New Delhi: Triple talaq is the "worst" and "not a desirable" form of dissolution of marriage among the Muslims, the five-judge constitution bench headed by Chief Justice J S Khehar said on Friday the second day of hearing on a batch of petitions filed in the Supreme Court of India to nullify and abolish triple talaq as practiced in India.
The words used here are too harsh but no doubt were necessary because of the All India Muslim Personal Law Board (AIMPLB) members who are adamant and stick to their stand even as woman after woman are coming out almost on daily basis with stories telling how they have suffered because their in laws misused triple talaq for own advantage.
Only a fool will in the present scenario will deny that 'triple talaq' the way it is being practiced in India under the patronage of clergy, has turned into a hell the lives of many women. We should however note that TALAQ - if used according to the clear guidelines of Qura'n and Sunnah is still the best form to end marriage in case of disputes.
Talaq or divorce sometimes is the only option when despite reconciliation a couple does not wish to live together. So to give an impression, as is the case now, that the matter is related only to Muslims is a myth. I have personally seen couples from other faiths taking rounds and rounds of courts and being exploited by family lawyers. On one such occasion, a woman said tying the knot is much easier than getting divorce under existing laws.
This shows the necessity of having a system of divorce not only for Muslims but also for people from other faiths. It is hence become necessary to study afresh the entire process of divorce as described in Quran and supported in Sunnah.
Qura'n is very explicit about divorce and there is an entire chapter on the subject. It says all efforts should be made for reconciliation between couples in case of a dispute and does not encourage immediate separation.
"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
If reconciliation fails and a man decides to divorce his wife he should utter divorce sentence. The wife, after she has been divorced in this way, must stay in her husband's house for a period of three menstrual cycles.
Divorced women shall wait concerning themselves for three monthly periods. During this period the husband cannot turn his wife out from the house and should take care of all her expenses. In the meantime, family members should try to reconcile them.
During this period, if husband and wife change their minds, the divorce can be revoked in the presence of two just witnesses.
But even after three-month period if there is no reconciliation, both husband and wife will be considered as separated. She is now a free woman with all rights to marry the person of his choice.
Qura'n allows woman to remarry her former husband in case she wants to give their relation one more chance. New 'nikah' (contract) would take place and the woman will get a compulsory wedding gift (Mahr) from her husband.
"Nikah Halala" is not needed in such a case. As a matter of fact there is no such thing in Islam called as "Nikah Halala". It is the act of some misguided people and they are responsible this evil and shameful act, not Islam.
“And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis.” — Quran, Surah 2 (Al-Baqarah), Ayat 232
Suppose, due to some reason, a dispute arises a second time and divorce becomes inevitable, the Qura'n says that divorce can take place for the second time.
The 'talaq' would be pronounced once again and the entire procedure described above will be followed. There will be a again a three-month period for reconciliation and resolve differences. If all efforts fail then the couple ceases to be husband and wife thereafter. She is now again a free woman and has all the right to marry the person of his choice.
Now Qura'n, gives another chance to the divorced couple. If both feel they wanted to be with each other once again, they can again get married by a new nikah, and new marriage gift for the wife.
If unfortunately some dispute arises for a third time and divorce becomes inevitable then the Quran says that this is the limit.
“Divorce is twice. Then, either keep (her) in an acceptable manner or release (her) with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep (within) the limits of Allah.” — Quran, Surah 02 (Al-Baqarah); Ayat 229. (More on Triple Talaq can be found here.)
In just one word we can describe this procedure - a blessing. If not, then its critics should come out with a better system than this.
This also answers the question of the judges who asked how Muslim men could seek divorce if the court bans 'triple talaq'. Banning 'triple talaq' will not do any harm to Muslim families as long as they have 'talaq' and exercise in case of disputes following the above Qura'nic procedure.
There is also ample evidence to prove that Islam restricted the limit of divorce to three for the first time. Otherwise in pre-Islamic period a wife was divorced countless times - even 100 and 200 times, a husband would exploit thus this privilege to torture his wife.
And in one of the best examples of gender equality, if a husband is given a right to divorce, Islam also gives a wife right of "Khula" using which she can seek separation from her husband if she does not wish to live with him.
The questions however is this. When the Muslims have such a perfect system of divorce then where is the problem?
The problem is with the clerics who control the All India Muslim Personal Law Board (AIMPLB) majority of whom are Hanafis and for whom their Hanafi school of thought is more important than Islamic Shariah and hence a yardstick in the way to correctly contemplate the intentional meaning the plain and clear guidance from Qura'n and Sunnah in the matter.
Not all the members in the Muslim panel have the same tendency. Some of the members, including some senior women members, of the All India Muslim Personal Law Board (AIMPLB) while talking to ummid.com have said there is a strong voice within the board calling for quick reform. But, they said, their demands are suppressed as the board is dominated and fully under control of Hanafi clerics who are not ready to move an inch from their stand which has now been totally exposed as being against the Quran and Shariah.
So what is the way out?
Ban triple talaq, punish those who violate the ban and impose 'talaq' as explained above, as it is still the best form of marriage dissolution.
[Aleem Faizee is the Founder Editor of ummid.com. He also heads Noble Education & Welfare Society (NEWS) and is Founder Secretary of Malegaon Industries & Manufacturers Association (MIMA), an industry body responsible for establishing Malegaon Textile Park. He can be reached at firstname.lastname@example.org.]