As the petition of Shahryar Bano before the Supreme Court catches media attention and others take up the cry for a ban on the practice, there are a few things that need to be said to place the matter into perspective. It is a little known fact that triple talaq or an irrevocable divorce made by three pronouncements at the same time is an extra-Quranic practice that has been evolved by interpretation by doctors of jurisprudence within certain schools of interpretation. Foremost among these is the Hanafi school, which incidentally claims the adherence of a large majority of the Sunni Muslim population of the sub-continent. The Sura’ in the Quran dedicated to the subject of divorce which is titled ‘Talaq’ prescribes the following procedure for divorce: a period of iddat of three months (or in case of pregnancy, the duration of pregnancy) has to be provided to the wife after divorce is pronounced during which it is prohibited to turn her out of the house. In fact, it is recommended that the woman should also not leave of her own accord as this reduces the possibility of reconciliation. Further, divorce can be pronounced only during prescribed periods, which must not be during the menstrual courses of the wife. The stated reason according to Abdullah Yusuf Ali, an author whose translation of the Quran into English is popular and widely accepted, is that it is a time when attraction is at an ebb for the husband as sexual intercourse is not possible. At the end of iddat, the verse says “Either take them back on equitable terms or part with them on equitable terms; and take for witness two persons from among you endued with justice, and establish the evidence before God.” (Sura’ 65:2) This is not the sole reference; the requirement of a period of reconciliation and treating wives equitably in case of separation occurs repeatedly in the Quran and is also seen in other verses on the subject. (See sura’ 2:228) Thus, the following emerge as the essential requirements for divorce to take effect:
A pronouncement (that is not made during the menstrual courses of the wife)
A period of three months of habitation in the same house to consider the possibility of reconciliation
Reconsideration at the end of this period
The final decision being pronounced in the presence of two reliable and just witnesses
If a decision has been taken to part ways, a parting on terms equitable to the wife
Contrast this with the practice of the so called “triple talaq” practiced by Muslims of the Hanafi school which is missing four of the five essential elements of divorce prescribed by the Quran. Even the timing restriction mentioned above for when talaq may not be given is not respected. A.A. Fyzee, the author of the well known treatise “Outlines of Muhammadan Law” classifies triple talaq as a bida’h (which literally translates into ‘heretical innovation’) or disapproved form of talaq which is “lawful, although sinful”. According to the author, this form of talaq is not permissible in Ithna Ashari and Fatimid laws which are followed primarily by the Shia community. Both these schools of jurisprudence insist among other things on talaq to be given in the presence of reliable witnesses for it to be valid. Mulla in his “Principles of Mahomedan Law” says that talaq-ul-biddat was introduced by the Omeyyade monarchs over a century after the life of the Prophet. He states that this form of talaq which he describes as ‘heretical divorce’ is “good in law, though bad in theology”. For a system of rules that claims its roots in theology, the very existence of such a category is a matter of grave concern.
Amir Ali, another scholar of Muslim Law who is widely regarded as an authority on the subject within the sub-continent writes that the Prophet pronounced ‘talak’ to be the most detestable before the Almighty God of all permitted things and states that “towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge.” Seen in this light, the virulent defence of a disapproved form of a detestable sinful practice by the pious ulema among the Hanafi Muslims of the sub-continent and its acceptance as the prevailing norm is ironic, to say the least.
Frankly, its just as well that the demand for abolition of triple talaq this time has come from within the Muslim community and more importantly, is being taken as an independent cause of action and is not being generalised into a demand for a Uniform Civil Code. The demand for a Uniform Civil Code, more than anything else, had stifled voices speaking up against the practice so far. It isn’t lost on anyone that the people who speak the loudest against oppression of Muslim women using this as a smokescreen to hard sell the Uniform Civil Code are right wing organisations who have no respects for the rights of their own women. Hopefully, with triple talaq having been singled out for judicial scrutiny this time and that too at the behest of Muslim women, the chances of India joining the long list of countries, several of them following sharia’h law, in regarding triple talaq as a bida’h or a heretical innovation against the grain of Islam have improved significantly.
However, before we get carried away with the idea of the Courts as saviours of Muslim women’s right to equality and dignity, let us not forget that some of the practices that are being decried as ‘innovations’ today are the result of judicial dicta which has had a significant role in the formulation of the principles of the so called “Mohammadan Law” in the sub-continent. A flair that was added by their Lordships of the Hon’ble Calcutta High Court in Ahmad Kasim Molla v. Khatun Bibi, AIR 1933 Cal 27 was that the presence of the wife or even effective communication to her was unnecessary for talaq to take effect. This ruling, which has been followed ever since, is the genesis of the practice of husbands divorcing their wives by sending SMSes, WhatsApp messages, emails and letters. This practice is also being assailed before the Hon’ble Supreme Court in the present batch of petitions. Needless to say, equally if not more important than the final outcome of this litigation will be the effect of the ground swell within the Muslim community itself, lest Shahryar Bano gains a victory that suffers the same fate as Shah Bano’s historic win.
Nizam Pasha
Note: A version of this article appeared in The DailyO in June 2016
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