By Ammar Bakhsh:
Justice Markandey Katju has bravely stood by many Indians to raise his voice against the issue of ‘Triple Talaq’ among Muslims. Debates, on television or otherwise, that have tried to address this issue don’t give a clear picture of what the law actually is. Muslim understanding of divorce has jeopardised the lives of Muslim families and especially Muslim women. The laws governing divorce certainly do not hold up to the claim that the fundamental unit of a Muslim society is the institution of a husband and wife as is generally claimed. This sorry state is something that the Bollywood classic ‘Nikaah’ tapped into, which only looks at the problem from the view of the elite. There are almost 2258 registered court judgments under the category of ‘Muslim Divorces’ as per the indiankanoon.org records. It is then fair to ask, is Muslim Law on divorce savage in every sense or is there more than what meets the eye.
A few years ago when I set out to discover my religion, I just couldn’t understand it. The current prevalent narrative of Islam is very blunt and daunting to understand for a novice. This narrative of Islam has evolved over the centuries and has been open to interpretation ever since. However, Islamic Law (Sharia’h: Arabic for Law) has fossilised around its understanding by the great jurists of their age. It is their understanding of Islamic Law that is now prevalent in the Muslim world. Thus, an educated question to ask is, how does the view of a select few jurists hold sway over every Law in the Islamic tradition. It would then be right to ask, what actually is the law of divorce in Islam.
Like Justice Katju himself or other honourable jurists such as Sir John Holt or Radha-Binod Pal, jurists of Islamic Law were masters of their art. Just like Justice Katju, those jurists were and still are immensely revered among their audience, not an easy feat for a jurist to achieve. The main jurists that enjoy massive following in the Muslim word are Imam Abū Ḥanīfah, Imam Mālik ibn Anas, Imam al-Shāfī’ī, Imam Ahmad bin Hanbal and Imam Ja’far al-Sadiq. The word Imam literally means ‘leader’. Thus, these jurists are leaders or masters of the art of jurisprudence. Given their rank and fabled authority on Islamic Law, it has been hard for other jurists that were to follow to actually rethink or disagree with the views of these honourable jurists. Such is the reverence of these Imams that their jurisprudence (Fiqh) is considered part of Islamic Law.
One of the reasons of their authority is their level of convincing arguments and that their interpretation of Islamic Law was officially adopted by the Muslim governments, the most popular being the interpretations of Imam Abū Ḥanīfah. It is the Madhab (doctrine) of Imam Abū Ḥanīfah that is practised all over the Indian subcontinent and a sizable majority of the Muslim world. Thus, when a Muslim seeks divorce, the Qadhi (Judge) gives a verdict based on a similar verdict given by one of the mentioned Imams without much pondering on the case. The canon of the currently practised so-called Islamic Law is nowhere even close to what the actual law is. These are the basic issues what the critics and proponents fail to recognise and thus cannot provide an acceptable solution. This is the very reason that Allama Iqbal called for a ‘The Reconstruction of Religious Thought in Islam‘ but the Muslims took to his fancy poetry rather than what he actually had to offer.
There are differences in doctrines of the major Imams but the problem is that the Indian Law identifies the Madhab of Imam Abū Ḥanīfah as Islamic Law. This is the same law that is codified in The Dissolution of Muslim Marriage Act, 1939, and The Muslim Women (Protection of Rights on Divorce) Act, 1986. This is an uneducated stance that it takes and thus creates all this menace. The law of divorce in Islam as understood by the Madhab of Imam Abū Ḥanīfah is that it categorises divorce in terms of the mode of giving divorce and its application. It categorises divorce into three: Talaq Al-Ahsan (Highly Approved Divorce), Talaq Al-Hasan (Approved Divorce) and Talaq Al-Bidi (Innovated Divorce). Divorce, in any case, is valid and annuls the marriage.
Talaq Al-Ahsan is the Law that is prescribed in the Quran but this is not how the Ḥanīfī jurists argue in favour of it. They hold that this was the ‘practice’ during the time of the Prophet and thus becomes highly recommended rather than it being the Law. Talaq Al-Hasan is to divorce a woman thrice over a period of her three menstrual periods; this is the ‘Triple Talaq’ in its humane form, as per these jurists. The last is that of Talaq Al-Bidi in which a man pronounces three talaqs in one go. The means of notifying the divorce is of no concern. Other Madhabs differ in some ways and for a more inquiring mind, one can refer to the ‘Tafhim al-Qur’an‘ by Sayyid Abul Ala Maududi. How far is this perceived Law from actual Law in the Quran? And why does the state accept an interpretation of Law as Law?
A man has the right to pronounce his wish to divorce his wife. Thereafter, the divorce to actually come into effect, he will have to wait for a period of three menstrual cycles of his wife to clear. In that time if he reconciles with his wife he will have used one right to divorce his wife. He can under the same marriage contract divorce and reconcile once more. However, if he divorces her a third time he cannot reconcile with her anymore and the divorce will be final and cannot be revoked. This is the ‘Triple Talaq’ of the Quran that Muslims being Muslims are bound to follow.
The jurists, however, maintain that it is simply a good way to divorce. They maintain that a man can use his right to divorce in one go. Anyone with a little deliberation can observe how perverted this motion of theirs is. Furthermore, they maintain that the divorce comes into effect by any means that it is pronounced, even jokingly or under duress. The Quran allows a man to forge a new marriage contract with the same woman after he has used up all his rights, only if she is divorced again from another marriage contract. The Quran is thus free from the very concept of three divorces. On the contrary, it presents two lifelines in a single marriage contract and annuls the marriage on the third instance of divorce.
Now, since these jurists allow the use of these three rights of ‘divorce’ in one go and this is the most common if not the only practice of divorce in the Indian subcontinent, they have devised a heinous ‘way out’ to remarry that woman again. They call this ‘way out’ Halala. As per their ‘rulings’ for a woman to remarry the same man after ‘he’ has divorced her, she is to be married by way of scheme to another man. Then, for the Halala to come into effect, that man has to have sexual relations with her and then divorce her as per the prearranged scheme. Even then, since it is the right of that man to divorce her, a woman is at the mercy of that man. Some maulvis in UP, for example, are known to offer “Halala service“.
Moreover, The Dissolution of Muslim Marriage Act, 1939, allows and accepts two more forms of divorce that the Quran explicitly and profoundly prohibits and orders punishment for that man who even dares to hint the use of those methods. These are the methods known as Ilā and Zihār. There is another catch. When a man pronounces three divorces in one go, the jurists “relate” he is to be punished by flogging before the divorce comes into effect but do not enforce it in their Madhab. Such is the hypocrisy of these maulvis who not only corrupt the Quran they even corrupt the jurisprudence of their processors in letter and spirit. Accepting this law has ruined the lives of many undocumented women and children. The infamous ‘Mohd. Ahmed Khan vs. Shah Bano Begum And Ors on 23 April, 1985’ case is not even an iota of the actual problem. Thus, when Justice Katju called Islamic Law savage, he didn’t actually refer to the law of the Quran but the law as practised by the Madhab of Imam Abū Ḥanīfah.
As per the above mentioned, one must think why the maulvis don’t change when their stance is in complete contradiction to the Quranic Law. The reason they present is that once this ‘traditional‘ law is done away with, the ‘Muslim culture’ in India will be under threat. This is the only argument that the All India Muslim Personal Law Board along with the maulvis has to defend their barbaric stance. Furthermore, there are the uneducated stances of the liberalists, who behave like maulvis themselves, which want to somehow ‘update’ or get rid of this law.
The first and foremost step for the government of India is to not recognise the interpretation of Quranic Law as Law. The solution to this problem is for the government to not recognise a marriage rite as marriage until the contract is registered with them. The Uniform Civil Code in its concept is in no way a threat to the actual Quranic Law. To argue that it goes against something called the Muslim culture is absurd beyond comprehension. Furthermore, what is need is better education in Islamic Law free from the interpretation of other jurists. Our honourable Judges should have a specialised qualification in Quranic Law to stop these maulvi courts from popping up.
Ustaaz Javed Ahmed Ghamidi in his book ‘Meezan’ (Scale) has presented and explained the actual Quranic law of divorce as it is and has argued against the interpretation of our so-called prevalent Muslim divorce. In his classes, where he has taught his book in person, he narrates his own experiences of dealing with such issues. These classes are available on YouTube and specifically for divorce under the title of ‘Meezan Class – Qanoon e Muashrat – Talaq ka Qanoon’. For any serious student of Islamic Law or anyone who wants reform within the so-called Islamic Law accepted by the State, it is a must watch.
The reason to mention his views is that he has been a voice against these barbaric interpretations not as an outsider but from among the ranks of the Ulema (Scholars). Thus, his views cannot be put aside as simply those of a liberal maulvi. His attempts to clear the haze around Quranic Law are beyond commendable and must be heard. His views are what India needs to improve the lives of Indian Muslims in terms of their legal issues, at least. One must understand all the Imams were humans and, moreover, open to accept their mistakes. It is, however, the novice maulvis that appear to have become a threat. The great Imam Imam al-Shāfī’ī once said what these people don’t want to abide by:
“I am convinced about the veracity of my opinions, but I maintain they might turn out to be incorrect. Likewise, I am convinced about the error in views different to mine, but I concede the possibility that they may turn out to be right.”
The moment the Muslims of the India detach their emotions from the maulvis of India, they have a chance to reclaim their religion. One must understand that in Islam maulvis are not the source of religion and ironically don’t even claim to be. They have misused their respect and honour, especially in the Indian subcontinent over the past few hundred years. One must not confuse a maulvi for every bearded guy. Maulvi is a rather derogatory term used to describe a stubborn person who in no way wants to admit he is wrong. Along with the constant onslaught from outside, the Muslims in India feel threatened at any hint of ‘The Reconstruction of Religious Thought in Islam’. Allama Iqbal summarised the sorry state of Muslims in this couplet and hoped we can better educate our opinions:
Baqi Na Rahi Teri Woh Aaeena Zameeri
Ae Kushta-e-Sultani-O-Mullai-O-Peeri !
(Not a bit remains in you of your clear reflection of conscience!
Alas! O you victim of imperialism, of mullah‐ism and mysticism!)
Featured image for representation only. Credit: Education Images/UIG via Getty Images.