Muslim personal law in India owes its origin to Muslim Personal Law (Shariat) Application Act, 1937. It is not a codified and detailed law. British themselves called the enactment as Anglo-Mohammedan Law but were renamed as "Muslim personal law" after independence of India. The oft-repeated claim is that any change in Muslim Personal Law is interference in divine law. We should not consider the enactment by British government as divine and static. These different schools of Shariah law came into existence as a result of different human interpretations and to that extent there is always a scope for new and creative interpretations in keeping with changed circumstances. The first change in the Mohammedan law occurred in Dissolution of Muslim Marriages Act 1939 initiated by Muslim Ulama.
When Muslim women found it problematic to wait for 90 years if their husbands were missing according to the Hanafi School, the Ulama, in order to overcome this difficulty, borrowed the rule from the Maliki School which allows the woman to wait only for a period of four years. This shows that there can be changes in the Shariah. Triple talaq is a common form of divorce among Indian Sunni Muslims, by which a wife is instantly divorced if the husband says/writes "talaq'' three times, even in her absence. Darul Uloom fatwa accepts triple talaq occurred even under coercion or in a state of inebriation. That talaq given under coercion has no recognition or validity, for the Qur'an explicitly lays down that there can be 'no coercion in religion' (2:256). If a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses (4:43).
In November 2010, the Darul Ifta (fatwa department) of the Darul Uloom Deoband evoked strong protests by women's groups when it ruled that a triple talaq pronounced over the phone was valid even if the wife could not hear it due to network problems, and even if no witnesses were present. Muslim World is humiliated by the way Islam is projected by All India Muslim Personal Law Board (AIMPLB). The latest embarrassment is the Board's affidavit in the Supreme Court in the current triple talaq case. Board's position is unashamed patriarchal posturing and its defense of instant triple talaq on the ground that it prevents women from being murdered by their husbands. The Board seems to view marriage as an institution for male and not as a reciprocal affair.
AIMPLB has adopted very rigid stance on the question of reform. Their usual argument is that it will open floodgates of change and interference from government. Justice is far more important than imaginary fear. The Ulama themselves took initiative in 1939 and it did not open floodgates of reform or interference. The Deobandi 'ulama, who dominate the Board are groomed in patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars. The misinterpretations of the text, stretching to 14 centuries of patriarchal mindset, women have been treated as second class human beings. It is a negation of the prophetic model inscribed in this proclamation: "The best of you is one who is best for his family" (Ibn Majah 1:636).
Abominable practice of triple talaq
Marriage in Islam is a serious contract (misaqan ghaliza- Qur'an 4:21). Even when divorce is inevitable it must be in a fair manner; as the Qur'an repeatedly exhorts men to either retain her (in marriage) in goodness or leave her (i.e. divorce her) in kindness (2:229). The great theologian of 14th century Imam Ibn Taymiyyah decisively rejected and wrote extensively refuting the practice of triple talaq. Ahl-e-Hadis also rejects it. Syed Shahabuddin suggested abolishing triple talaq to the All-India Sunni Ulema Council in his Mehmood-ur-Rehman Committee 2008 (set up to examine the status of Muslims in Maharashtra). Uzma Naheed, a devout Muslim fighter for women's rights, who would later join the AIMPLB, urged it to punish men who pronounced triple talaq by getting their property attached.
Bharatiya Muslim Mahila Andolan (BMMA), in its 2010 survey of 4,719 Muslim women across 10 states, under the title 'Seeking Justice within Family' edited by Dr Noorjehan Safia Niaz and Zakia Soman, had found that 88 per cent of them wanted a ban on triple talaq. 89 per cent Muslim women feel that the government should intervene and help in codification of law and 86 per cent want religious leaders to take responsibility of justice for them. Women (95.5%) from the sample study have not heard about AIMPLB. As many as 21 other counties, including Pakistan, Turkey, Syria, Egypt, Morocco, Algeria, Iran and Tunisia Iraq, Malaysia, Indonesia and Bangladesh, have already abolished triple talaq either explicitly or implicitly.
Supreme Court has already held triple talaq as void in its Shamim Ara v State of UP judgment of September 18, 2002. It was the judgment of a division bench of the Supreme Court comprising Justice RC Lahoti and Justice P. Venkatarama Reddi. The judgment clearly means that already there is no legal validity for the triple talaq. Why should AIMPLB wants reinstate a sinful, invalidated, and illegal practice and thereby pave the way for communal forces? Sticking on triple talaq by AIMPLB only strengthen attempts to bring in a Uniform Civil Code by Hindu right.
‘Divorce should be last resort’
Divorce (talaq) should be the last resort of a believing Muslim, as the Qur'an says: "Consort with them in kindness, for if you dislike them, it may be that you dislike something in which God has placed much good" (4:19). The Prophet said: "The most hateful permissible thing in the sight of God is divorce" (Abu Dawud: 1863). When there is a serious marital discord, the Qur'an (4:34) advices the husband to reason out (fa'izuhunna) with his wife through discussions. If differences persist the parties are directed to sexually distance themselves (wahjuruhunna) from each other in the hope that this temporary physical separation may encourage them to unite.
And if even this fails, the husband is instructed to once again elucidate (wazribuhunna) to his wife the seriousness of the situation and try to bring about reconciliation. In pursuance of wazribuhunna, the husband shall clarify to his spouse that if they do not decide their differences soon enough, their dispute may go beyond the confines of their house which may not be in the interest of both parties. This would be true because, if the dispute still persists, the Qur'an (4:35) instructs the matter to be put before two arbiters, one from the family of each spouse, for resolution.
It is only after the miscarriage of the abovementioned four attempts at reconciliation that the Qur'an allows the first talaq to be pronounced followed by a waiting period called the iddah. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses (see Qur'an 2:228-229). If the parties are unable to unite during iddah as visualized 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 proclaimed the marital bond is severed and the parties cease to be of any relation to each other.
Even after iddah has lapsed, the Qur'an offers the challenging 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 husbands if they mutually agree on equitable terms" (2:232). After the expiry of iddah, as per verses 2:231 & 232, the parties are given the choice 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 summarized that after four thoughtful attempts at reconciliation a Muslim husband is permitted to divorce his wife once or twice within the period of iddah to recommence conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddah he can either re-contract the marriage on fresh and reciprocally agreeable terms or irrevocably divorce her by proclaiming the third and the final talaq. For divorced women a substantial gift (Mata) should be provided on a reasonable scale (Qur'an 2:241).
(Author is the Secretary International Interfaith Dialogue India based in Kochi)
