The Supreme Court, yesterday, passed a historic judgment, striking down the practice of instantaneous triple talaq and deeming it unconstitutional and going against the basic tenets of the Quran. The hard-fought case reached its fruition after years of petitioning and campaigning by Muslim women’s rights activists. The Court heard seven petitions, five of which were filed by women who had been victim to instantaneous triple talaq. The petitions were opposed by the All India Muslim Personal Law Board (AIMPLB), which has been protecting the institution of triple talaq since 1937.
Zakia Soman, the founder of Bharatiya Muslim Mahila Andolan, and a petitioner in the Supreme Court case, said in an interview with Feminism in India, that the practice of triple talaq is not mentioned in the Quran.
In this article, I delve into what exactly the talaq (Islamic divorce) entails and its Quranic validity.
What Does The Quran Say?
According to reputed and authentic Hadith, the Talaq is one of the most disliked acts that a believer can perform. Islam tolerates Talaq by making provisions for it under highly unfavourable conditions only as a last resort.
In the words of Prophet Mohammad, “Of all the lawful things, divorce is the most hated by Allah.”
There are three kinds of Talaq that are being practiced in the Muslim society: Talaq-e-Biddat, Talaq-e-Hassan and Talaq-e-Ahsan. Only the latter two find relevance in the Quran.
Biddat means innovation in religion, and is unacceptable in Islam, a religion that has laid down guidelines for the world to follow till the very end of time. The Quran promises to be relevant without a single change in it till the end of time. Now, as the name suggests, Talaq-e-Biddat is the kind of Talaq which is not sanctioned in the Quran. It is also known as instantaneous or irrevocable Talaq.
Talaq-e-Ahsan is usually considered the best way to approach divorce, and has been derived from the Quran. It is considered most appropriate because a husband can revoke the Talaq after the first utterance, any time during the waiting period (Iddat) which is the span of three menstrual cycles of his wife (three months). Therefore, the husband has enough time to realize if he has been mistaken, and thus Talaq-e-Ahsan grants the couple a good amount of time for reconciliation.
In this form, the word, ‘Talaq’ is to be said only once (another reason for its high regard). In Talaq-e-Hassan, the word ‘talaq’ is to be uttered thrice, once after each monthly menstrual cycle of the wife. The husband is free to revoke his first two utterances, but with the third declaration, the Talaq becomes effective and the marriage is dissolved.
A Biddat Talaq becomes final as soon as the words have been uttered and the marriage becomes completely dissolved. This form of Talaq is usually followed by Sunni sect of Muslims, but is not recognized in the Shia sect. No verse in the Quran validates instantaneous triple Talaq.
No verse in the Quran validates instantaneous triple Talaq.
The fundamental issue still lies in the fact that while men can refuse to ‘grant’ Talaq to a woman, a woman has no say when a husband wants to Talaq her. So in the case of a woman initiating a Talaq, it becomes mandatory for it to be consensual (unless she has put a clause in her marriage contract) but alas, when a man decides to leave his wife he only has to file for Talaq, or worse, just say it thrice.
How Did The Dispute Arise?
The dispute over Talaq-e-Biddat began in the time of the second Islamic caliph, Hazrat Umar. According to the Sahih Muslim, 1482 (highly regarded undisputed Hadith – Imam Abu Da’ud), during the Prophet’s time, and during Hazrat Abu Bakr, the first caliph, and for a time period of two years, three Talaqs at one instance were considered a single Talaq.
during the Prophet’s time,three Talaqs at one instance were considered a single Talaq.
It is said that Hazrat Umar, the 2nd khalifa had for some time allowed Talaq-e-Biddat, but later reinforced the proper Talaq because men had started to misuse Talaq, and began to take the elaborate procedure very casually. The evil seeds of this practice were thus sown.
Conditions For Rightful Talaq
A talaq will become invalid in case the husband is intoxicated, is in extreme anger, is not said out of free will or is abnormal and cannot differentiate between wrong and right.
Huqooq (Rights) Of Women
A woman has the right to divorce her husband unilaterally with immediate effect if she has mentioned this clause in her Nikah-nama (marital document). This is called Talaq-e-Isma. A number of clauses can be put by the woman during the time of her Nikah, which will hold legal value because Islamic marriage, unlike Hindu marriage which considers it a sacramental bond, is considered a legal contract. However, the woman has to specifically invoke this clause for it to be valid. Most women are unaware of this clause and thus do not invoke it in their nikahnama. By default, only a husband is given the right to divorce his wife unilaterally.
By default, only a husband is given the right to divorce his wife unilaterally.
If she has not mentioned this in the marital contract, she can go to the Qazi (judge) and ask him to nullify the marriage. But in this case, she has to provide proof of her husband’s ill-treatment of her. In the former case, she can divorce the husband for reasons that she can choose not to disclose.
The groom is legally required to pay a certain amount as Mehr to the bride during the Nikah. In consequence of a divorce, he’s liable to pay the bride that sum of money. This is done to ensure that the groom does not take divorce lightly.
In case the wife is pregnant, the waiting (Iddat) period automatically shifts till the birth of the child.
If the woman hasn’t written a clause of unilateral divorce i.e. Talaq-e-Isma or Talaq-e-Tawfid in her Nikahnama, she is compelled to ‘request’ her husband to give her a Talaq. The question is, how many women in India are aware of their Islamic rights? They’re constructed in a way which by default favours men, and for women there are *terms and conditions applied*.
Talaq-e-Biddat In Indian Society
Even though Talaq-e-Biddat finds no place in the Quran, it sure has found a permanent housing in the Indian Muslim society.
According to Wikipedia, “Triple Talaq (Irrevocable divorce) is a form of divorce that is practiced by Muslims in India.” (Emphasis on ‘in India’.) The Muslim Personal Law has been unchanged regarding this since 1937, when it was first made, until the historic judgment yesterday.
The practice of Triple Talaq has been going on in our country since a long time, even though Muslim-dominated and Islamic countries such as Pakistan and Saudi Arabia have already banned it.
It is important to understand that The Quran in itself is NOT a ‘law’ book. It is simply a guide from which laws have to be derived. Islam is a complex religion that doesn’t have an organized church or an archbishop, and hence self-acclaimed leaders sit down in groups of many to make decisions for women, without a single woman with them. (It is noteworthy too, that the Supreme Court bench that decided upon the landmark triple Talaq judgment contained Judges from five different faiths – all of whom were men).
Islam has been highly misunderstood and at times misinterpreted to suit to the advantage of people in power. It functions like any other system wherein a person in power makes rules for the rest, and of course there is a conflict of interest in most of these decisions. The appointed leaders are of course influenced by the general notion of women as a second class citizen.
the Supreme Court bench that decided upon the triple Talaq judgment was comprised entirely of men.
How Is It Unjust To Women?
Triple Talaq simply is a Talaq slapped on the face of the women. It invalidates their emotions, gives no space to their agency, and forces them into poverty and living in the society as an outcast, being a single woman living alone is usually opposed by all the might and power in Indian societies.
Not only does it harm a woman’s ‘social status’ due to the weight they put into their marital status, it also leaves her bereft of any means of survival. She gets ostracized by the society; and in most cases, doesn’t have means of livelihood to fend for herself due to society’s systematic marginalization of women and the expectation of domestic work falling solely on women. The first rule of Talaq isn’t followed, and so the question of children’s allowance and the wife’s alimony doesn’t even arise.
In India, weddings are an extravagant affair, its burden lying over the shoulders of the bride’s family. There is a societal pressure to have a grand marriage ceremony and give huge dowry to the bridegroom’s family. (Islam actually advocates simplicity and extravagant affairs are discouraged.) Hence, while the bride is usually deeply burdened, the groom enjoys a number of favours because of which if given the chance, he would be quick to divorce the woman simply through three utterances of the word and move on to remarry.
Various men may use this practice to their advantage to extract money by exploiting women. Zoya Hasan, an academic and activist, rightly said, “Muslim women are triply disadvantaged, as members of a minority, as women, and most of all as poor women.”
Dr Asma Zehra, a senior member of AIMPLB which opposed the ban on triple Talaq, said, “If one does not agree with the Muslim Personal Law Board, they are free to get married under the Special Marriage Act.” But does their social and economic condition enable them to be so well-aware?
The issue has also been politicized by the RSS and BJP, to an extent that other issues in the Muslim society such as illiteracy and poverty are being sidelined.
Mind you, banning the triple talaq is only a legislative action and will not ensure change in the society if Muslims aren’t educated about this. Here, imams, teachers and religious institutions have a role in making sure that they bring light top this issue by educating the Muslim population. Is it possible to eradicate gender issues by simply banning them? Bigamy in Hindus is still uncurbed. However, there is no denying that the judgment will go a long way in bolstering the rights and claims of Muslim women, and is a resounding victory for the Muslim women’s rights movement.
Featured Image Credit: Economic Times Blog