Published On: Thu, Oct 19th, 2017

Lessons in Islamic Marriage Jurisprudence

‘Triple Talaq’ doesn’t find mention in The Holy Qura’n. The practice was banned in Prophet Mohammad’s (PBUH) lifetime, yet the Indian media and her political parties rake up the issue time and again to demonise the Muslim community, Rayees Masroor writes.

The phenomenon of the breaking up of the marital ties between two spouses is known as dissolution of marriage. After this, the two spouses get separated and are free to marry anyone of their choice. Islamic law has recognised but regularised the institution of dissolution of marriage.

 

Among ancient Arabs, the dissolution of marriage was very easy and of frequent occurrence. Husbands possessed an unlimited power to dissolve the marital ties. They could not only divorce their wives at any time with or without reason but also revoke their divorce again and again as many times as they preferred. They could, if they were so inclined, swear that they would have no intercourse with their wives, though still living with them. After divorce, the rule of Iddat was not a strict one. It is also interesting to note that the period of Iddat, in case of death of a husband was one year.

 

The Prophet Mohammad (PBUH) looked upon these customs with extreme disapproval and regarded these practices as calculated to undermine the foundation of society. He, therefore, sought to regulate the institution of dissolution of marriage with due response to all the legal, social and psychological factors. The Prophet (PBUH) in fact moulded the minds of Arabs to higher objectives of life. He made it clear to the human society for all the times to come that ‘with Allah, the most detestable of all things permitted is divorce.’ Even though Quran recognises the right to divorce, it recognises it only with numerous injunctions to observe justice, fair play, generosity and kindness. Arbitrary exercise of the power to divorce has been restricted and limited.

 

The reforms of Prophet Muhammed (PBUH) marked a new departure in the history of Eastern legislation. He restrained the power of divorce possessed by the husband and gave the woman the right of obtaining a separation on reasonable grounds. He went so far as practically forbid the exercise of divorce by men without the intervention of arbitrators. Islam discourages divorce in principle and permits it only when it becomes absolutely impossible for the two persons to live in peace and harmony. The Quran enjoins reconciliation before separation in these words: ‘And if ye fear a breach between husband and wife, send a judge out of his and another from her family if they are desirous of agreement. God will effect a reconciliation between them, for God is knowing and apprised of all (Alquran 4:35).

 

The word ‘Talaq’ is usually rendered as repudiation. It comes from a root ‘tallaqa’ which means to release from a tether. In its literal sense, this Arabic word ‘Talaq’ means ‘taking off any tie or restraint’ and in law it signifies the absolute power, which the husband possesses, of divorcing his wife. A Muslim husband possesses the power to unilaterally dissolve the marriage. Such a proceeding although abominable, is nevertheless lawful. The idea on which divorce is based is that when there is breakdown, the parties should separate with kindness and without friction. Husband who by nature is supposed to be less emotional should declare the breakdown.

 

However, this right is sometimes misused by transgressors and for this reason, the ‘triple Talaq’ has become the most debatable issue in the present scenario. The Islamic shariah which was formulated more than hundred years after the death of the Prophet Mohammad PBUH and had evolved under complex influences of various civilizations took away what was given to the women by the Prophet Mohammad (PBUH) and the Quran.

 

The issue of triple Talaq in one sitting illustrates this very well. It was practiced during jahiliah period before the advent of Islam. The usual practice then was to pronounce the word ‘talaq’ two times and withhold the third pronouncement, making the wife thus live in a constant fear of the third utterance. The triple divorce was not allowed during the Prophet Mohammad’s (PBUH) lifetime, during the reign of first khalifa, Abu Bakar (RA) and for more than two years during the second khalifa Omar’s (RA) reign. Later on, Omar (RA) permitted it on account of a peculiar situation when the Arabs conquered Syria, Egypt, Persia, etc where they found women much more beautiful than their own women and hence were tempted to marry them.

 

But those women, not knowing Islamic abolition of triple divorce in one sitting, would insist that before marrying them, they should pronounce divorce thrice to their existing wives, which they would readily accept to do as they knew Islam had abolished triple divorce and that it would not be effective. So they married the Syrian and Egyptian women and also retained their earlier wives. When the Egyptian and Syrian women discovered this transgression, they complained to Omar (RA), the caliph, who then enforced triple divorce again to prevent its misuse by the Arabs. He had done so to meet an emergency situation and not to enforce it permanently. Later, the jurists also declared this form of divorce valid and gave sanction to it.

 

There are other records in literature that when the Prophet Mohammad (PBUH) was told that so and so had divorced his wife thrice in one sitting, his face turned red with anger and he stood up and said that the transgressor was ridiculing the divine law in the Prophet Mohammad’s (PBUH) own lifetime and asked the man to back his wife. The Quran does not mention triple divorce in one sitting. It requires the divorce to be effective over three months of cleanliness, giving the couple a chance to reconcile during those three months. The Quran also provides for arbitration between man and wife by appointing an arbitrator for each and they together would attempt reconciliation, failing which the decision for divorce will be recommended to Qazi.

 

Thus, both Quran as well as Prophet Mohammad (PBUH) prohibit arbitrary divorce. A fatwa given by Mufti of Ahl-e-Hadith rejecting the validity of triple divorce brought the Talaq issue to focus again. Maulana Asad Madan, president of Jamiat-Ulema-e-Hind, has strongly opposed the fatwa and declared it a conspiracy and unislamic. The progressive Muslim intellectuals like Maulana Wahiduddin Khan have upheld the fatwa. They argue that if Shariah is based on the Quran and Sunnah, then there is no place for pronouncement of triple divorce in one sitting.

 

As such there has been a debate on the issue for quite a long time. However, some media channels in India have been debating it every now and then, making it a huge issue only to create divide among Muslims and some political parties are clearly and cleverly using it as a tool to serve their political ends and divert the attention of the masses from the real issues. This is in spite of the fact that the issue has been resolved by the Supreme Court. One can only hope and pray to Allah (SWT) that some good sense prevails among Muslim scholars.

The author is a scholar and political analyst. He can be reached at rayeesmasrur786@gmail.com

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