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Should Muslims follow the Qur’anic modality for Divorce?
By Syed Shahabuddin

The recent Bombay High Court (Aurangabad Bench) judgement on the modalities of divorce by a Muslim husband raises two very important issues. 

The first is whether the procedure prescribed for divorce in the Holy Qur'an is being followed and if it is not, whether the divorce is valid under the Muslim Law. 

And the second is whether, in case of the wife questioning the fact or validity of divorce, as claimed by the husband, divorce becomes justiciable and the fact and due process of divorce are to be proved before the Court, in accordance with the procedural law, which applies in India.

The first issue has been with us for many years: The Ulema have so far refrained from declaring the common form of Talaq, the Triple Divorce, as invalid, though it is a prima facie violation of the Qur'anic procedure for Talaq.

Talaq is a right vested in the husband in the Islamic law but considering that in India divorce causes a social stigma for the wife and that a divorcee cannot easily get remarried, its social consequences have to be taken into account. To permit a husband to pronounce Talaq arbitrarily, whimsically or according to his sweet will, encourages divorce and causes distress to the wife. Divorce, the Holy Prophet said, is the most obnoxious of all permitted rights in the eyes of Allah. There should, therefore, be legal constraints to discourage it and reduce its frequency. That is why the modalities for divorce as prescribed in the Qur'an envisage three stages before the divorce becomes final and irreversible with two sincere efforts at reconciliation with the participation of the families of both the husband and the wife. In keeping with the Qur'anic modalities, most Muslim countries which have codified their family laws have placed restraints on the exercise of the right of divorce by the husband. Such restraints are particularly needed in our country where a divorcee becomes ‘untouchable’. Since there is no Muslim code, the High Court judgement prescribes that the Muslim husbands follow the procedure laid down in the Holy Qur'an. One fails to see anything wrong in it.

The second question is essentially procedural. Courts function under the Indian Law. So if a fact is questioned i.e. whether the divorce was pronounced and whether it has become irrevocable in accordance with the Qur'an, which mode was adopted and in case of Talaq-e-Ahsan, whether the various stages for reconciliation were gone through, have to be proved to the satisfaction of the Court, through documents, affidavits and testimony of eye witnesses. There can be no substitute for this legal procedure, as all citizens and communities are subject to a common judicial system even on matters which are to be decided in accordance with the respective religious scriptures or religion-based laws. Muslims cannot have a separate judicial system. Of course, the Muslim society may decide such questions internally through the institution of Quzat and Shariat Panchayats provided the decisions are accepted by both parties and neither party goes to court. This would indeed help reduce the burden on the judicial system.

From a purely pragmatic angle, I am absolutely certain that an application for review to the Bombay High Court or an appeal to the Supreme Court will be totally ineffective. Moreover, the Muslim community would fail to convince the public opinion that asking Muslims to follow the Holy Qur'an constitutes an interference in their religion. They would be making a laughing stock of themselves.

From an academic angle, the question revolves around the primacy of custom ('Aadat) over law (Shariat). There is a growing consensus that the Shariat (based on the Holy Qur'an and the Traditions) must prevail over 'Aadat’. Indeed, the Muslim community follows many customs which are vestiges of the pre-Islamic times or reflect local influences. Some are violative of the scriptural text and they can be reformed only by "going back to the roots", as was done in Algeria when the family law was being codified.

From the factual angle, even if a Court declares the Talaq to be invalid, nothing deters the husband, if he is desperately anxious to separate, from pronouncing a valid Talaq in accordance with the Qur'anic procedure.

It may be noted that on post-divorce maintenance, the recent judgement of the Supreme Court which envisages a life-long provision (payable within the Iddat period) has been in effect acquiesced in by the All India Personal Law Board. Thus, through adhoc judicial intervention, Muslim family law, as prevalent in India is being refashioned. Time has, therefore, come for the Ulema to codify the Muslim family law, as it has been in many Muslim States to save it from ill-conceived judicial and ill-motivated political interference. 

Marriage in Islam is designed to be a permanent relationship. For its permanence, marriage calls for mutual accommodation. Divorce is a safety valve when the couple find themselves mutually incompatible despite honest and sincere effort for a modus vivendi. Divorce can be by mutual consent or at the initiative of the wife and by the unilateral decision of the husband. The terms of separation should be determined by mutual agreement, keeping in view that the dower if not paid at the time of consummation of marriage by the husband to the wife constitutes a debt and the gifts made by the husband to the wife or vice-versa are never conditional or revokable. These two conditions apply even in the other two eventualities. But once a divorce becomes subject to judicial intervention, the responsibility for straining the marital tie to the breaking point has to be factored in. If the wife is found to be at fault, there is no question of Mata’ al Talaq i.e. any special consideration in the form of a parting gift or provision for alimony recurring or otherwise. If the husband is at fault or insists on exercising his right, even though the wife is not at fault, he should pay compensation or reparation to the divorcee. In some Muslim countries, 12 months maintenance has been considered to be adequate reparation which would enable the divorcee to set up her separate household, begin a new life or even to find a husband. Indeed the Muslim Code would need to incorporate both a standard Nikahnama (matrimonial deed) as well as a standard Talaqnama (deed of divorce).

Muslims are never tired of emphasizing the equality of man and woman in Islam. But many Muslim men regard marriage as an institution in which the husband acquires a proprietary right over the wife who is regarded as a chattel. ‘Zaujiyat’ (conjugality) is treated as ‘Milkiyat’ (title). It is this concept which led the second Caliph Omar (RTA) to lay down that the Triple Talaq i.e. Three divorces pronounced in one sitting is valid, as the husband has lost the right to reclaim or retrieve his ‘possession’ by acting hastily. That reinterpretation may have been suitable for a particular point in time and space. But Allah’s message is valid for all times and all places. So the Muslims believe. The Ulema and the community should endeavour to bring out the inner symmetry and inherent justice in and the permanent ‘modernity’ in Islamic regulation of human relations, including the most sacred relation of all, the conjugal relation between a man and woman, based on love, trust and surrender.

In defence of the right of women, the West has gone too far in prescribing alimony for life which serves as an incentive for a women to marry and seek divorce, time and again, or in allowing complete sexual freedom and equality, which has negated the concept of virginity (for man and woman alike), encouraged mutual infidelity and, what is worse, promiscuity by both. Islam, through the Holy Qur'an, stands for ‘Adl’ (justice), and, therefore, for balance between husband and wife, though for the sake of stability of the family structure, it allows an edge to the earning member (normally the husband) in final decision-making over family matters. 

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