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Published in the 1-15 July 2004 print edition of MG; send me the print edition

Triple divorce – need for change
By Asghar Ali Engineer

Recently several cases of on the spot triple divorce have been reported in the press. In Bihar just because wife of a person did not vote for the candidate of his choice in the Lok Sabha election he pronounced triple divorce and threw out his wife. Again just a few days ago, a husband came drunk in Bhadrak, Orissa on 3rd June, and had a tiff with his wife and pronounced talaq thrice but in the morning he realised his mistake and wanted to take back his wife but leaders of the Muslim community separated them insisting that it is irrevocable divorce and they cannot live together as husband and wife. Besides this many cases just go unreported.

There is now report from Kerala that members of orthodox Sunni organisations have threatened to agitate if women are allowed to pray on Friday in the mosque. In the girls college in Manjeri students have been praying on Friday in the mosque on college premises. But the Samastha Kerala Sunni Students Federation (SKSSF) has launched a public agitation against women being allowed to pray on Friday in the mosque.

What such acts of triple divorce or agitations against women praying on Friday in the mosque convey to the world? Do women have secondary status in Islam? Is it sin to pray to Allah in mosque on Friday? What sort of Islam is this? How can Islam banish women from praying on Friday inside the mosque? For these orthodox Muslims customs and traditions are more important than the Qur’anic injunctions.

They do not know that Islam was the first religion in the world to empower women and give them equal legal status. The Qur’an clearly pronounces equality of sexes see verses 2:228 and 33:35. Commenting on the verse 2:228 Maulana Azad in his Tarjuman al-Qur’an says that it is revolutionary declaration of equality of sexes 1300 years ago. But the Muslim society under the influence of feudal social ethos never realised this revolutionary potential of Qur’anic teachings.

However, these old institutions developed under different social ethos cannot work today. The women are making fast strides in different fields of life. The extent of education and consciousness of their rights is far more widespread today than ever before. Even in conservative Saudi society the women are no more prepared to accept their traditional role. Only last week i.e. beginning 12th June 2004 seventy Saudi Arabian scholars and intellectuals participated in the first day of third national dialogue forum in Madina to address the rights of women in particular prompt and full delivery of justice to women.

The overall theme of this three -day forum is women’s rights and duties and their relation to education. Many women scholars read out papers in this forum to discuss ways to eliminate religious extremism in the Saudi Kingdom. In Madina the organisers hope to create an environment conducive for Saudi intellectuals and scholars to discuss the position of women in Saudi society and to find out the best ways to develop their status in line with Islamic teachings.
This clearly shows there is great deal of ferment among women even in the Saudi society. Women cannot be treated in the old ways any more. In India also Muslim women have become more conscious about their Islamic rights and are demanding changes in the Personal Law in keeping with the Qur’anic teachings. As pointed out the Islamic laws in relation to women are most modern in their approach but Muslim societies have preferred traditional interpretations by Imams in pre-modern feudal society to the clearly worded Qur’anic injunctions.

Talaq is a highly sensitive issue as it can break years of marital relations between husband and wife. Thus the Holy Qur’an is also very cautious in matters of divorce. Firstly, it has adopted most modern approach to this sensitive issue. It requires arbitration before any breach of relations. The Qur’an says, “And if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them.” (4:35)

Thus through arbitration the breach should be prevented and attempt should be made to bring them together again as Allah desires harmony. Despite such clear Qur’anic injunction we approve of triple divorce in one sitting and destroy marital life in one breath. How such an act be Islamic? It is greatest injustice, specially with women. Again justice (‘adl) is so central to Qur’anic teaching. And to throw one’s wife but by pronouncing three words of talaq is most unjust act. There are three four key words in Qur’an – ‘adl, ihsan, rahmah and hikmah (i.e. justice, benevolence, compassion and wisdom) and triple talaq is against all these key words. Neither it is justice, nor it is benevolence (ihsan), nor is it compassion (rahmah) nor is it an act of wisdom (hikmah).

All Muslims are also not unanimous on this form of divorce. Ahle-Hadith, Hanbalis and Shi’ahs reject this form of talaq. Even Hanafi Muslim countries like Jordan have reformed this practice and enforced the Quranic injunction of arbitration. Arbitration can and does save many marriages. The Qur’an does not permit triple divorce at all. Three talaqs have to be spaced over a period of three months so that husband and wife get enough time for reconciliation through intervention of relatives and friends. Moreover talaq can be given only when wife is in a state of tuhur i.e. purity after menstruation. If talaq is pronounced during the period of menstruation it will not be valid. The Prophet has ordered wife to be taken back if the talaq is pronounced during menstrual period. Triple divorce disregards all this completely.

Some Muslim women have devised a standard nikahnama (marriage contract) strictly within the Shari’ah framework and given to the Muslim personal law board a couple of years ago so that Muslim women do not face such situations. Since marriage in Islam is a contract such nikahnama is perfectly valid and was approved by a great ‘alim like Maulana Ashraf Ali Thanavi. But the Personal Law Board is hesitating to implement it. If implemented, it can give lot of relief to Muslim women. This is very modest piece of reform (in fact it is really not any reform or change but only a modicum of relief to suffering women) but the Personal Law Board is hesitating in implementing even this.

All ‘ulama agree that pronouncing triple talaq in one sitting is bid‘ah (innovation) and that bid‘ah is sin and yet this sinful practice is enforced in the name of divine law. In fact tripe divorce indeed is great sin as it is so unjust and oppressive for women. Every possible attempt should be made to eradicate this sinful practice from our society. The ‘ulama who are guardians of Islamic law should play a leading role in this matter. I have had discussion with many ‘ulama who privately agree that this form of divorce should be abolished but do not have courage to say so publicly.

The Personal Law Board should at least launch an awareness movement educating Muslim men about desisting from this sinful form of divorce and resort to the Qur’anic form of divorce as clearly spelled out. I am not aware of any such awareness movement. The Muslim men are Islamically illiterate and do not even know that triple divorce is a sinful form of divorce and Holy Prophet has strongly disapproved of this form of divorce. If the members of personal law board do not have courage to abolish this form of divorce they should at least have courage to launch an awareness movement among Muslim men and appeal to them not to resort to such form of divorce.

Maulana Ashraf Thanavi and others had taken a bold step in 1939 and drafted the Dissolution of Muslim Marriage Act, which gave great relief to suffering women. Can the members of Muslim Personal Law Board not show such wisdom and draft a comprehensive law codifying the Muslim Personal Law on the lines of the 1939 Act. It will give great and much needed relief to Muslim women. 

However, there is no such sign of codifying the Muslim personal law and suffering of Muslim women continues. If Maulana Ashraf Thanavi and others could take such bold step way back in 1939 why can’t our ‘ulama in 21st century take such step? This will be not only in keeping with the true spirit of Islam but will also go a long way in improving the image of Islam in India. It is due to such un-Qur’anic practices that image of Islam has suffered and the demand for Uniform Civil Code surfaces.

The Islamic law is most progressive and in fact should become a model law for all others if our orthodox ‘ulama care to understand and implement it in its true spirit. Maulavi Mumtaz Ali Khan, Maulavi Chiragh Ali, Justice Ameer Ali and others pleaded for reforms in late 19th and early twentieth century but nothing has happened so far. 
Now it is for Muslim women to acquaint themselves thoroughly with Islamic law and launch a movement for reform and change. Women in all Muslim countries have struggled for change and succeeded. Now, as referred to above, even women in the most conservative Saudi society have begun to assert themselves. It is therefore, high time that Muslim women in democratic society like that of India struggle for reform within the Qur’anic frame-work and win their rights guaranteed by the scripture.

That seems to be the only way left for them. Progressive and believing Muslim men should also come forward and support such movement for reform. 

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