By Sultan Shahin, Founding Editor, New Age Islam
16 April 2017
A five-judge constitutional bench of the Supreme Court is to hear petitions challenging Muslim practices of triple Talaq, Nikah Halala and polygamy from May 11. This is a great opportunity for much-needed reforms in Muslim Personal Laws that previous governments beholden to Mullahs have not been able to bring about. But fundamentalist Mullahs are prepared to go to any extent to preserve their turf. They are holding conferences after conferences to show their muscle. But they will not be able to hide their theological infirmities.
In an affidavit, the All India Muslim Personal Law Board (AIMPLB) has taken what can only be called a bizarre doctrinal stand. It has told the Supreme Court that if triple talaq mode of divorce was declared illegal, it would amount to disregarding Allah's directions and rewriting of the Holy Quran to force Muslims into committing sin. As almost the entire Muslim world, including Saudi Arabia, Pakistan and Bangladesh have declared instant triple talaq illegal, clearly in view of the AIMPLB; they have all gone beyond the pale of Islam. Now Islam is a religion being practiced only by some Indian Mullahs, so it would seem. This even amounts to declaring Shias as well as Sunni Wahhabi sects like Ahl-e-Hadith apostate because they consider triple talaq in one session as equal to only one reversible talaq.
Even stranger is the fact that AIMPLB consists of Ulema from Shia, Ahl-e-Hadith and other Salafi-Wahhabi sects as well. Why are they not protesting at being virtually called apostate groups which have “re-written Quran and forced Muslims to commit sin, altering the very essence of the religion of Islam” by a group of which they are members?
The most astounding fact in the AIMPLB affidavit is the justification it seeks for instant triple talaq from the Holy Quran. This has never been done before. Everyone knows there is no justification for instant triple talaq in the holy Quran. All protagonists of the triple talaq in one sitting have so far only quoted Ahadith (so-called sayings of the Prophet, many of them clearly weak and inauthentic, collected hundreds of years after the demise of the Prophet) and juristic rulings of companions of the prophet, or later jurists and theologians.
In fact, there is a hadith narrated by Ibn Abbas (ra) that in the case of brother of Mutlab, Rukanah bin Abd Yazeed who had divorced his wife three times in one session, the Prophet (Peace be upon him) said “then it has the effect of only one divorce, if you want to take her back you can.” Thus, Rukahnah took her back.
The AIMPLB quotes the following verses of the Quran as a proof for its contention that triple talaq in one session is to be treated as three and irreversible divorce: “Divorce can be pronounced twice: then, either honourable retention or kind release should follow. .... Then, if he divorces her, she shall not be lawful to him unless she first takes another for a husband.” (Quran Al- Baqarah 2:229 and 230)
The trick here lies in concealing the verses that come before and after these verses.
Let us study the Quran’s position on divorce and expose the AIMPLB’s game. Quran starts with suggesting a cooling off period. “Those who intend to divorce their wives shall wait four months; if they change their minds and reconcile, then God is Forgiver, Merciful. If they go through with the divorce, then God is Hearer, Knower. [Quran Al- Baqarah 2: 226--227]
The following verse shows why AIMPLB is seeking to hide it from the Supreme Court.
"And the divorced women (after the pronouncement of the divorce) must wait for three monthly courses... and their husbands are fully entitled to take them back (as their wives) during this waiting period, if they desire reconciliation." (Al-Baqarah: 228)
AIMPLB is also hiding from the court the last verses of the series: “And so, when you divorce women and they reach the end of their waiting term, then either retain them in a fair manner or let them go in a fair manner. And do not retain them to their hurt or by way of transgression; whosoever will do that will indeed wrong himself.” (Al-Baqarah (2:231)
Not content with this, God further encourages reconciliation, calling it better and purer: “And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis. That is instructed to whoever of you believes in Allah and the Last Day. That is better for you and purer, and Allah knows and you know not.” (Al-Baqarah (2:232)
Has the AIMPLB not read the following verse either? “If a couple fears separation, you shall appoint an arbitrator from his family and an arbitrator from her family; if they decide to reconcile, God will help them get together. God is Omniscient, Cognizant.” [Quran 4:35]
Where is the opportunity for reconciliation that God demands in the Anglo-Mohammedan law that goes in the name of Muslim Personal Law in India? Why is AIMPLB seeking to hide these verses of Quran from the Supreme Court? Can’t the Muslims and the court see the immoral, fraudulent nature of the AIMPLB’s position?
Clearly, unlike the un-Quranic view of AIMPLB, God gives Muslims full opportunity to consider divorce patiently before engaging in the third and final divorce as a last resort, when every attempt at reconciliation has failed. Quran stands for a well thought out decision made only as a last option for what the Prophet (pbuh) called “the most undesirable act before God among those permitted.” (Sunan Abu Dawud, Bab Karahiya al- Talaq, 1, 526. Hadith no: 2179).
No Muslim would stand for a hasty decision in regard to something like marriage that the Quran refers to as a ‘strong covenant’ (4:22). How can the Quran itself allow this “strong covenant” to be broken in a matter of seconds?
In India, many a time Muslims pronounce talaqs three times in a huff, either in a state of anger, depression or drunkenness, and then regret later. Shia ulema or those from Sunni Salafi sects like Ahl-e-Hadith that follow Quran will tell them not to worry, just keep living with your wife as talaqs pronounced in one session thrice or hundred times will have the effect of only one talaq which is easily reversible. But Mullahs from AIMPLB, which surprisingly contains Shia and Ahl-e-Hadith ulema as well, will say that now the person concerned has no option but to take recourse to nikah-e-halala, an absolutely vile and obscene practice prevalent only among Indian Muslims now. This means that the “divorced” woman (actually not divorced from the viewpoint of Quran) will be forced to “marry” again, sleep with a stranger, often a local Mullah, for a few nights and then get divorced again and marry her husband again to get back to her previous life. All this for no fault of hers.
It is well known that when someone dared to pronounce three talaqs in a row during Prophet’s time, he flew into a rage and said: “How dare you turn my religion into a joke while I am still alive.” He allowed him to take his wife back as he was already penitent, treating the three talaqs in one sitting as one reversible talaq. The second rightly guided caliph Hazrat Umar instituted a system of punishing with 40 lashes anyone who pronounced three talaqs in one sitting.
Though a supporter of instant triple talaq, Mufti Taqi Usmani, a Deobandi scholar of Pakistan admits in his well-regarded book Dars-e-Tirmidhi: “According to Imam Abu Hanifa ([702--772 CE] to whose school of thought most Indian Muslims belong and so call themselves Hanafi) and Imam Malik ibn Anas (711-–795 CE), this (triple talaq in one sitting) is haram (forbidden) and bid’at (innovation). A narration of Imam Ahmad ibn Hanbal (780--855 (CE) also supports this opinion. It is also quoted that the holy companions (of the Prophet) like Hazrat Umar Faruq, Hazrat Ali, Hazrat Ibn Masuood, Hazrat Ibn Abbas and Hazrat Ibn Umar (may Allah be pleased with all of them) also adopted the same view.”
Quoting Muhammad bin Muqatil al-Razi, Deobandi scholar Waris Mazhari points out that Imam Abu Hanifa too supported the view that three talaqs in a row are to be considered on reversible talaq. And so did the teacher and mentor of Hammad bin Abu Sulaiman, Imam Nakhaee, who was the teacher and mentor of Imam Abu Hanifa.
These were the opinions of the first few generations of Muslims in 7th/ 8th/and 9th century CE. But even 13th/14th century jurists of the stature of Ibn Taimiyah, Ibn al-Qiyam, and the Shi‘a Imamiyah, consider three pronouncements of the word talaq in one session equal to only one reversible talaq. The same is true of several well-known modern scholars like Rashid Rida, Muhammad Shaltut, and Yusuf al-Qaradawi, etc.
There have also been jurists in this period who were prepared to take three talaqs in one session as final. There were a variety of socio-political reasons informing their decisions.
But today an overwhelming majority of scholars in more than 25 Muslim states such as Egypt, Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Yemen, Afghanistan, Libya, Kuwait, Qatar, Bahrain, and the United Arab Emirates, are following Ibn Taimiyah’s and Ibn al-Qiyam’s stand on this issue, considering triple talaq as amounting to only one reversible talaq. So did Pakistan half a century ago. Bangladesh has improved its laws further after independence. Recently Sri Lanka has done the same.
The most pertinent example is that of Pakistan’s Muslim Family Laws Ordinance, 1961, as Pakistani Muslims, by and large, follow the same Hanafi fiqh as do most Indian Muslims. It says:
Section 7, Talaq:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be 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.
(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
Unlike scholars in other countries, Indian Ulema are arguing that “though pronouncement of Triple Talaq in one go is undesirable but (it is) irrevocably effective.” They are quoting this verse of the Quran in support: The Quran itself declares, that: “Divorce is twice; then either to retain in all fairness, or to release nicely. [Surah-Al- Baqarah 2:229]. In its affidavit AIMPLB quotes Imam Bukhari (2, 791) to claim the following: “it is clear that though pronouncement of talaq thrice at one go is undesirable but in view of the aforesaid verse of the Holy Quran, it is clear that three pronouncements, howsoever they may be made result in valid dissolution of marriage.”
I would like to tell the AIMPLB that this fait accompli argument just does not hold water in view of the fact that God did not accept it in the case of Az-Zihar. In order to give talaq indirectly, some Arabs in Prophet’s time used to practice Az-Zihar. They would say that my wife is like my mother or sister, thinking that this would lead to an indirect talaq. This practice made God very angry. In Quran Chapter Al-Mujadila (58), verses 2 to 4, He calls this practice vile and falsehood, and a lie and prescribes punishment for those who engage in such vile practice.
“If any men among you divorce their wives by Zihar (calling them mothers), they cannot be their mothers: None can be their mothers except those who gave them birth. And in fact, they use words (both) iniquitous and false: but truly Allah is one that blots out (sins), and forgives (again and again). (Quran Sura Al-Mujadila (58), verses 2)
Clearly God does not accept the fait accompli argument in the case of divorce by Az-zihar: why should it then be applicable to triple talaq in one session? Our ulema have now come to agree that the practice of instant triple talaq is vile and abhorrent. But they don’t even prescribe any punishment for the evil-doer?
Ulema around the world have abandoned this practice, if at all it existed anywhere or at any time. It’s only Indian Muslims led by AIMPLB who are still refusing to bring their Personal Law in line with the Quran. AIMPLB itself calls this practice bid’at (innovation) and mamnoo’ (prohibited) in its law book Majmooa-e-Qawaneen Islam (Article 267). If it is bid’at (innovation that started after the demise of Prophet Mohammad), in its own view, how can it tell the Supreme Court that it is a practice supported by the Quran, and that declaring it illegal would amount to rewriting the Quran?
It’s time Indian Muslims rescued themselves from the un-Islamic and self-contradictory ways of their ill-informed, ill-intentioned, male chauvinist Mullahs. And it’s time Supreme Court helped them do that.
Sultan Shahin is the founding editor of a progressive Islamic website NewAgeIslam.com.
Note: A slightly shorter version of this article appeared first in FirstPost.com. This version is available at: firstpost.com/india/triple-talaq-row-mullahs-are-subverting-islam-and-misleading-the-supreme-court-3386432.html