By Habeel Iqbal Taing
The “position of women in Islam” has been one of the most debatable topics surrounding Islam and Muslims the world over for decades. The issues have been varying from Hijab, Right to ownership, marriage and divorce practices. The last one, divorce, has been the most contentious of all these issues in this part of the world. The divorce of a Muslim woman has become synonymous with the practice of “triple talaq”. It has been contended and rightly so that Muslim men have used “triple talaq” as a weapon of intimidation and oppression against Muslim women. It has deprived women of their rights and position which the Holy Quran has bestowed upon them. Many Muslim women have been left to fend for themselves along with their children by their husbands owing to this whimsical use of triple talaq. Any Magistrate Court, in which proceedings for maintenance of women and children are taken up, can give us a good idea about the miseries these women are made to face. Many a time, men are seen divorcing their partner just to avoid paying a paltry sum of maintenance amount claimed by the wife.
In India, the issue of triple talaq has once again been the subject of scrutiny and generated much public heat and debate over the last few months because one Shayra Bano, a 35 year old woman from Uttarakhand, has decided to stand up against the patriarchal, anti-women, anti-Quranic and sinful practice of triple talaq in the Supreme Court of India. She has challenged its validity and prayed for its abolition, along with the practice of Polygamy and “Halala”. She has been joined by some women organisations and the All India Muslim Personal Law Board (AIMPLB) has decided to oppose her. The matter is currently pending before the Court. Going by the present climate of intolerance, polarisation and majoritarian bullying it is highly unlikely that Muslim bodies in India will stop seeing this as an affront on “Muslim identity” and thus it will be naïve to expect from them to declare the practice of triple talaq as unislamic and having no validity in law. It must be mentioned here that triple talaq has already been abolished in 21 Islamic countries the world over, including the Islamic Republic of Pakistan. They did away with it in 1961. No, I am not going to delve on which country is more progressive and liberal of the two because the women of both these countries have been getting second class citizen’s treatment.
To understand how the device of triple talaq is unislamic and must be declared a nullity in law, we must look into the basic source of the Islamic law, that is The Quran. Chapter 4 verse 35 of Surah Nisa reads as:
“If ye fear a breach between them twain, appoint (two)
Arbiters, one from his family and other from hers; if they
Seek to set things alright, Allah will cause their reconciliation:
For Allah loveth not the arrogant, the vainglorious;-‘’
It is imperative to state here that a divorce has been held to be the most detestable thing in the sight of God and has been said to shake the throne of God. However, pragmatism demanded that two people in a marriage may decide to part ways and the Quran has prescribed the way out in quite clear terms. But, unfortunately, it has been misinterpreted by men to suit their own vested interests. The Quran has prescribed that in the beginning two arbiters be appointed, one each from either spouse’s side and the two arbiters so appointed are to be given adequate opportunity to bridge the differences between the two spouses and the spouses are expected to follow the decision arrived at by the two arbiters.
Further, according to Chapter 65 verses 1 and 2, The Holy Quran says that a divorce must be pronounced during tuhr, the period between two menstrual cycles, known as the prescribed period, in the presence of two witnesses endued with justice. The “wife” is commanded to stay in the same house as that of the husband till she completes her iddat (length varies according to circumstances). The two partners can still marry each other, if they mutually agree on equitable terms (Chapter 2 verse 232). One important factor to be kept in mind is that the wife does not have to undergo Halala in such a case.
However, owing to the convenience of men, the most frequently-used form of divorce in this part of the world is the triple talaq, wherein the husband, either orally or in written form, repeats the words “talaq” three times to end the marriage instantaneously. The triple divorce was not allowed during the Prophet’s lifetime, during the first Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Umar’s time. Later on Umar (RA) permitted it on account of a peculiar situation. Needless to say that this kind of unilateral, whimsical and arbitrary power exercised by Muslim men has brought miseries upon Muslim women who have been asking for its abolition and reform.
The Jammu and Kashmir High Court has on two occasions, in the last few years, interpreted the law relating to triple talaq. One was in the year 2012, in the case of Mohammed Naseem Bhat vs. Bilquees Akhter and the other was in the year 2014, in the case of Masrat Begum vs. Abdul Rashid Khan. In the case of Naseem Bhat, Hon’ble Justice Hasnain Masoodi, held that a Muslim husband does not have absolute and unqualified power to pronounce divorce on his wife and the trial courts in J&K started to scrutinise the divorce pleas raised by Muslim men on the touchstone of this judgment, thereby virtually abolishing triple talaq in Jammu and Kashmir.
But two years later, in 2014, the High Court in the case of Masrat Begum somewhat reversed the position again. Hon’ble Justice Ali Mohammad Magray held that it is not within the competence of the Court to interpret the Quranic verses or the precepts of the Prophet without knowing the context in which they were made and it falls within the domain of scholars, who have full knowledge of the religion to interpret Quranic verses. This judgment has once again given absolute license to Muslim men to divorce their wives at their whim. Women are again at the receiving end. They are again made to realise that they are not equal partners in marriage.
As a humble student of law, and going through the verses of the Quran, the role of experts, as emphasised in this judgment is not even needed in the context of triple talaq. Why should we just not follow the primary source of Islamic law, the Quran? And why should we follow the traditional interpretations of feudal societies over the clearly worded Quranic injunctions? Moreover, if we go into the realm of “who is an expert” in the field of Quranic interpretation we may be in trouble. Would it be the government appointed grand mufti in the case of J&K? Or would it be the local mufti’s and moulvis we have? The fact of the matter is that most scholars (ulemas) unanimously agree that triple talaq is a biddahand thus it must be done away with. Ameer Ali, quoted in the judgment, has himself stated that the practice of triple talaq came into Islamic jurisprudence during the Ummayyads. Maulavi Mumtaz Ali Khan, Maulavi Chiragh Ali, Moulvi Mohammad Ali and Tahir Mehmood have all advocated for reform in this unislamic practice, but nothing has changed.
Lastly, the silver lining for the people of Jammu and Kashmir is that the All India Muslim Personal Law Board (AIMPLB) does not hold much influence here. Irrespective of what they state before the Supreme Court in the Shayra Bano case, Islamic scholars of J&K may unanimously declare (as they evolved a consensus regarding the waiting period of “half widows” to remarry in four years) the practice of triple talaq as sinful and urge Muslim husbands to desist from it.
Let Jammu and Kashmir show the way in this regard and let us give the women of this place their due rights, as ordained in The Quran. The use of triple talaq as an instrument of torture and oppression of women has to end.
—The writer is an advocate, district and sessions court, Shopian