ANALYSIS

In the article “Divorce a two-way street in Muslim law” (June 5, The New Indian Express) Mr. Tahir Mahmood succinctly brought out the plight of the Muslim women at the hands of the unscrupulous misinterpreters of the Quranic shariah particularly with respect to their right to divorce. Mr. Mahmood lamented the fact that a Muslim man can render his wife a stranger “by one stroke of his tongue” as opposed to the deliberately lengthy procedure of khula a women has to undergo to liberate herself from a cruel husband.

Under the present Muslim law the term talaq is exclusively used for divorce proceedings initiated by the husband whereas divorce at the instance of the wife is called khula. But the Quran has nowhere differentiated between talaq and khula. In fact, the word khula finds no mention in the Quran. Even while talking about the right of men to divorce their wives the Quran confers upon the Muslim women rights similar to men as the following verse shows; “..and women shall have rights similar to the rights against them, according to what is equitable; ….( 2:228)”

Therefore, it may not be wrong to deduce from this statement that although the Quran discusses procedure of talaq only for men the law for women is the same. Moreover, as marriage in Islam (according to 4:21) is a solemn contract (meesaaqan ghaleeza) both parties have equal rights to revoke this covenant in accordance with the Quranic procedure if the other party breaches it. Also, as the Quran is based on principles of natural justice there is no question of granting legal superiority to men on any issue including divorce. In this context, it becomes imperative to look at the procedure of divorce as explained in the Quran to have a better understanding of marital rights in Islam.

Four steps before the first talaq
(As laid down in 4: 34-35)
As a first step, when there is a marital discord, the Quran advices the husband to reason out (fa’izu hunna) with his wife through discussions. If differences persist, then as a next step, the parties are asked to sexually distance themselves (wahjuru hunna) from each other in the hope that this temporary physical separation may encourage them to unite.

And if even this fails, the husband is instructed, as a third step, to once again explain (wazribu hunna) to his wife the seriousness of the situation and try to bring about a reconciliation. In pursuance of wazribu hunna, the husband shall explain to his wife that if they do not resolve their differences soon enough, their dispute may go beyond the confines of their house and become common knowledge which may not be in the interest of both parties. This would be true because, if the dispute still remains unresolved, as a fourth step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution.

Three talaqs
(As laid down in 2:228-232 & 65:1-4)
It is only after the failure of the aforementioned four attempts at reconciliation that the Quran allows the first talaq to be pronounced followed by a waiting period called the iddah. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses (2:228-229). For women who have passed the age of menstruation the period of iddah is three months and in the case of pregnant women it is till the termination of pregnancy (65:4).

And if the parties are unable to unite during the period of iddah as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddah (2:231). Once the final talaq has been invoked the marital bond is severed and the parties cease to be of any relation to each other. However, even after the period of iddah has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced. It says, “When you divorce women and they complete their term (iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms” (2:232). In other words, after the expiry of iddah, as per verses 2:231 & 232, the parties are given the options of remarriage and permanent separation- the separation being the third and the final irrevocable talaq to be pronounced in the presence of two witnesses (65:2).

Thus, it can be summarised from the above discussion that after four serious attempts at reconciliation a Muslim husband is permitted to divorce his wife once or twice within the period of iddah to resume conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddah he can either re-contract the marriage on fresh and mutually agreeable terms or irrevocably divorce her by pronouncing the third and the final talaq. It is understood here that the woman cannot be left hanging without either being united with her husband or irrevocably divorced. The parties have to decide one way or the other within a reasonable period of time. This is clearly implied in the verse 2:231 which says “…but do not take them back to hurt them or to take undue advantage. If anyone does this he wrongs himself.”

However, to emphasise the sanctity of the marriage tie and the enormity of breaking it for frivolous reasons, the Quran warns that once the parties choose to separate after the expiry of the iddah, they cannot entertain hopes of marrying again unless the wife takes another husband and he divorces her (2:230). It is understood here that a divorce may result only if the new husband has serious differences with his wife, and in the rare event of such differences cropping up, he is required to follow the Quranic procedure of divorce as discussed above.

Step by step summary of the Quranic procedure of talaq
1. Husband and wife to reason out through dialogue……………..fa’izu hunna
2. Temporary physical separation………………………........……… wahjuru hunna
3. More convincing to effect reconciliation…………………......……wazribu hunna
4. Arbitration
5. First talaq followed by iddah
6. Options within iddah - 2nd talaq or resumption of conjugal relations without re-marriage
7. Options after iddah - Re-marriage or final separation through third talaq.

It is therefore clear that the concept of instant triple talaq is alien to Islam as it goes against the very spirit of the procedure of divorce laid down in the Quran. Even the Prophet when he was informed about a man who gave three divorces at a time was so enraged that he said, “Are you playing with the Book of Allah who is Great and Glorious while I am still amongst you?”(Mishkat-ul-Masabih).

Furthermore, in the absence of any initiative from Muslim theologians to abolish it, courts in India are forced to uphold the validity of triple talaq on the principle of stare decisis declaring the practice to be “good in law though bad in theology.” The precedent cited is the Privy Council Judgment in the case of Aga Mohammad Jaffer vs. Koolsom Beebee [(1897) 25 Cal.9,18,24, IA. 196,204] wherein it was held that it would be wrong for the courts to put their own construction on the Quran in opposition to the express ruling of commentators of “such antiquity and high authority.” In the light of the aforementioned arguments the All India Muslim Personal Law Board is hereby requested to recognise the fact that a Muslim husband is not entitled to pronounce even one talaq without having first exhausted the four reconciliation attempts mentioned in 4:34-35. The Board must also immediately outlaw instant triple talaq and delegitimise unilateral divorce proceedings without the intervention of a judicial authority to safeguard the rights of both parties.

(The writer is a Chennai based peace activist and a student of comparative religion. He can be reached at faizz@rocketmail.com)

The Prophet (Pbuh) cherished Khadeejah’s memory for the rest of his life. This manifested itself mostly in the way he treated her friends.  He inquired after them and would send gifts to them.

When the Prophet (Pbuh) lived in Makkah, he had one wife, Hazrath Khadeejah. They lived happily together for 25 years. After her death, the Prophet lived 13 years during which he married several women. But none could erase the memory of Khadeejah or detract from the loyalty he felt towards her. He remembered her at all times, speaking highly of her on every occasion. This might have made some of his wives, particularly Ayesha, feel jealous. Ayesha reports: “God’s Messenger hardly ever left home without remembering Khadeejah and praising her. One day he did so and I felt very jealous. I said to him: ‘She was only an old woman whom God has substituted for you by a better one.’ He was so angry that his forelock was shaken. He then said to me: ‘Certainly not. God has not given me a better one: she believed in me when other people disbelieved; she acknowledged the truth of what I said when others accused me of lying; she was generous to me with her wealth when others were not; and God has granted me children through her, but not through my other wives.” (Related by Al-Bukhari and Muslim). When she heard this, Ayesha recognised Khadeejah’s standing and never said a word against her.

The Prophet cherished Khadeejah’s memory for the rest of his life. This manifested itself mostly in the way he treated her friends and those who had anything to do with her. He inquired after them and would send gifts to them. If he had a sheep slaughtered, he would send some meat to her friends. Once an old woman visited him and he was so kind to her. When the woman had left, Ayesha asked him about that. He said: ‘She used to visit us at Khadeejah’s.’ Another woman called Zufar was the recipient of regular kindness from the Prophet simply because she was a hairdresser who attended to Khadeejah’s needs.

One day in Madinah a woman called Nafeesah bint Munyah visited him. She was one of the Muslims who migrated from Makkah. He welcomed her warmly and was so delighted to see her. He even reminded her that she was the one who facilitated his marriage to Khadeejah. Indeed, Nafeesah was Khadeejah’s friend. When Khadeejah recognized the sort of noble character Muhammad had, she asked Nafeesah to be the go between so as to bring about their marriage. She handled that task in an admirable way.

One day the Prophet was at home when he heard a woman seeking admission to come in. Her voice was akin to Khadeejah’s and he was shaken. He then said: ‘Let it be Halah, my Lord.’ Halah was Khadeejah’s sister, and in fact she was the one visiting him at the time.