One of the most widely criticised aspects of Muslim Personal Law is the talaq-e-bidat or triple talaq, which allows a man to divorce his wife by simply saying ‘talaq’ three times. This archaic custom has been recently challenged in the Supreme Court as illegal, unconstitutional and violative of Articles 14, 15, 21 and 25 of the Constitution of India.
It has been repeatedly noted by eminent scholars that this practice has no foundation in the Holy Quran. In the Quran, nikah is said to be ‘misaqan ghaliza,’ a strong bond. Thus, it follows that such a bond cannot be dissolved whimsically, without proper reason or method.
Professor Tahir Mahmood, an internationally recognised expert on Muslim Law who has formerly served as the Dean of Delhi University’s Law Faculty and Chairman of the National Commission for Minorities explains the basis of the talaq provisions in the Holy Quran: the social situation in the pre- Islamic period was that husbands would divorce their wives temporarily, because every divorce was revocable till the iddat period, which lasted for approximately three months, came to an end. They would then revoke the divorce on the last day of iddat, enjoy their wives for some time and divorce them again.
In order to combat this social evil, the Quran declared that a person can revoke his divorce twice only. This means if the husband divorces his wife a third time, the marriage is instantly dissolved, irrespective of the iddat period. The relevant Quranic verses pertaining to divorce is verse 2:229-30 which opens with Al-talaqu-marratan which means ‘divorce may be pronounced twice.’ Maulana Usmani opines that the word ‘marratan’ itself implies a gap of time between the two pronouncements of divorce. Citing an example, he explains that when a person says “I went to your house twice but you were not there” cannot mean one went to his house twice in one go but after some reasonable gap of time. Thus, the act of going had to be accomplished in two different periods of time. It has also been pointed out by ‘Usmani then that the word ‘marratan,’ wherever it occurs in the Holy Quran, implies a gap of time. It is during this period that attempts at arbitration and reconciliation have to be made. After this period, if the differences cannot be resolved, a final and irrevocable third talaq is to be pronounced, for it has been said that a woman must either be retained in honour or released in kindness.
However, the question arises that despite talaq-e-bidat having no foundation in the Holy Quran and being against the Quranic will, would it be binding in the event that it was pronounced? Here, Maulana Usmani turns to Hadith literature which is a revered source of Islamic law. Usmani quotes from Musnad Ahmad Ibn Hanbal as he narrates the story of Rukunah, who pronounced three divorces against his wife, but later regretted his decision. When the Prophet asked him how he had divorced his wife, Rukanah replied that he had pronounced three divorces in one sitting. The Prophet then told him to treat it as one divorce, and that he could take his wife back. This hadith of the Prophet, narrated by Ibn Abbas , can be found in authentic collections of Hadith literature, most notably in Awn Al Mabood Commentary of Sunan Abu Dawood. Thus it is proved by this hadith that during the time of the noble Prophet, if someone tried to invoke triple talaq, it would be considered as one pronunciation only.
In line with the view that this form of talaq is against the Quranic will, a large number of Islamic nations including Saudi Arabia, Iraq and Pakistan, have either restricted or abolished this practice. Divorce by pronouncing talaq thrice at one go is prohibited in several Islamic nations, including Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia, Pakistan and Bangladesh, points out Nafisa Hussain, a member of the National Commission for Women, who has compiled a handbook called ‘Welfare of Mulsim Women.’
In Pakistan, The Muslim Family Laws Ordinance 1961 requires that a man must, after having made a pronouncement of talaq in any form, give a notice to the Chairman of the Union Council and his wife. After the receipt of such a notice, the Chairman must constitute an Arbitration Council comprising of himself and a representative of each party in order to resolve disputes and bring about reconciliation. The contravention of this procedure is a punishable offence. Countries like Iran, Tunisia and Indonesia require that all divorces must go through a court, and hence do not recognise triple talaq at all.
It comes as an unpleasant surprise then, that in October 2015, the All India Muslim Personal Law Board (AIMPLB) rejected suggestions to outlaw this repugnant practice and its spokesperson Abdur Rahim Qureshi went as far as to say that despite it being a ‘crime’ there was ‘no scope’ for change. However, in his book Introduction to Muslim Law, Professor Tahir Mahmood writes, ‘In India, Muslim law is applied as a part of the country’s civil law, and not as a part of the Muslim religion. It does not enjoy any special status so as to be protected by the religious liberty provisions of the Indian Constitution. He further explains that Indian family law is subject to changes, amendments, alterations and deletions made by the competent authority i.e. the Parliament and Supreme Court. He also points out that an explanation in Article 25 of the Constitution of India states that freedom of religion will not preclude the State from introducing social reforms and enacting laws on subjects traditionally associated with religion. The Supreme Court has made it clear that laws relating to marriage are not a part of religion.
It is clear that this abhorrent system of divorce was never encouraged by Islam, and specifically goes against the Quranic spirit. Countries which follow Islamic laws have also severely restricted, if not completely derecognised this practice. For the past decade, Muslim women’s organisations as well as several other interested parties have been demanding that the practice of triple talaq should be abolished. Now, it is up to the Supreme Court to decide the fate of Muslim women in India, and act as the harbinger of positive reform.
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