Monday, April 27, 2020

Divorce Is the Most Contested and Misunderstood Concept in Islam

By Mushtaq Ul Haq Ahmad Sikander, New Age Islam

27 April 2020

Till Talaq Do Us Part: Understanding Talaq, Triple Talaq and Khula
Author: Ziya Us Salam
Publisher: Penguin Books, India
Year of Publication: 2018
Pages: 218   Price: 399
ISBN 9780143442509

Divorce (Talaq) is the most contested and misunderstood concept in Islam. When it is misconstrued ideologically and theologically, its implementation is bound to be full of flaws and shortcomings. In the South Asian context, Talaq has been most abused by muslim men particularly a form of it known as Triple Talaq has been a matter of contention among Indian Muslims. Other South Asian countries that follow the Hanafi juristic school of thought like Pakistan has already done away with the abusive practice of triple talaq. Only the Hanafi Indian ulama belonging to both strands of Deobandi and Barelvi sects were dead against the reformation of the Triple Talaq. A lot of misinformation, myths and hoax claims were constructed around the practice of divorce in Islam, thanks to timely book by a versatile journalist and writer Ziya Us Salam, a lot of these doubts have been cleared.

The book is an attempt to understand the concept of divorce in Islam particularly in the Indian context. A huge ruckus was created earlier due to the Shah Bano controversy by Indian Ulama that pertained to providing maintenance to a divorced lady by the Supreme Court. Indian ulema under umbrella organization of All India Muslim Personal Law Board (AIMPLB) started a whole movement to get that order nullified and were successful in it. This opened a new chapter of communal politics in India and added to xeno and Islamophobia in India. Ziya through this book attempts to overcome this Islamophobia that has been constructed due to the misunderstanding of concept of Talaq both by Ulema and common people.

In his Foreword to the book, Faizan Mustafa Vice Chancellor, NALSAR University of Law, Hyderabad observes, “The Dissolution of Muslim Marriage Act, 1939, was passed at the instance of the Hanafi ulema who adopted the Maliki law. Why they refused to adopt the more rational position of other schools or follow the liberal opinion of their own jurists on the issue of triple divorce is not clear. Their failure has contributed to the current crisis.”

Now when the practice of Triple Talaq has been rendered illegal by the Supreme Court verdict, Faizan intends, “At least after the Supreme Court’s judgment, the Indian Ulema should consider adopting this alternative view and clearly declare that three divorces in one go would be counted as one pronouncement.” (P-xi). Further offering suggestions, he writes, “In my opinion, the government should make a nikahnama compulsory, which explicitly states that were a marriage to end, instant triple divorce will not be considered an option.” (P-xii)

Despite the verdict, Ziya very well observes about the noncompliance as legal orders certainly are not bound to be followed and no social reform can be expected from such verdicts, “The Supreme Court judges pronounced their decision in New Delhi, but in the small towns and villages of India, social norms are often paramount, and all law subservient to them. That explains why both dowry and the caste system continue to prevail despite strictures against both.” (P-xxi).

Divorce in Islam is permitted but despised by Allah and is to be invoked as the last resort. Quran lays down various steps before the option Talaq is chosen. The appointment of arbitrators is an important step in this process that can lead to reconciliation among the estranged spouses. It is pertinent to mention here that Prophet Muhammad (pbuh) never divorced any of his wives. Ziya very well deliberates about the concept of Halala, its Quranic injunctions and how it is grossly abused due to the flawed method of Triple Talaq. Ziya further distinguishes between different types of Talaq that include Hassan and Ahsan forms of it.

The evolution of Triple Talaq has been described evolving after the conquest of new lands, thus being circumstantial, contextual and time bound practice (P-30) that has now become permanent in some societies. But Triple Talaq in those contexts too was followed by public flogging of the husband, something that is kept oblivious by Maulanas today. “Any pronouncement of instant talaq was followed by the public flogging of the husband. It is this condition which modern day maulanas have conveniently ignored, even as they declare triple talaq a valid way of divorcing one’s wife.” (P-30).  Many Imams who stood against the practice of Triple Talaq and Halala were ostracized by the Muslim community but still they did not give up their just stance.

Halala is the most brutal and abusive practice and process that women have to go through just because of the foul temperament of their husband who utters the ill fated words of Talaq three times in one go. This practice also enumerates the ignorance of clerics and ulema about the real instructions and spirit of Islam. Ziya also engages with the question of Polygamy and equality among wives that is to be ensured. AlsoKhula, wives’ right to divorce is discussed that is a bit different than men. Also women have been granted various rights to annul marriage like LiaanKhayar ul Bulug and Talaq e Tafweez but they are not aware about it, so they rarely exercise them. The Shia Muslims adopt different strategy towards Talaq unlike their Sunni counterparts as arbitrators and clergy is involved in the process.

Ziya then writes about the Divorce practices during Mughal era and he finds them quite progressive in various aspects as Triple Talaq was absent during that time. Also he criticizes the AIMPLB for failing to draft even a model nikahnama for Muslims, though now they have come out with the instruction of socially boycotting the person who practises the triple talaq. The problem is that maulanas and ulema are not aware of the real teachings and spirit of Quran, so they end up messing up the issues and problems facing Muslims. The book also provides a brief profile of the people involved in making the ban on triple talaq a success. If the ulema will not indulge in Ijtihaad and come out with practical solutions to problems that Muslims are facing, the progressive sections among Muslims will have to take a recourse to judiciary, fight legal battles and ulama have to budge. So this verdict should be an eye opener for Muslim ulama to discard all those un-Islamic practices that have been contextual and justified by misinterpretation of Quran.

Ziya needs to be complimented for his work and as Faizan Mustafa very well observes that, “The book will be of great use for those who want to get a quick grasp over the subject. All those who want to speak, write about or understand the controversial subject of triple divorce will find this book not only handy and readable but also immensely useful.” (P-xiii)

An occasional columnist for, M.H.A.Sikander is Writer-Activist based in Srinagar, Kashmir

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