By Tanzeel Ahmed:
In Islam, ‘talaq’, means “I divorce you.” Many people view that a Muslim man (who is married) can dissolve his marriage at any time by telling his wife: “talaq, talaq, talaq” on his own. It is not as easy and simple as that in Islam because there are several processes that must be done as a form of responsibility from both parties according to the rules of Islamic law. Divorce in Islam is legitimate even though the Prophet (PBUH) said, “Of all the lawful acts the most detestable to Allah is divorce.” (Sunan of Abu-Dawood -2173) ‘Talaq’ in Islam is not legally valid if the husband says it when drunk or unconscious.
‘Talaq-e-Bid’ah’, which is in practice today, is permissible only in rare circumstances. An exceptional case took place during the time of Islamic leader Umar. It has been said that a person was brought before Umar for having uttered triple talaq on one occasion. Today, if anyone cited Umar in order to justify the finality of a divorce, they have to keep in the mind that this verdict will remain unenforceable for the simple reason that he does not have the power as the caliph acquired. The law of Sharia is always eternal, but a Muslim ruler has the power to make an exception to maintain the dignity of the individual in special circumstances. It will purely be temporary in nature.
If the husband and wife have differences between them, it is advised to ask for an arbitration meeting to seek reconciliation (Al-Qur’an 4:35). If reconciliation fails, he may divorce either orally or by writing, but it is necessary to present two witnesses on the occasion on pronouncing of talaq. The correct and better procedure of giving divorce prescribed by the Qur’an is taking three months to finalise it. It’s impossible for a man seeking a divorce suddenly to cast his wife aside. The Qur’an has dealt with the issue of talaq at length in chapters 2, 4 and 65, namely, Al-Baqara, Al-Nisa and Al-Talaq. If the man divorces his wife, he can withdraw his word during the month, if not he can say, “I divorce you” and they must again review the situation for the upcoming month. Even in the third month he has right to revoke the proceedings if he wants to change his decision otherwise he can repeat the statement and it becomes final divorce which is called as ‘talaq-e-ahsan’. The main motive of a wide gap is to give the husband the opportunity to revise his decision.
The only point of conflict is whether it is to be in one sitting or three waiting periods. The All India Muslim Personal Law Board should focus on the women on the receiving end in the Muslim community. The Qur’an does not acknowledge such injustice. The Board should suggest laws on the basis of all the sects in the Muslim community because if the law is made on the basis of a particular sect, it would not represent the all the sects in the Muslim community. The law should pass in order to ensure equity for women.
Triple talaq has frequently become the cause of an attack on Islamic laws and it may become the basis of a uniform civil code. But it is unfeasible to make such codes in a multicultural country where diversity survives. India is one of the few countries in the world where multiple customs and traditions are in practices. To make changes to triple talaq, there is a need for comprehensive legislation to be drafted under the guidance of the Muslim Personal Law by the ‘ulama’ (a body of Muslim scholars), Muslim intellectuals and lawyers. Otherwise, triple talaq will become the basis of the proposed uniform civil code. Triple talaq in one sitting is not the only issue of gender discrimination as many are claiming. To abolish Muslim Personal Law as a whole is arduous. But many fail to understand the plight of Muslim women even when the process takes three months. Thousands of Muslim women have suffered because of this practice so there is a need to modify this law. The board should review the practice of triple talaq.
Islam is a religion that gives women equal rights to men. When a woman wishes to divorce (‘khul’a’) her husband, she has to put her case before a body of religious scholars. They would consider it in light of the Qur’an and ‘hadith’. If they find a reasonable basis, then they would decide to part amicably. Divorce is mercy; it is not a punishment in Islam. There is a need to ensure a better understanding between both. The Prophet (PBUH) said, “the best of you is one who is the best for your family.”(Al-Tirmidhi, 3252).
My appeal to the Muslim Personal Law Board, and even Muslim intellectuals, is to initiate the drafting of comprehensive laws which should be done considering the Qur’an and Hadith.