By Ashfaq Ahmad
One of the brightest examples for selective and retrogressive interpretation of Qur’an and Sunnah by the Ulama is the interpretation of verses pertaining to talaq (divorce). While, the progressive and enlightened ulama interpret these verses from its right perspective and in such a way that the woman must not suffer the agony unnecessarily, the rigid and backward looking ulama perceive any talk of reform in this respect as an attack on Islam and their personal law. Among the major discourses in India today is regarding the validity of Triple Talaq. The ulama are not less responsible for the ongoing controversies and debates about this issue and the union government’s stand in the Supreme Court in favour of the petitioners.
It’s known to all that before Islam, the Arabs discriminated against women on a large scale; many of them used to kill their girls and at least their birth was frowned upon. The discrimination against the women was not confined to the Arab world but it was wide-spread across the globe. Unfortunately, this can be seen in India and the rest of the world even today. The women were purchased, sold and inherited by men, just like the slaves. Their rights were extremely limited. They could not inherit property; instead they were used as commodities.
Islam came as a liberating force for women; they were given equal rights, allowed to inherit property and all kinds of discriminations against them were stopped. They enjoyed the special rights insofar marriage and upbringing of children were concerned. The Muslim woman cannot be married off without her consent, she can inherit property, her husband has to guarantee her the food and life security and she is entitled to get a portion of her husband’s property.
The Muslim woman cannot be given talaq at will; her husband has to have the valid and solid reasons. To prevent any discrimination against them (when talaq becomes necessary), the Qur’an and Sunnah have made it necessary that she has to be given talaq one by one in the time span of three months during their clean period (when they are not menstruating). After the first talaq, both husbands and wife, and if need be, their relatives and friends will make serious efforts to sort out their differences. If all efforts for reconciliation fail then she is to be given the second talaq in the second month during her clean period. If all efforts for compromise once again fail then the third talaq is to be given in her clean period. Further, during these three months, she will enjoy all rights, except intimacy. After the end of three months, they can no longer remain as husband and wife. This is the right procedure for giving talaq, and as mandated by the Qur’an and Sunnah.
Islam’s whole structure stands only on the two sources: The Qur’an and Sunnah. The Prophet said: “I left among you two things you will not go astray as long as you hold fast to them: the Book of Allah and the Sunnah of His Messenger.” (Muatta Imam Malik: 1395) and any deviation from these two are unacceptable. Ijma’ul Ummah (a decision taken unanimously by ulama of the entire world- in the absence of a clear direction from the Qur’an and Sunnah) is an impossible and a farce concept. While, in the presence of the Qur’an and Sunnah, no reasoning is applicable. Insofar talaq is concerned, The Qur’an is amply clear and so is the Sunnah. The Qur’an says:
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah. But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers”. Baqara 229.
The Qur’an makes it absolutely clear that the decision for giving talaq must be taken with all seriousness and when all possibilities for reconciliation are exhausted. Otherwise, the husband’s regret will yield no fruit and he can remarry her only after an extremely undesirable procedure. It says:
“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes clear to a people who know”. Baqara 230.
To guarantee the safety and wellbeing of the divorced woman, the Qur’an further says:
“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things”. Baqara 231
And the main Hadeeth in this respect is as follows:
Narrated by Abdullah bin Umar that he had divorced his wife while she was menstruating during the lifetime of Allah’s Messenger (ﷺ) . `Umar bin Al-Khattab asked Allah’s Messenger (ﷺ) about that. Allah’s Messenger (ﷺ) said, “Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced.”. Bukhari 5251
In Islam, talaq is an undesirable act “The most hated thing before Allah is divorce”. (Sunan Abu Dawood: 2178). A husband must not divorce his wife until it’s extremely necessary for him or for both of them. Likewise, a wife must not divorce her husband until it’s compulsory. The above mentioned verses of Qur’an and Sunnah clearly indicate that the husband has to give talaq to his wife when she is not having menstruation- she is clean. The Qur’an says:
“O Prophetﷺ! When you divorce women, divorce them at their ‘Iddah (prescribed periods), and count (accurately) their ‘Iddah. And fear Allah your Rabb (O Muslims), and turn them not out of their (husband’s) homes, nor shall they (themselves) leave, except in case they are guilty of some open illegal sexual intercourse. And those are the set limits of Allah. And whosoever transgresses the set limits of Allah, then indeed he has wronged himself. You (the one who divorces his wife) know not, it may be that Allah will afterward bring some new thing to pass. (that they may come back together)”. Talaq 65.
“And those of your women as have passed the age of monthly courses, for them the ‘Iddah, if you have doubts (about their periods), is three months, and for those who have no courses (or irregular) their ‘Iddah is three months likewise. And for those who are pregnant, their ‘Iddah is until they deliver (their burdens), and whosoever fears Allah and keeps his duty to Him, He will make his matter easy for him”. Talaq 65.
During the first two talaq, there is the possibility for reconciliation and if any reconciliation is not possible then the husband has to give his wife the third talaq. After the third divorce or at the end of three months, they cannot have intimate (sexual) relationship. The main objectives of Islam seem to be: making the marriage easy and preventing the extra marital relationship; providing ample opportunity for reconciliation and to save the marriage as far as possible. Further, the wife will continue to remain in the house as a wife with all privileges and duties except the intimacy.
The above mentioned verses of Qur’an and the Sunnah make it abundantly clear that a husband should give talaq to his wife one by one in her clean period (in three months). He must not give three talaq at once or in one sitting, they must make efforts for reconciliation and they should be, if necessary, assisted by their relatives and friends. The verse 230 (of Baqara) makes it clear that one must think very seriously before giving talaq and if it has be given in a bit of anger or even for some serious problems, the husband should give talaq one by one, live together, talk to one another and try reconciliation. If all the efforts for reconciliation fail and he finally gives the third talaq, then he cannot take her back until she marries someone else, establishes sexual relation with her new husband and for some reasons he gives her talaq without any intention (to help her first husband), only then he can remarry her. This shows the seriousness of marriage and the importance to save it by all means.
This is the correct method for giving talaq. This method was adopted by the Prophet himself (and he is the only ideal for all Muslims). And this was the right method to many Companions of the Prophet, Imamas and Islamic experts across the ages. The great scholars like Ibn Taimiya and Ibn Qayyim vehemently supported this method. But there is another group of Islamic experts who rely largely on the decision of Caliph Umar and consider the Triple Talaq in one sitting as an accepted method. But, in our view, the temporary (even if it is permanent) decision of Umar cannot invalidate the verses of Qur’an and the Sunnah. One must not insist on the validity of the Triple talaq.
Islam is forever. Its basic principles, especially its believes and orders, can never change. But, Islam never opposes changes in society. Instead, it stresses on the need for change in methods and methodology, focuses on development and inclusive growth. Islam is not a stagnant religion, its society changes; it accepts the new ideas and concepts. It’s a progressive religion. It can cope with all situations in all societies, it welcomes developments. It cannot be confined to its earliest period. It has not stuck to the first half of the 7th Century AD. It is an ever changing and constantly developing system of life and it’s for all mankind; a few so-called experts cannot have monopoly over this great religion.
Amongst the major problems the religion of Islam confronts today are the rigidity of ulama and their differences of opinion, narrow mindedness of the Muslim scholars and the shortage of original thinkers in Muslim society. For several centuries, the Muslim society has been educationally and culturally backward, the Muslims of today are backward looking, they are lacking original thinking and they hold others (e.g. the West and Jews) for anything wrong in their society. There are ulama and the militant (and also terrorist) organizations which want to take all the Muslims to the first half of the 7th Century AD. They claim that the Muslims cannot have inclusiveness development until they live in that period- as if there were no wrongdoings in that period. They forget that they are living in the 21st Century, which cannot be compared with the early period of 7th Century AD in anything, except the fundamental concepts and believes of Islam. But most of these ulama, particularly in Indian subcontinent, are backward educationally, miserably lacking original thinking and are suffering from shortsightedness.
The recent controversies regarding the Triple Talaq have largely been created by the Indian ulama. Their narrow-mindedness, egoistic attitude, inability to change with time and cope with the new situations and challenges and shortsightedness are also responsible for these unnecessary controversies. As mentioned earlier, the Qur’an and Sunnah are clearly against the Triple Talaq. Many towering personalities disagree with the Triple Talaq and also here in India there is a good number of ulama who oppose it. But some of these ulama are vocal in their view, while others oppose it in private but keep silence when time comes. The actual problem seems to be the blind imitation of certain Imams and experts, albeit, they lived centuries before and had different conditions and environments.
All those who are fighting, especially the women, to get the Triple Talaq banned must be supported whole heartedly. The Triple Talaq has no place in contemporary India. At the same time, the union government seems to be trying to fish in the troubled water and might have a design to move toward the Uniform Civil Code. The Indian Muslims don’t need any codification of their personal laws, because the Shariyah has already codified them. While, the ulama must move forward and accept the Triple Talaq in one sitting as one, any attempt by any quarter to implement the Uniform Civil Code must be opposed by all means. The government cannot take away the personal laws of the minorities guaranteed by the Constitution of India.
(The writer is a Professor of Arabic at BHU, Varanasi. Opinions expressed here are personal. He can be reached at: firstname.lastname@example.org)