With the government set to submit in the Supreme Court its position on ‘Triple Talaq’, which according to sources, matches its political interest but is contradictory to the views of the majority in the All India Muslim Personal law Board (AIMPLB), a stand-off between the two looks imminent.
The difference of opinion on ‘Triple Talaq’ is not new. It is as old as the Islamic history. It was point of a debate on few occasions during the lifetime of Prophet Muhammad (peace be upon him) and took a different turn, though not controversial and divisive as some of the people might like to portray, during the tenure of Caliph Omar (RA). Ever since then, the matter has been at the center stage of debate among the Companions (RA), and Muslim scholars and jurists, with some adhering to one view and others to the counter view.
In Indi too the debate on ‘Triple Talaq’ is raised occasionally and by different people – though most of the time it is raised not to protect women’s rights as it is claimed but to score political goals. Women activists, especially Bhartiya Muslim Mahila Andolan (BMMA), are raising this issue since last few years. Of late their efforts were limited to dharnas and andolans without any solution as they lacked the support from the erstwhile government. Realizing that their stand is supported by the present government, the women activists have intensified their efforts and the matter is now in the Supreme Court.
The unfortunate and distressing part of the entire ‘Triple Talaq’ debate in India is that the Muslim Personal Law Board (AIMPLB) and Women Activists both are ignoring, rather hiding, the important facts related to the issue, refusing to accept or ponder on the fact that making them public can pave the way for an amicable, and acceptable to all those involved, solution of the issue.
What is Talaq?
Islam gives utmost importance to marriage and marital relation and has given nod to Talaq only in worst situation that too after a long and lengthy process of reconciliation. Moreover, Islam is not alone in granting to its followers permission to divorce. Divorce is age-old practice, but Islam was first to lay down strict conditions for divorce – the conditions aimed at protecting women. Simultaneously, Islam has also given women the right to separate from her husband if one wishes so. Khula – as it is called as was introduced for the first time by Islam.
Talaq in Holy Quran
- The Quran says in Surah 02 (Al-Baqarah); Ayat 229:
“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful fir you (men) to take her back (from your wives) any of your Mahr (bridal-money given by the husband to his wife at the time of marriage), except when both the parties fear that they would be unable to keep the limits ordained by Allah. Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the Zalimoon (wrong-doers).”
- The Quran says in Surah 02 (Al-Baqarah); Ayat 228:
“And divorced women shall wait (as regards their marriage) for three menstrual periods, and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. And they (women) have rights (over their husbands as regards living expenses, etc.) similar (to those of their husbands) over them (as regards obedience and respect, etc.) to what is reasonable, but men have a degree (of responsibility) over them. And Allah is All-Mighty, All-Wise.”
- The Quran further says in Surah 65 (At-Talaq); Ayat 01:
“O Prophet! When you divorce women, divorce them at their prescribed periods (Iddah) and count (accurately) their prescribed periods (Iddah). And fear Allah your Lord (O Muslims). And turn them not out of their (husband’s) homes, nor shall they (themselves) leave, except in case they are guilty of some open lewdness. And those are limits set by Allah. And anyone who transgresses the set limits of Allah, then indeed he has wronged himself. You (the one who divorce his wife) know not it may be that Allah will afterward bring some new thing to pass (i.e. to return her back to you if that was the first or second divorce).
It is clear from the above verse that during the waiting period (Iddah), the wife must not be forced to leave her husband's home nor should she leave it herself unless she has committed indecency of some sort, in which case it is permitted for her to leave the house.
- Muslim scholars and jurists also agree on the need to reconciliation during the waiting period (Iddah), with the help of mediators from each family. If the couple breaks the waiting period (Iddah) by engaging in sexual intercourse, they are deemed to have been reconciled and the divorce is voided.
This is said in the Quran in the following Ayats:
"And if you fear a breach between the two, then appoint (two) arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knower, Well-Acquainted with all things" — Quran, Surah 4 (An-Nisa), Ayat 35
Further protecting the rights of women, Quran says in Surah 2 (Al-Baqarah), Ayat 231:
"And when you have divorced women and they are about to fulfill the term of their prescribed period (Iddah), either take them back on reasonable basis or set them free on reasonable basis. But do not take them back to hurt them, and to treat them unjustly and whoever does that, then he has wronged himself. And treat not the Verses (Laws) of Allah as a jest, but remember Allah’s Favours on you (i.e. Islam), and that which He has sent down to you of the Book (i.e. the Quran) and Al-Hikmah (the Prophet’s Sunnah – legal ways – Islamic jurisprudence) whereby He instructs you. And fear Allah, and know that Allah is All-Knower of everything ."
Talaq in Hadith
Like the Holy Quran, narrations and sayings of Prophet Muhammad (peace be upon him) are there in plenty that throw light on the method of divorce, and what could be valid and what could be not.
- One of the famous and authentic Hadith (saying of the prophet – peace be upon him) is this:
Ibn 'Abbas (may Allah be pleased with him) reports that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (peace and blessings be upon him) and that of Abu Bakr (may Allah be pleased with him) and two years of the caliphate of 'Umar ibn Al-Khattab (may Allah be pleased with him) was treated as once. But 'Umar ibn Al-Khattab (may Allah be pleased with him) said: "Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them (i.e. regard the divorce pronounced three times in succession as irrevocable divorce, it would have deterred them from doing so). So he regarded it as such. (Sahih Muslim)
- The other instance reported during the lifetime of Prophet Muhammad (peace be upon him) is this:
Muhammad bin Ishaq Sahib AL MAGHAZI and he take evidence from Dawood bin Husain from Ikrimah from Ibne Abbas (RA), Rukanah bin Abd Yazeed divorced his wife three times. He became too sad. The Prophet (peace be upon him) asked, How did you divorce? Rukanah said I have given 3 talaaq. The Prophet (peace be upon him) asked in a single Majlis? He (Rukahan) said YES. (The Prophet) said then it is only one talaaq. If you want to do ruju (take back your wife) you can. Rukahnah did ruju.”
- Mahmood bin Lubayd (ra) narrates that the Prophet (Peace be upon him) was informed that a man divorced his wife with three pronoucments all-together, at this (The Prophet) became very angry, he stood up and said: Is the book of Allah being mocked at in my presence? Until one person stood and said O Allah’s Apostle should I not kill him? (Sunnan Nasai’i)
- Ahmad, Abu Dawood and Ibn Maajah narrated from ‘Aa’ishah (may Allaah be pleased with her) that the Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no manumission in the event of ighlaaq.” The majority of scholars said that ighlaaq means compulsion or anger, i.e., intense anger. For his anger made him unaware of what he was saying, so he is like one who is unconscious, insane or drunk, because of the intensity of his anger. So divorce does not take place in this instance. If he does not realize what he is doing and cannot control his words or actions because of the intensity of his anger, then divorce does not take place. (Imam Ahmad and Abu yala narrated and authenticated with the turk of Muhmmad bin shaq.)
From the above references and injunctions from the Quran and Prophet’s sayings, it becomes clear that “The divorce is twice …… (till the end of Ayat 229:Surah 02 (Al-Baqarah))” and ‘Triple Talaq’ in one sitting was considered and counted as one during the lifetime of the Prophet and first caliph Abu Bakr, and also during the first two years of Caliph Omar’s tenure. Muslim scholars and jurists of different schools of thoughts agree that till this time there was general consensus – Ijma, on treating Triple Talaq as one if pronounced in one go.
It also becomes clear from the above references that Caliph Omar for the first time imposed “Triple Talaq in one sitting” as valid for divorce saying "….. Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them (i.e. regard the divorce pronounced three times in succession as irrevocable divorce, it would have deterred them from doing so). So he regarded it as such.”
Further study into the subject reveals that during and after Caliph Umar (RA), there was a group of Companions who continued to follow the opposite view. But, the All India Muslim Personal Board (AIMPLB), where majority of members follow Hanafi school of thought, is shying away from sharing this fact from the general public.
On the contrary, they wrongly (and quite adamantly probably because of their strength in the board) claim that there was Ijma – general consensus, on the issue after Caliph Umar imposed ‘Triple Talaq’ in one sitting as valid. The fact is there never was consensus on Triple Talaq in one sitting, and since in principle, Caliph Umar’s decree (fatwa) cannot overrule injunctions from the Quran and sayings of the Prophet there always was a group of Companions (may Allah be pleased with them) who treated Triple Talaq in one sitting as one.
Renowned Saudi scholar Sheikh bin Baaz described this fact in these words:
“This (three divorce in one sitting=1) was the view of Ibn ‘Abbaas (may Allah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from ‘Ali, ‘Abd al-Rahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwam (may Allah be pleased with them).
“This was also the view of a number of the Taabi’een (the contemporaries of the Companions), Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Sheikh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims.”
Against this backdrop, it also becomes clear that the demand by the women activists and the members of the Bhartiya Muslim Mahila Andolan (BMMA) has concrete ground in the Islamic Shariah, and meeting their demand would not amount to “interference in the Muslim personal law or changing the Shariah” as the Muslim panel time and again reiterates.
As for the women activists and the BMAA, what is surprising is that though there is a very strong ground in Ahadith (plural of Hadith) supporting their point of view, they are ignoring them - totally unaware that by doing so they are risking their case. For, in principal Quran and Hadith both are valid grounds to take decisions on matters and issues, as Allah says in Quran in one of the Ayats mentioned above:
“……. remember Allah’s Favours on you (i.e. Islam), and that which He has sent down to you of the Book (i.e. the Quran) and Al-Hikmah (the Prophet’s Sunnah – legal ways – Islamic jurisprudence) whereby He instructs you.” [Surah 2 (Al-Baqarah), Ayat 231]
At another place, the Quran says:
“O you who believe! Obey Allah and obey the Messenger, and those of you who are in authority. If you differ in anything among yourselves, refer it to Allah and His Messenger, if you believe in Allah and in the Last Day. That is better and more suitable for final determination.” [Surah 4 (An-Nisa), Ayat 59]
But, instead of relying on the Quran and Hadith both and taking into account authentic references from both the primary sources of the Islamic Shariah, the women activists and BMMA members are demanding a solution based only on the Quran. And while doing so, they have also invented a new term “un-Quranic” to refer “Triple Talaq” as practiced in the country. They are probably afraid of difference of opinion among the Companions (may Allah be pleased with them) on the issue as mentioned above Ahadith and Aasar. But, it is here that the solution to this contentious issue lies.
A deep study into the subject will reveal that there are scholars and jurists who are of the view that Caliph Umar’s decree on ‘Triple Talaq’ was result of the situation of his time, which is not necessarily binding today. If there is a situation where treating “Triple Talq” as one is “more merciful and kind to the Muslims” then there are grounds in the Islamic Shariah and there is no harm in doing so. This is on this basis that in most of the Muslim countries “Triple Talaq” in one sitting is treated as one.
Did the scholars in these Muslim countries change the Islamic Shariah to suite their convenience or please their rulers, as some members of the Muslim panel unfortunately allege. No and not all. They did so as per the guidelines and purview of the Islamic Shariah which sadly the All India Muslim Personal Law Board (AIMPLB) is not ready to share and make public.
Islam is not rigid. It gives its followers, in the prescribed and set limit, permission to reform. Nobody is asking the Muslim panel to change the Islamic Shariah as per own will. When there are reports and data to substantiate the claim that “Triple Talaq” is used as a tool to victimize women and is one of the major factors in destroying Muslim families, mainly the poor, illiterate and ignorant, why not the Muslim panel give the counter view a chance to prevail, especially when there are instances in the Islamic Shariah in its support?
True, the stand of the All India Muslim Personal Law Board (AIMPLB) to treat Triple Talaq in one sitting as final and binding as discussed in detail above has strong basis and ground in the Islamic Shariah. But, there are equally strong grounds for the opposite view which cannot be ignored merely because people of one view are in majority as against those having the opposite view.
The present situation calls for a rethink in the strategy of the Muslim panel and is a challenge for its members. If the board members do not show the kind of resolve and insight the prevailing situation is demanding and do not take a wise decision at their earliest, a crisis might emerge which will prove (God forbid) more damaging for Muslims. And if so happened, it will be the opportunity BJP and its offshoots are eying for ever since the Modi government came to power in 2014.
[The writer, Aleem Faizee, is Founder Editor of ummid.com. He can be contacted at firstname.lastname@example.org]