Thursday, July 28, 2016

The Triple Talaq Controversy In Indian Muslim Personal Law: Need for Reform in Muslim Divorce Laws

By Waris Mazhari
28 July 2016
The issue of triple Talaq in one sitting has once again become a subject of heated discussion.  Many Sunni Muslims continue to oppose the argument that uttering the word Talaq in one sitting does not and cannot dissolve a Muslim marriage. This is because triple Talaq in one sitting as constituting an irrevocable divorce has been the position of many (though not all), of the scholars affiliated with the four major schools of Sunni jurisprudence for centuries. This makes those who adhere to one or other of these schools less receptive to the idea of reforming this practice. The fact of the matter, however, is that today the times demand that the practice be reformed. The world is bound to change naturally with the passage of time, and this requires that every existing religious and social system be receptive to this natural phenomenon always.
Some Muslims wrongly believe that any rule whose origin is from outside the four schools of Sunni jurisprudence is prohibited, and that is why they oppose the argument for making three Talaqs in one sitting to be just one, not three. However, this concept of theirs has no authentic foundation in Islamic jurisprudence.
In Sunni jurisprudential history, we find many instances of various practices which earlier were followed by others who were treated as innovators but which later on, due to changes in political and social conditions were favourably adopted by the Sunni Ulema or scholars of Islamic jurisprudence. It is hoped that the pressure of circumstance would similarly lead the Ulema of today to accept suitable reforms in the law of divorce, too. Contrary to what some people might think, the Islamic jurisprudential framework has adequate scope for reform in the divorce law. In principle, the Ulema are of the view that Fatawa or opinions on issues that are based on human reasoning and, therefore, are capable of being subject to a new interpretation (mujtahadfih), can be changed with the changing conditions of time and place, if necessary. Hence, one could argue, because of the changed conditions of today, the divorce law should also be suitably changed. Besides, there have been a number of Islamic scholars and jurists who were of the view that triple Talaq in one sitting must be  regarded as just one Talaq, not three, and hence as not constituting an irrevocable divorce. This means that the popular view, that because the four schools of Sunni jurisprudence claim that triple Talaq in one sitting dissolves a Muslim marriage, even a slight deviation from this stance is tantamount to deviation from Islam, is just not true.
There have always been a considerable number of Muslim scholars and jurists, since the period of the Companions of the Prophet Muhammad until today, who have insisted on the other view, that if a Muslim husband utters the word Talaq three times in one sitting, it constitutes one Talaq. According to Ibn ul-Qayyim (d.1350), the famous Muslim jurist and theologian, some noted Companions of the Prophet, such as Ali (the fourth Caliph of the Sunni Muslims), Abdullah bin Masood, Abdullah bin Abbas, Zubair bin Awwam, and Abdur Rahman bin Awf, viewed the utterance of the word Talaq in one sitting as one, not three, and, thus, as not resulting in an irrevocable divorce (Al-Talaq Ul-Mughallaza). Ibn ul-Qayyim writes that some of the followers and disciples of Abu Hanifa, putative founder of the Hanafi school of jurisprudence (with which most Indian Sunnis claim affiliation), issued rulings in accordance with this view. There is also a tradition that Muhammad bin Muqatil al-Razi, a disciple of Muhammad ibn Hasan Shaibani, who was himself a disciple of Abu Hanifa, said that once Imam Abu Hanifa, too, supported this view. Imam Nakhaee, teacher and mentor of Hammad bin Abu Sulaiman, who, in turn, was the teacher and mentor of Abu Hanifa, also subscribed to this view. Among modern-day Islamic scholars who have supported this view are well-known figures such as Rashid Rida, Muhammad Shaltut, and Yusuf al-Qaradawi, among others. This is also the view of some Muslim sects, such as the Ahl-e Hadith and ‘Twelver’ Shias of the Jafari School.
When formulating the law about divorce, it appears that the Quran tends to put a restraint on quick divorce since it clearly suggests that ‘A divorce is only permissible twice; after that, the parties should either hold together on equitable terms, or separate with kindness.’(2:229) According to this verse, there must be room for retaining the wife after uttering the word Talaq, which would not be possible if triple talaq in one sitting were to be considered an irrevocable divorce, after which the man cannot take his divorced wife back. It seems illogical and unnatural that a marital relationship of, say, thirty years breaks off within thirty seconds, without leaving a chance of reconsideration. The Quran (4:22) refers to the agreement which a husband and a wife pledge together as a ‘strong covenant’, and, obviously, that cannot be so vulnerable and easily broken by a one-sided decision taken in a state of anger or depression.
Another important point to consider is that according to all Islamic scholars, uttering Talaq thrice in one sitting and taking it to mean a final divorce is an innovation (Bid’ah), and innovation is condemnable, as is clearly mentioned in the Hadith, reports attributed to the Prophet. This being the case, how can an innovation be enforced and made a rule in the matter of divorce?
Those who claim that three Talaqs in one sitting count only as one, and not three, and so does not result in the end of a Muslim marriage also infer their opinion from a Hadith recorded in the Sahih Muslim, a collection of Hadith reports widely respected among Sunni Muslims. According to this report, Abdullah bin Abbas, the famous Companion of the Prophet who is called ‘leader of the interpreters of the Quran (Rais Ul-Mufassirin), said that triple Talaq in one sitting was considered as one in the period of the Prophet, the period of the first Caliph Abu Bakr, and during the early years of the second Caliph Umar (Sahih Muslim, 1482).
Another tradition relates that a companion of the Prophet, Rukanah bin Yazid, divorced his wife thrice in one sitting. He then regretted what he had done and approached the Prophet. The Prophet asked him how he had divorce his wife. Rukanah answered that he had done so by pronouncing the word Talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce, and that if he wanted to take his wife back he could. And so, Rukanah took her back (Musnad Ahmad: 2387).
Several early Muslim scholars have extensively written on the subject of triple Talaq in one sitting being one Talaq, not three, and, therefore, not an irrevocable divorce. One of these was the noted Ibn ul-Qayyim, who devoted almost 30 pages of his book Zaad al-Ma‘ad (‘Provision of the Hereafter’) to the issue. He says that Islam facilitates ease and simplicity, and that the Shariah urges that the utterance of the word Talaq thrice in one sitting must be considered as one so that there should remain a chance for a second thought and lives not be ruined by a quick decision. Imam Razi (d.1209), in his renowned commentary on the Quran, Mafatih ul-Ghaib (‘Keys to the Unknown’), also known as al-Tafsir ul-Kabir, suggests that holding triple Talaq in one sitting to be three, and thus constituting irrevocable divorce, is an attempt to generate an evil that is not legitimate.
These examples are of just some of the several Islamic scholars down the centuries who have insisted that three Talaqs in one sitting count as one Talaq, not three, and that this does not constitute a final and irrevocable divorce.
Defenders of triple Talaq in one sitting often cite the enforcement of this practice by Umar, the second Caliph. In response, it can be said that this was intended for the welfare of the society in that particular socio-historical context. Umar thought it an appropriate ruling as men had made Talaq a joke by taking back their wives even after uttering the word Talaq several times, because of which their wives had to suffer, being stuck in a vicious circle and not being able to gain their freedom. Misusing the provision that allowed men to utter the word Talaq and then take back their wives, men had become reckless and irresponsible, and that is why he decided to consider triple Talaq in one sitting to constitute an irrevocable divorce. It should be noted that there are some other instances of such exceptional cases in which Umar issued decrees in a manner that departed from tradition, functioning with the exceptional right in his capacity of head of the administration.
We are living in a world where many issues resulting from changing socio-political circumstances pose great challenges for the Ulema. Their solutions simply cannot be sought within the limits of the four walls erected by the imams of the four schools. There is a dire need to seek solutions directly from the Quran and the practice of the Prophet for these issues. Also, if the traditions of scholars of Islamic jurisprudence other than those affiliated to the four schools furnish a meaningful answer to a problem, they could be accepted for the sake of avoiding difficulty and harm. This applies to the issue of divorce, as possibly to several others.
The issue of triple Talaq is a very sensitive one. On the one hand are traditionalist Muslim scholars who wrongly regard even the slightest deviation from the opinion of their school as unlawful. On the other hand are the thousands upon thousands of Muslim women whose lives are being destroyed under the evil effects of a particular method of divorce. It is incumbent upon Muslims to find a balanced solution to this in accordance with the teachings and spirit of Islam and thereby protect Muslim societies from corruption and confusion.
Muslims must take initiatives for the reform of the practice of Talaq. This reform needs also to happen at the level of laws, too. Many Muslim-majority countries have reformed their laws in this regard, considering three Talaqs in one sitting to be just one. The Indian Muslims must come forth as well to support this sort of reform. They must realise that it is essential for their own welfare.
Waris Mazhari is a graduate of the Dar ul-Uloom Deoband. He did his Ph.D from the Department of Islamic Studies, Jamia Millia Islamia, New Delhi, and is presently teaching in the same Department.
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