By Syed Mohammad Aamir Ali
Dedicated to “All those courageous and determined women who knocked at the doors of the Supreme Court and provided it an opportunity to give positive judgments on Muslim law.”
“It is a popular fallacy that a Muslim male enjoys under the Quranic Law an unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretext for divorcing his wife so long as she remains faithful and obedient… Indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.” —Justice V.R. Krishna Iyer
The utopian union of the husband and wife is a perennial pre-requisite for conjugal covertures. Islam, therefore, insists upon the synovial subsistence of a bridal brolly wherein husband and wife are basking. Primarily, no marriage is contracted in Islam to be dissolved in future. But in rare-avis situations this celestial celebration may come to an end owing to the mawkish megrims of the spouses, particularly of men, though a divorce may be either by act of husband or by act of the wife. In the pre-Islamic Arab world, the pertinent power of divorce (Talaq) possessed by the husband was recklessly unlimited. Pronouncements and revocations of Talaq were devoid of any recondite reasons and judicative justifications whatsoever.
In the post-Islamic Arab world, when Holy Prophet-hood was bestowed upon the Prophet of Islam (PBUH), he looked upon these concupiscent customs of divorce with dissentient disdain and disapproval. The Prophet of Islam (PBUH) regarded this pervert practice as callously calculated to hamstring the foundation of society. The Prophet (PBUH) had to immaculately inculcate Islamic injunctions and teachings into the macabre minds of Arabs who were acquiesced in the brutalisation, dehumanisation, and subjugation of women from cradle to cremation. They revelled in polygamy, polyandry, misogyny, and polygyny without any submission to the supremacy of the Supreme Being: The Almighty Allah. Prior to Islam, a husband could desert his wife at a moment’s notice. His repudiation (Talaq) of his wife operated as an instant and final denouement of the conjugal contract. This right of repudiation exercised by the husband stemmed from his exalted position as a purchaser of a wife since the institution of slavery and manumission was rampant.
The Holy Quran, of course, virtually suspended the effects of severance of matrimony until the expiry of the “waiting period” (Iddat), which was to last until the wife had completed three menstrual cycles or, in the case of her being pregnant, until the delivery of the child. This period is primarily designed and emplaced to provide an opportunity for reconciliation between the spouses as per the Quranic injunctions; meanwhile, the wife is entitled to maintenance from the husband. But it should be remembered that the Prophet (PBUH) pronounced “Talaq to be the most detestable before God of all permitted things.” Thus, divorce being an evil, it must be eschewed as far as possible. There are Quranic forms of Talaq which are most compatible with gender justice, medical morality, human honour, and personal parity.
Talaq is an Arabic word; its literal meaning is “to release” or “taking off any tie or restraint” or “removal of the restrictions of Nikah,” and in Islamic jurisprudence, it signifies the repudiation of marriage or dissolution of marriage, i.e., divorce. There are different modes of Talaq ordained in the Holy Quran. There are two kinds of Talaq sanctified in the Holy Quran and approved by the Holy Prophet (PBUH):
- Talaq-ul-Sunnat (revocable divorce) having two forms: Talaq-i-Ahsan (Most Proper Divorce) and Talaq-i-Hasan (Proper Divorce).
- Triple Talaq (Talaq-ul-Biddat): It is a sinful form of divorce. It is the irregular mode of Talaq introduced by Umayyads in order to escape the strictness of law. Talaq-ul-Biddat is a recognized form of divorce among the Hanafis. Triple repetition is not a necessary condition for the irrevocability of effect. Sunni Law recognizes Talaq-ul-Biddat, though they think it to be sinful. Under Talaq-ul-Biddat, once a definite complete separation has taken place, the parties so separated cannot remarry without the formality of the woman marrying another man and being divorced from him.
Position of Triple Talaq
In the light of the Quran & Hadith, Triple Talaq is the most disapproved, detestable, and draconian form of dissolution of Muslim marriage. It was not there during the lifetime of Prophet Muhammad (PBUH). It was a post-prophet innovation of Umayyad Oligarchs in the second century of the Hijri era and subsequently approbated by the jurists of Hanafi Law, the most strong and dominant school of Islamic jurisprudence conspicuous on the canvas of the Sunni sect of Muslims across the world.
Triple Talaq is a tryst with tyranny, which is innovatively impregnated with torture, trauma, and tormentation. Triple Talaq is a weapon of victimisation of women in the hands of Muslim men devoid of any ethics, arbitration, and reconciliation. Triple Talaq destroys a woman emotionally, socially, and economically. Despite the fact that Islam is the first religion that recognised and legitimised the indivisibility of the individuality of a woman, her personality and personhood is independent and revenant by the Islamic injunctions as ordained in the Holy Quran. She has been endowed with certain inherent non-dirigible human rights. But Triple Talaq symbolises the subordination, subjugation, and suppression of human rights of women, which have already been made available to them by the Holy Quran. Moreover, Islam treated rights of women as human rights.
Triple Talaq is a recognised form of divorce in the contemporary legal regime in India or Muslim Law as administered in India. Muslim jurists have perceived it as a novel innovation in Sharia Law. It was not there in the initial two years of the lifetime of the first Caliph Abu Bakr (R.A.H.) and second Caliph Umar (R.A.H.) the Great. But subsequently, Triple Talaq was allowed exclusively in some special circumstances. Consequently, this form of Triple Talaq continued to enjoy spiritual and temporal legitimacy on one hand and judicial recognition on the other hand in India.
The Holy Quran, the paramount source of Islamic jurisprudence, has not ordained that the three divorces pronounced in a single breath would have the effect of three separate divorces. To this effect, the relevant verse of the Quran can be relied upon:
“A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness.”
Hence, on the basis of Quranic materials as analyzed above, it may be concluded that only one divorce in effect results from three pronouncements at one occasion.
Hadith
The view that mere repetition of divorce without an intention to give a Mughallaza or final divorce, or simply by way of emphasis or in momentary excitement, does not amount to a Mughallaza final divorce finds full support from the following tradition:
“Mahmud b. Labeed reported that the Messenger of Allah was informed about a man who gave three divorces at a time to his wife. Then he got up enraged and said: Are you playing with the Book of Allah who is great and glorious while I am still amongst you? So much so that a man got up and said: Shall I not kill him?”
If the repetition were permissible, then it is not clear as to why the Prophet (P.B.U.H.) should have been so angry.
Judicial Trends with Regard to Triple Talaq
Though the issue of triple Talaq has been in debate for a long time in India and it is clear that triple Talaq is not in accordance with Quranic principles and the Sunnah, the courts have shown reluctance to uphold the procedure of Talaq-e-Ahsan or Talaq-Hasan due to the apprehension of criticism from the clergy. In some cases, the courts have upheld the Quranic procedure, holding triple Talaq in one sitting or in a drunken state ineffective or revocable. In most cases, however, it abides by Islamic jurisprudence governed by the four schools of jurisprudence because they do not want to hurt the feelings of Muslims—as in the case of Sara Bai vs. Rabia Bai in 1905, where the Bombay High Court ruled that triple Talaq was irrevocable. This precedent was followed by the judiciary until 1978. Later, the judiciary followed the same rule of triple Talaq in other cases as well, showing reluctance to bring about a revolutionary change in this aspect.
However, a remarkable effort was later made by Justice Bahrul Islam, the Chief Justice of the Gauhati High Court, to judicially redefine Talaq. He held that the husband does not have unbridled power to give Talaq to his wife and that for pronouncing Talaq there must be some reason and reconciliation efforts before pronouncing it according to the principle laid down by the Quran, and that unintentional Talaq in one sitting was in clear contradiction of the Shariah.
Shamim Ara vs. State of U.P. & Another (AIR 2002 SC 3551)
Decided by Justices R.C. Lahoti & P. Venkatarama Reddi, the Supreme Court stated the following principles in relation to unilateral, oral talaq by a Muslim husband:
- Three successive pronouncements of Talaq are said to be one.
- An oral talaq, to be effective, has to be pronounced / uttered; if the wife contests the divorce in court subsequently, the fact that it was pronounced will have to be proved.
- A mere statement in writing or in oral disposition before the court regarding the talaq having been affected in the past is not sufficient to prove the fact of divorce.
- Such a form of divorce is not recognized in ancient holy books or scriptures of Muslims.
- Talaq, to be legally valid, must be for a reasonable cause.
- Talaq must be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be affected.
Dagdu Pathan vs. Rahimbi (Full Bench of Bombay High Court, 2002)
A Full Bench judgment of the Bombay High Court stated that mere pronouncement of talaq by the husband or merely declaring his intentions or his acts of having pronounced the talaq is not sufficient and does not meet the requirements of law. In every such exercise of the right to talaq, the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq. It further held that if the husband has not been able to prove his statement regarding divorce given earlier to making such a statement before the Court, there does not exist a talaq in the eyes of law, and such a statement cannot be taken as a fresh declaration of divorce, as a mere declaration of divorce is not sufficient by itself for a valid divorce.
A.S. Parveen Akhtar vs. Union of India (Madras High Court, 2002)
Decided by R. Jayasimha Babu & E. Padmanabhan, JJ., the petitioner argued that the Muslim Personal Law (Shariat) Application Act, 1937, by providing for the application of Muslim Personal Law in matters relating to marriage where the parties are Muslims, conveyed a wrong impression that the law sanctions this sinful form of talaq, which is grossly injurious to the human rights of married Muslim women and offends Articles 14, 15, and 21 of the Constitution. The Court relied upon the Supreme Court judgment in Shamim Ara and reiterated that talaq, in whatever form, must be for a reasonable cause and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses.
Conclusion
Not at the conception of the religion, but further down with its growth, did the malady of Talaq-ul-Biddat arise. The most unfortunate aspect is that this unilateral sword bestowed in the hands of the husband is released to sacrifice the woman at his whim, and this is recognized by law in 21st-century India. Not only is this form of divorce against all scruples of morality, but it inflicts severe blows to the spirit of womanhood. This paper throws light on how such a form of abominable divorce vitiates three of the most prime fundamental rights enshrined in the Constitution of India: Article 14 (equality), Article 15 (against discrimination), and Article 21 (Right to Life and Liberty). These are burnt to ashes while the courts—including the Supreme Court, the protector of the Constitution—have till date not declared this form of Talaq void and unconstitutional.
Till when will the facade of personal law be able to shroud such blatant injustice? The irony remains that though the Court in innumerable instances has recognized triple Talaq’s discriminatory nature, since it is a sensitive issue, courts majorly shy away. Thus, how can this form of Talaq be in line with the Right to Equality? Even commercial contracts cannot be broken in this manner; are human relationships so fragile and cheap? No one can deny that there are significant rulings that should have a far-reaching impact, but unfortunately, due to the submissive attitude of the legislature and the judiciary, they hardly bring about changes in social norms within communities, remaining merely as ornamental snippets in law journals.
However, steps taken by the Apex Court in the Shamim Ara case placed checks and balances on the unlimited power of the husband and the unilateral sword of divorce to prevent the subjugation of women’s rights. Yet, we needed to repeal Talaq-ul-Biddat from our statutes because it was not Islam, but Umayyad practices, that gave validity to these biddat divorces.
As it has recently been pointed out by Justice Iyer:
“It is a popular fallacy that a Muslim male enjoys under the Quranic Law an unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretext for divorcing his wife so long as she remains faithful and obedient to him. Indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.”
The research paper thus attempts to question the judiciary’s attitude and to throw light on the question: Is this form of divorce truly bad in theology but good in law?