While I am not in favor of forcing a stand on any sect against its wishes and I am totally against any intervention by courts or government in such issues, I would still like to present my case in the court of Muslim Personal Law Board in favor of a change in the stand of the Ulema on the issue, writes eminent Islamic scholar and author DR JAVED JAMIL
DR JAVED JAMIL | Caravan Daily
[dropcap]T[/dropcap]he endless debate about the triple Talaq goes on in India. All India Muslim Personal Law Board (AIMPLB) has again taken a decision not to make any change in its stand.
While I am not in favor of forcing a stand on any sect against its wishes and I am totally against any intervention by courts or government in such issues, I would still like to present my case in the court of Muslim Personal Law Board in favor of a change in the stand of the Ulema on the issue. We have to understand that:
(1) There are serious logical questions attached to the validity of Triple Talaq; and
(2) There are other schools of thought both within Sunni and Shia sects that disapprove it, making it easier for Hanafis to accept a different position if they decide to benefit from them. Unfortunately however, all sects do tend to be rigid in their stands even in the issues where their basic sectarian positions are not affected.
Let us first come to the logical part. See the following facts:
- Triple Talaq, which was the normal method of divorce before Qur’anic injunctions along with methods like Zihar was almost abandoned during Prophet’s time. Jurists try to take refuge in a few stories where it appears that Prophet was angry at the Triple Divorce still being followed by some, but according to the argument, he did not reject it. However, the hadiths opposite to this stand along with the Qur’anic position are too strong to be brushed aside.
- Triple Divorce was not applicable in Caliph Abu Bakr’s (RA) time and almost the first half of Caliph Omar’s (RA) tenure. Later he accepted Triple Divorce as a temporary executive order. Caliph Ali (RA) again did not accept Triple Divorce.
- To my amazement, people continue to talk “Three”. The truth is that the word “three” in relation to Talaq is totally missing in Quran. It talks of “At-talaaqu marrataan”, marrataan meaning two, twice or in two stages. Surah Baqar as well as Surah Talaq clarifies the two stages in considerable detail.
“Fattalaqu li-iddat” means Talaq for Iddah, which is the first divorce followed by Iddah, at the end of which one has to decide either in favor of “retaining her with honor” or “releasing her in an honorable way” (tasreeh or furqat).
Talaq for tasreeh or freedom is the second stage after which the two cannot meet again unless by coincidence (not through planning) she happens to be married to someone else and divorced. (There is absolutely no case for Halala which is nothing but a trick in Shariah.) Jurists have tried to support the case of Third Talaq through a word “fattalaqu” but that is not understandable and is only a forced attempt to support a predetermined stand. Quran says:
“Divorce is in two stages. So either hold them back respectably or release them in an excellent manner.” (2: 229)
“Then if he has divorced her, she shall not remain lawful to him until she marries another husband. In that case, if he divorces her, there is no charge against them if they return to one another, provided they think they will be able to maintain the boundaries of God.” (2: 230)
“When you divorce women, and their period (of waiting) matures, either retain them in a respectable way or give them freedom in a respectable way. But do not retain them with the purpose of maltreating them; if any one acts that way he offends himself. Do not make fun of the wonderful messages of God, and admire Him for His Gift to you in that He dispatched to you the Book and Wisdom that lectures you about everything. (2: 231)
“Prophet! When you people have to divorce women, divorce them for the Iddah (Waiting Period). Then keep a record of Iddah, and remain dutifully on guard to God, your Lord. (During Iddah), do not banish them from their living places, nor are they allowed to leave on their own, except where there is an open display of indecency on their part. These are Divine limits; and anyone who crosses the Divine limits offends his own self. You cannot (often) foresee some new developments that God can cause to happen after this pronouncement (of divorce). Subsequently, when the time of their (Iddah) is mature, you either hold them respectfully or part with them in an honourable way.” (65: 1-2)
“Moreover, take two persons, capable of acting with justice, as witness from among you, and establish the testimony for the sake of God.” (65: 2)
“Divorced women will bind themselves for three monthly periods.” (2: 228)
“If you have any doubts regarding the women who have entered the age of menopause, the period of Iddah (waiting) is three months, the (same being) for the women having amenorrhoea (for any other reason).” (65: 4)
“For those who are burdened (with pregnancy), their period is till they get free of their burden.” (65: 4)
“Moreover, it is not right for them to conceal what God has created in their wombs, if they are committed to God and the Last Day; and in that period their husbands have the right to annul the divorce, if they decide to reconcile. Women have similar responsibilities towards men as (men) have towards them. The status* of men however is a degree greater.” (2: 228)
- If suppose three talaq in one sitting is accepted as final, look at its dangerous consequences. If the wife completes her Iddah away from her husband’s house, which has become the usual practice, it is a clear violation of Qur’anic directive, which binds the man not to expel her and the woman not to leave on her own. Passing Iddah away from husband’s house kills the very purpose of Iddah.
In case her pregnancy becomes known about a month later, the husband may make allegations against her. If on the other hand she completes Iddah in the house of the husband, it means we are forcing a man and a woman to live for three months together despite the fact that they have become Haram for each other. This is against the very principle and spirit of Islam. Even if there are other family members in the family, which cannot always be the case, they are his people not hers.
- A common argument advanced in support of Triple Talaq is that it is a great sin and “if someone commits a murder, the death has taken place and life cannot be restored.” This argument is preposterous. A murder is not physically or functionally revocable. When a revocable mistake is committed, one is asked to rectify it. If a serious mistake occurs in Salaat, or Wudu is broken in between, one repeats the Salat. Qur’anic verses regarding Zihaar are enough to nail this argument. By the virtue of the Qur’anic verses, divorce through Zihar became a revocable act along with a punishment for the mistake.
“Those of you who pronounce Zihar [to separate] from their wives (must understand that through their words) they do not become their mothers. Their mothers are none but the ones who gave birth to them. And indeed, they are uttering an objectionable statement and a falsehood. But indeed, Allah is Pardoning and Forgiving. And those who pronounce Zihar from their wives and then [wish to] go back on what they said – [there must be] the freeing of a slave before they touch one another. That is what you are admonished thereby; and Allah is Acquainted with what you do. One who does not find [a slave] – (he has to) fast for two months consecutively before they touch one another; and he who is even unable to do that, (he must arrange) for the feeding of sixty poor persons.” (58: 2-4)
As I said earlier, I am not in favor of forcing any sect to give up its position. I have presented my case in the court. I feel the Ulema need to revise their stand so that the process of Talaq may become more in line with the letter and spirit of Quran, the dominant position of Prophet (SAW) and the logical fallout. Hanafi Ulema should also know that more and more couples who want to reconcile after Triple Talaq are now approaching the Ulama of Ahl-e Hadith, which is one of the reasons of the increasing popularity of that sect in India.