]
Mejmoo a Fatawa lbn taimiyyah, Vol; 33, p.92
[50]
Muslim Countries
where Triple Talaq is banned, available at, http://www.jagranjosh.com/general-knowledge/muslim-countries-where-triple-talaq-is-banned-1490788669-1 (modified at
22-AUG-2017 11:15)
[51]
Law 84-11 of 1984 as amended in 2005
[52]
Law 25 of 1929 as amended
by law 100 of 1985
[54] Pakistan, Egypt
among 19 countries that have abolished triple talaq, available at, http://indianexpress.com/article/india/pakistan-egypt-among-19-countries-that-have-abolished-triple-talaq-supreme-court-verdict-4808780/
( Published: August 22, 2017 8:05 pm)
[55] Muslim Countries where Triple
Talaq is banned, available at, http://www.jagranjosh.com/general-knowledge/muslim-countries-where-triple-talaq-is-banned-1490788669-1 (modified at 22-AUG-2017 11:15)
[57]
opcit, Aqil Ahmad, 175
[58]
Muslim Board calls for social boycott of those who
resort to triple talaq, available at, http://indianexpress.com/article/india/muslim-board-aimplb-calls-for-social-boycott-of-those-who-resort-to-triple-talaq-4668986/(Published at: May 23, 2017 5:04 am)
[59] List of countries where triple talaq is banned,
Available at: https://www.oneindia.com/india/list-of-countries-where-triple-talaq-is-banned-2527065.html (modified on: Tuesday, August 22, 2017, 14:29 [IST])
[60]
Ordinance
VIII of 1961 amended in Bangladesh by Ordinance 114 of 1985: “Section 7. (1)
Any man who wishes to divorce his wife shall, as soon as may be after the
pronouncement of Talaq in any form whatsoever, give the Chairman a notice in
writing of his having done so, and shall supply a copy thereof to the wife. (2)
Whoever contravenes the provision of sub-section (1) shall be punishable with simple
imprisonment for a term which may extend to one year, or with fine which may
extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka)
[61]
Law, Morality, Triple Talaq available at, http://indianexpress.com/article/opinion/coloumns/law-morality-triple-talaq-muslim-islam-4743272/
(updated on: 10th July,2017)
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ReplyDeleteA beautiful compilation.
ReplyDeleteThe concluding suggestion from you, for the instant triple talaq is appreciated, being a bachelor in islamic jurisprudence.