Divorce - Need For Change
By Asghar Ali
Centre For Study Of Society And Secularism
several cases of on the spot triple divorce have been reported in the
press. In Bihar just because wife of a person did not vote for the candidate
of his choice in the Loksabha election he pronounced triple divorce
and threw out his wife. Again just a few days ago, a husband came drunk
in Bhadrak, Orissa on 3rd June, and had a tiff with his wife and pronounced
talaq thrice but in the morning he realised his mistake and wanted to
take back his wife but leaders of the Muslim community separated them
insisting that it is irrevocable divorce and they cannot live together
as husband and wife. Besides this many cases just go unreported.
There is now report
from Kerala that members of orthodox Sunni organisations have threatened
to agitate if women are allowed to pray on Friday in the mosque. In
the girls college in Manjeri students have been praying on Friday in
the mosque on college premises. But the Samastha Kerala Sunni Students
Federation (SKSSF) has launched a public agitation against women being
allowed to pray on Friday in the mosque.
What such acts of
triple divorce or agitations against women praying on Friday in the
mosque convey to the world? Do women have secondary status in Islam?
Is it sin to pray to Allah in mosque on Friday? What sort of Islam is
this? How can Islam banish women from praying on Friday inside the mosque?
For these orthodox Muslims customs and traditions are more important
than the Qur'anic injunctions.
They do not know
that Islam was the first religion in the world to empower women and
giver them equal legal status. The Qur'an clearly pronounces equality
of sexes see verses 2:228 and 33:35. Commenting on the verse 2:228 Maulana
Azad in his Tarjuman al-Qur'an says that it is revolutionary declaration
of equality of sexes 1300 years ago. But the Muslim society under the
influence of feudal social ethos never realised this revolutionary potential
of Qur'anic teachings.
However, these old
institutions developed under different social ethos cannot work today.
The women are making fast strides in different fields of life. The extent
of education and consciousness of their rights is far more widespread
today than ever before. Even in conservative Saudi society the women
are no more prepared to accept their traditional role. Only last week
i.e. beginning 12th June 2004 seventy Saudi Arabian scholars and intellectuals
participated in the first day of third national dialogue forum in Madina
to address the rights of women in particular prompt and full delivery
of justice to women.
The overall theme
of this three -day forum is women's rights and duties and their relation
to education. Many women scholars read out papers in this forum to discuss
ways to eliminate religious extremism in the Saudi Kingdom. In Madina
the organisers hope to create an environment conducive for Saudi intellectuals
and scholars to discuss the position of women in Saudi society and to
find out the best ways to develop their status in line with Islamic
This clearly shows
there is great deal of ferment among women even in the Saudi society.
Women cannot be treated in the old ways any more. In India also Muslim
women have become more conscious about their Islamic rights and are
demanding changes in the Personal Law in keeping with the Qur'anic teachings.
As pointed out the Islamic laws in relation to women are most modern
in their approach but Muslim societies have preferred traditional interpretations
by Imams in pre-modern feudal society to the clearly worded Qur'anic
Talaq is a highly
sensitive issue as it can break years of marital relations between husband
and wife. Thus the Holy Qur'an is also very cautious in matters of divorce.
Firstly, it has adopted most modern approach to this sensitive issue.
It requires arbitration before any breach of relations. The Qur'an says,
"And if you fear a breach between the two, appoint an arbiter from
his people and an arbiter from her people. If they both desire agreement,
Allah will effect harmony between them." (4:35)
Thus through arbitration
the breach should be prevented and attempt should be made to bring them
together again as Allah desires harmony. Despite such clear Qur'anic
injunction we approve of triple divorce in one sitting and destroy marital
life in one breath. How such an act be Islamic? It is greatest injustice,
specially with women. Again justice ('adl) is so central to Qur'anic
teaching. And to throw ones wife but by pronouncing three words of talaq
is most unjust act. There are three four key words in Qur'an ? 'adl,
ihsan, rahmah and hikmah (i.e. justice, benevolence, compassion and
wisdom) and triple talaq is against all these key words. Neither it
is justice, nor it is benevolence (ihsan), nor is it compassion (rahmah)
nor is it an act of wisdom (hikmah).
All Muslims are
also not unanimous on this form of divorce. Ahle-Hadith, Hanbalis and
Shi?ahs reject this form of talaq. Even Hanafi Muslim countries like
Jordan have reformed this practice and enforced the Qur'anic injunction
of arbitration. Arbitration can and does save many marriages. The Qur'an
does not permit triple divorce at all. Three talaqs has to be spaced
over a period of three months so that husband and wife get enough time
for reconciliation through intervention of relatives and friends. Moreover
talaq can be given only when wife is in a state of tuhur i.e. purity
after menstruation. If talaq is pronounced during the period of menstruation
it will not be valid. The Prophet has ordered wife to be taken back
if the talaq is pronounced during menstrual period. Triple divorce disregards
all this completely.
Some Muslim women
have devised a standard nikahnama (marriage contract) strictly within
the Shari?ah framework and given to the Muslim personal law board a
couple of years ago so that Muslim women do not face such situations.
Since marriage in Islam is a contract such nikahnama is perfectly valid
and was approved by a great 'alim like Maulana Ashraf Thanavi. But the
personal board is hesitating to implement it. If implemented, it can
give lot of relief to Muslim women. This is very modest piece of reform
(in fact it is really not any reform or change but only a modicum of
relief to suffering women) but the personal board is hesitating in implementing
All 'ulama agree
that pronouncing triple talaq in one sitting is bid'ah (innovation)
and that bid'ah is sin and yet this sinful practice is enforced in the
name of divine law. In fact tripe divorce indeed is great sin as it
so unjust and oppressive for women. Every possible attempt should be
made to eradicate this sinful practice from our society. The 'ulama
who are guardians of Islamic law should play a leading role in this
matter. I have had discussion with many 'ulama who privately agree that
this form of divorce should be abolished but do not have courage to
say so publicly.
The personal law
board should at least launch an awareness movement educating Muslim
men about desisting from this sinful form of divorce and resort to the
Qur'anic form of divorce as clearly spelled out. I am not aware of any
such awareness movement. The Muslim men are Islamically illiterate and
do not even know that triple divorce is a sinful form of divorce and
Holy Prophet has strongly disapproved of this form of divorce. If the
members of personal law board do not have courage to abolish this form
of divorce they should at least have courage to launch an awareness
movement among Muslim men and appeal to them not to resort to such form
Maulana Ashraf Thanvi
and others had taken a bold step in 1939 and drafted the Dissolution
of Muslim Marriage Act, which gave great relief to suffering women.
Can the members of Muslim personal law board not show such wisdom and
draft a comprehensive law codifying the Muslim personal law on the lines
of the 1939 Act. It will give great and much needed relief to Muslim
However, there is
no such sign of codifying the Muslim personal law and suffering of Muslim
women continues. If Maulana Ashraf Thanvi and others could take such
bold step way back in 1939 why can't our 'ulama in 21st century take
such step? This will be not only in keeping with the true spirit of
Islam but will also go a long way in improving the image of Islam in
India. It is due to such un-Qur'anic practices that image of Islam has
suffered and the demand for Uniform Civil Code surfaces.
The Islamic law
is most progressive and in fact should become a model law for all others
if our orthodox 'ulama care to understand and implement it in its true
spirit. Maulavi Mumtaz Ali Khan, Maulavi Chiragh Ali, Justice Ameer
Ali and others pleaded for reforms in late 19th and early twentieth
century but nothing has happened so far.
Now it is for Muslim
women to acquaint themselves thoroughly with Islamic law and launch
a movement for reform and change. Women in all Muslim countries have
struggled for change and succeeded. Now, as referred to above, even
women in the most conservative Saudi society have begun to assert themselves.
It is therefore, high time that Muslim women in democratic society like
that of India struggle for reform within the Qur'anic frame-work and
win their rights guaranteed by the scripture.
That seems to be
the only way left for them. Progressive and believing Muslim men should
also come forward and support such movement for reform.