Islamic law of divorce

Submitted by admin3 on 11 May 2011 - 1:03pm

Articles
Indian Muslim
Muslim World News
By A. Faizur Rahman for TwoCircles.net,
The law of divorce is one of the most misunderstood and debated canons of Islam.
And its back in focus thanks to the recent judgement of a Delhi court which uph
eld the validity of divorce given by a Shia Muslim to his wife through his agent
to pronounce the word 'talaq' in Arabic as he himself was not conversant with t
he language. The Shia law insists that divorce must be pronounced in Arabic eith
er by the husband or his agent (vakil) in the presence of two male witnesses. On
the contrary, the Sunni law does not make pronouncement in Arabic compulsory wh
ile it surprisingly upholds the legality of talaq uttered in the absence of witn
esses despite the fact that the Quran in surah Talaq clearly mandates the presen
ce of two witnesses at the time of divorce. But then the Sunni law also allows i
nstant triple talaqwhich is not allowed under the Shia law. Given these differen
ces, it becomes imperative to know as to what the Quran and the last Prophet had
to say on this issue which has become so contentious today.
Under the present Muslim law the term talaq is exclusively used for divorce proc
eedings initiated by the husband whereas divorce at the instance of the wife is
called khula. But the Quran does not differentiate between talaq and khula. In f
act, the word khula finds no mention in the Quran. Yet we find khula discussed a
t length in Muslims books of jurisprudence with no reference to the Quran or the
Prophet’s elucidation of it. One may be shocked to know that while men are grante
d the right to absolute divorce without any judicial intervention (by pronouncin
g the word “talaq” thrice in quick succession), Muslim jurists restrict this right f
or women under khula by laying down the conditions that;
a) The offer of khula from the wife must be accompanied by a consideration (usua
lly monetary) known as evaz
b) The offer must be accepted by the husband.
For this reason khula sometimes is referred to as talaq ba evaz al maal that is,
the right of divorce purchased by the wife from her husband for a certain mutua
lly agreed sum of money (Fatawa al Hindiyah). This un-Islamic provision that den
ies women legal equality is justified on the basis of a clause (highlighted in b
old letters) in the following verse:
A divorce is only permissible twice: after that, the parties should either hold
together on equitable terms, or separate with kindness. It is not lawful for you
to take back any of your gifts (from your wives), except when both parties fear
that they would be unable to keep the limits ordained by Allah. If you do indee
d fear that they would be unable to keep the limits ordained by Allah, there is
no blame on either of them if she gives something for her freedom. These are the
limits ordained by Allah; so do not transgress them if any do transgress the li
mits ordained by Allah, such persons are the wrongdoers. (2:229).
It is obvious that the highlighted portion of the verse has been taken out of co
ntext. The injunction cannot be construed as an allusion to khula as it would co
me in direct conflict with another clause of the Quran (quoted and translated ab
ove) which confers upon the Muslim women rights on a par with men; wala hunna mi
slul lazi alai hinna bil ma’aroof (2:228). It is actually an inducement offered to
men in order to prevent them from keeping their wives in a state of suspense by
neither resuming conjugal relations nor releasing them by pronouncing the third
divorce after the initial two divorces. This was one of the ways by which men h
arassed women during the time of the Prophet. It was perhaps to obviate such dil
atory tactics by men that women were permitted to offer, as a matter of goodwill
, some consideration to their husbands to terminate the marriage tie. To de-cont
extualise this Quranic recommendation and misinterpret it to deny women their ri
ght to divorce by making it conditional on an acceptable financial recompense to
their husbands through khula would amount to distorting Islam.
The foregoing analysis proves that although the procedure of talaq given in the
Quran is with reference to men (perhaps because, barring exceptions, historicall
y men have been victimising women rather than the other way around) the same hol
ds good for women. This is because marriage in Islam is a solemn contract (meesa
aqan ghaleeza) and both parties have equal rights to revoke this covenant in acc
ordance with the Quranic procedure if the other party breaches it. Also, as the
Quran is based on principles of gender justice there is no question of granting
legal superiority to men on any issue including divorce. In this context, it bec
omes imperative to look at the procedure of divorce as explained in the Quran to
have a better understanding of marital rights in Islam.
Four steps before the first talaq
(As laid down in 4: 34-35)
As a first step, when there is a marital discord, the Quran advices the husband
to reason out (fa’izu hunna) with his wife through discussions. If differences per
sist, then as a next step, the parties are asked to sexually distance themselves
(wahjuru hunna) from each other in the hope that this temporary physical separa
tion may encourage them to unite.
And if even this fails, the husband is instructed, as a third step, to once agai
n explain (wazribu hunna) to his wife the seriousness of the situation and try t
o bring about a reconciliation. In pursuance of wazribu hunna, the husband shall
explain to his wife that if they do not resolve their differences soon enough,
their dispute may go beyond the confines of their house and become common knowle
dge which may not be in the interest of both parties. This would be true because
, if the dispute still remains unresolved, as a fourth step, the Quran requires
the matter to be placed before two arbiters, one from the family of each spouse,
for resolution.
Three talaqs
(As laid down in 2:228-232 & 65:1-4)
It is only after the failure of the aforementioned four attempts at reconciliati
on that the Quran allows the first talaq to be pronounced followed by a waiting
period called the iddah. Not more than two divorces can be pronounced within thi
s period, the duration of which is three monthly courses (as per 2:228-229). For
women who have attained menopause or suffer from amenorrhea the period of iddah
is three months, and in the case of pregnant women it is till the termination o
f pregnancy (65:4).
And if the parties are unable to unite during iddah as envisaged by verse 2:228,
the final irrevocable talaq can be pronounced, but only after the expiry of the
iddah (2:231). Once the final talaq has been invoked the marital bond is severe
d and the parties cease to be of any relation to each other. However, even after
iddah has lapsed, the Quran offers the contending parties a chance to reunite,
provided the final talaq has not been pronounced. It says, “When you divorce women
and they complete their term (iddah), do not prevent them from marrying their h
usbands if they mutually agree on equitable terms” (2:232). In other words, after
the expiry of iddah, as per verses 2:231 & 232, the parties are given the option
s of remarriage and permanent separation- the separation being the third and the
final irrevocable talaq to be pronounced in the presence of two witnesses (65:2
).
Thus, it can be summarised from the above discussion that after four serious att
empts at reconciliation a Muslim husband is permitted to divorce his wife once o
r twice within the period of iddah to resume conjugal relations without having t
o undergo the procedure of remarriage. After the expiry of iddah he can either r
e-contract the marriage on fresh and mutually agreeable terms or irrevocably div
orce her by pronouncing the third and the final talaq. It is understood here tha
t the woman cannot be left hanging without either being united with her husband
or irrevocably divorced. The parties have to decide one way or the other within
a reasonable period of time. This is clearly implied in the verse 2:231 which sa
ys “but do not take them back to hurt them or to take undue advantage. If anyone d
oes this he wrongs himself.”
However, to emphasise the sanctity of the marriage tie and the enormity of break
ing it for frivolous reasons, the Quran warns that once the parties choose to se
parate after the expiry of the iddah, they cannot entertain hopes of marrying ag
ain unless the wife takes another husband and he divorces her (2:230). It is und
erstood here that a divorce may result only if the new husband has serious diffe
rences with his wife, and in the rare event of such differences cropping up, he
is required to follow the Quranic procedure of divorce as discussed above.
Step by step summary of the Quranic procedure of talaq
1. Husband and wife to reason out through dialogue (fa’izu hunna)
2. Temporary physical separation (wahjuru hunna)
3. More convincing to effect reconciliation (wazribu hunna)
4. Arbitration
5. First talaq followed by iddah
6. Options within iddah: 2nd talaq or resumption of conjugal relations without r
e-marriage
7. Options after iddah: Re-marriage or final separation through third talaq.
Divorce as understood and practiced in India today
Despite the clarity of the Quran and Prophetic teachings on the issue the concep
t of divorce has been completely misunderstood by our clergy. As per the prevail
ing understanding of “shariah” in India, talaq has been broadly categorised into tal
aq al sunnah and talaq al bid’ah. The first form refers to divorce pronounced in a
ccordance with the Quranic procedure as explained by the Prophet, and the second
one alludes to a sinful innovation (bid’ah) supposedly introduced by the second C
aliph Umar. In this type of divorce the husband is authorised to repudiate his m
arriage by saying the word talaq thrice in quick succession in the presence if h
is wife who then ceases to be his spouse with immediate effect. Hazrat Umar is s
aid to have legalised this innovation to discourage people who had adopted this
undesirable practice as a quick way to get rid of their wives.
This account may be apocryphal for two reasons. First; a hadith in Abu Dawood sa
ys that Hazrat Umar himself punished people who uttered three divorces at the sa
me time, and second; why would the Caliph of Islam legalise the very misogynist
practice he was trying to abolish? It would have made sense if he had issued a d
ecree to the contrary delegitimising the annulment of marriage on the pronouncem
ent of three divorces in one sitting. What is astonishing is, the Sunni jurists
consider talaq al bid’ah a grave sin and yet legalise it. No theological explanati
on is offered as to how a sinful act can become legally valid. But the most shoc
king part of the Sunni law is that talaq al bid’ah is valid under threat, fraud, i
nfluence of drink, and even out of ignorance. The only form of triple talaq that
Hanafi law does not recognise is the one pronounced during sleep! It may be rec
alled that last year Deoband issued a fatwa validating triple talaq given by a d
runken man, and it was fully backed by the All India Muslim Personal Law Board.
One of the justifications offered for this ruling is that it discourages the use
 of liquor by men! The question is; should the dissuasion of alcoholism be at th
e cost of a marriage wherein the affected party invariably is the hapless wife t
o say nothing about her innocent children?
The legality of instant triple talaq has also led to the abominable circumventio
n of the Quranic injunction of 2:230 (discussed above) to overcome its impractic
ality. To help the victims of this law a pliable person is set up who marries th
e divorced wife, consummates the marriage overnight and divorces her the next da
y so that the original husband can remarry her in accordance with 2:230. This ou
trageousness which an innocent woman is subjected to for the ruthlessness of an
un-Islamic and inhuman law is known as halala. Although many ulema have outlawed
this disgraceful practice, it still prevails clandestinely among the followers
of the Sunni sect.
The truth is; the concept of instant triple talaq is alien to Islam as it goes a
gainst the very spirit of the procedure of divorce laid down in the Quran. Even
the Prophet when he was informed about a man who gave three divorces at a time w
as so enraged that he said, “Are you playing with the Book of Allah who is Great a
nd Glorious while I am still amongst you?” (Mishkat-ul-Masabih). It may be noted h
ere that the Prophet’s warning was against trivialising the “Book of Allah.” This is a
clear admonition to given to the Muslims that if they wish to dissolve their ma
rriage they must do so only in accordance with the Quran and nothing else.
In the absence of any initiative from Muslim theologians to abolish it, courts i
n India are forced to uphold the validity of triple talaq on the principle of st
are decisis declaring the practice to be “good in law though bad in theology.” The p
recedent cited is the Privy Council Judgment in the case of Aga Mohammad Jaffer
vs. Koolsom Beebee [(1897) 25 Cal.9, 18, 24, IA. 196,204] wherein it was held th
at it would be wrong for the courts to put their own construction on the Quran i
n opposition to the express ruling of commentators of “such antiquity and high aut
hority.”
In the light of the aforementioned arguments the India ulema are hereby requeste
d to recognise the fact that a Muslim husband is not entitled to pronounce even
onetalaq without having first exhausted the four reconciliation attempts mention
ed in 4:34-35. They must immediately outlaw instant triple talaq and delegitimis
e unilateral divorce proceedings without the intervention of a judicial authorit
y to safeguard the rights of both parties. Interestingly, Pakistan enacted such
a law half a century ago entitled The Muslim Family Laws Ordinance, 1961. Accord
ing to this law any man who wishes to divorce his wife shall, after the pronounc
ement of talaq in any form whatsoever, give the Chairman of the state appointed
Union Council notice in writing of his having done so, with a copy to the wife.
Within thirty days of the receipt of notice the Chairman shall constitute an Arb
itration Council consisting of himself and a representative of each of the parti
es for the purpose of bringing about reconciliation between the parties. Contrav
ention of this procedure is punishable with simple imprisonment for a term which
may extend to one year or with fine which may extend to five thousand rupees or
with both. It is time a similar law is enacted in India too.
--
The author is the Secretary-General of the Chennai-based Forum for the Promotion
of Moderate Thought among Muslims. He may be reached at faizz@rocketmail.com.
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