Islamic Voice A Monthly English Magazine

August 2004 - Rajab 1425 H
Volume 17-08 No : 212
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Issues


Triple Talaq: The Ahl-i- Hadith Counter-Perspective
Halala- A Major Sin
Also Read "Talaq Travails"
Triple Talaq: Bad in Law and Theology
Too Little, Too Late

Triple Talaq: The Ahl-i- Hadith Counter-Perspective

With the refusal of the ALMPLB to condemn the practice of triple talaq, it seems the conservative ulama seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself

By Yoginder Sikand

The recent meeting of the All-India Muslim Personal Law Board (AIMPLB) at Kanpur had raised considerable expectations that the ulama associated with it, who exercise a powerful influence on Muslim opinion, would finally declare the obnoxious practice of triple talaq in one sitting to be null and void, and, therefore, illegal. That, however, was not to be. In fact, it so transpires that the question of banning the practice of triple talaq was not even on the agenda of the ulama gathered at Kanpur. Leading Deobandi and Barelvi scholars, whose schools represent the majority among the Indian ulama, see the practice as Islamically valid, and as an integral part of the shariah. Hence, they insist, the practice cannot be scrapped, as that would allegedly be tantamount to interfering with divinely revealed laws. This opinion appears to be widely shared among the ulama associated with the AIMPLB, which explains the refusal of the Board to ban the practice despite considerable public pressure to do so.

The argument that the practice of triple talaq in one sitting is an integral part of the shariah is hotly contested by a minority among the ‘ulama, such as those belonging to the Ahl-i Hadith, among the Sunnis, as well as by the Shias. This clearly points to the diversity of understandings of what precisely constitutes the shari’ah, and to element of human effort in the construction of notions of the shari’ah itself, a fact that the conservative ‘ulama themselves are reluctant to acknowledge. The refusal of the AIMPLB to ban the practice of triple talaq clearly suggests that one can hardly expect the ulama associated with the Board to take any bold step in the future that might threaten to undermine the patriarchy that is sought to be provided with a suitable ‘Islamic’ gloss. The Deobandi ‘ulama who dominate the Board are carefully groomed in a tradition of extreme patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars. Hope for reform, therefore, lies in the writings and arguments of Islamic scholars from other schools of Islamic thought and jurisprudence.

One such school is the Ahl-i Hadith, representing a small minority among the Indian Muslims. In contrast to the Deobandis and the Barelvis, the Ahl-i Hadith insist that Muslims need not be bound by jurisprudential precedent of the early ‘ulama, but, instead, should rely solely on the Qur’an and the genuine (sahih) Prophetic traditions. Although their position on a range of issues is thoroughly reactionary and obscurantist (leading Ahl-i Hadith scholars are on record as hailing the Wahhabi rulers of Saudi Arabia as representing the only ‘true’ Islamic regime in the world), on the question of triple talaq, they adopt a somewhat progressive stance, declaring the practice as unequivocally illegal.

The Mumbai-based Maulana, Mukhtar Ahmad Nadvi is a leading Indian Ahl-i Hadith scholar. In his recently published Urdu book titled Talaq: Kitab-o Sunnat Ki Roshni Mein Tafsili Jai’za ( Divorce: A Detailed Study in the Light of the Qur’an and the Prophetic Practice’), he writes that the practice of triple talaq was sternly condemned by the Prophet (Pbuh) himself. The Prophet, he says, declared divorce to be the ‘most hateful’ of things allowed by God. He then goes on to describe the method of divorce laid down in the Qur’an and enforced by the Prophet. In case a dispute arises between husband and wife, Nadvi writes, they should first try to solve it through dialogue. If this does not work, the Qur’an instructs them to appoint one arbiter each from the family of the husband and the wife, who can try and resolve their differences. Only when this fails should they take the drastic measure of divorce. In the Prophet’s time, Nadvi explains, divorce took the form of the husband uttering the word talaq three times, spaced over three consecutive menstrual cycles of the wife. In this period, the husband was to abstain from sexual intercourse with his wife, but was to keep her in the house and provide for her. In this way, the husband was given adequate time to seriously reconsider his decision to divorce. The first two talaqs could be revoked by the husband, but if the third talaq was pronounced during or at the end of the third menstrual cycle the divorce was considered final and irrevocable. If the husband had sexual intercourse with his wife before uttering the third talaq in the third menstrual cycle, the previous talaqs were nullified. Likewise, if he uttered the talaq at a time when his wife was menstruating it would not be considered as valid. In this regard, Nadvi relates that once a companion of the Prophet gave talaq to his wife at a time when she was in menstruation. On learning this, the Prophet ordered that he take back his wife, and did not recognise the talaq. Nadvi also writes that at the time of the Prophet if a man uttered the word talaq more than once in one sitting, it was considered as just a single talaq.

This being the method of divorce at the time of the Prophet, it is considered to be in accordance with his sunnat or practice, and hence is called talaq-i sunnat. Since Muslims consider the Prophetic practice as a normative model for them to follow, Nadvi says, this is the method of divorce that they should adopt. No other method of divorce, he writes, can be considered binding as that would be a violation of the sunnat. Nadvi devotes considerable attention to the practice of triple talaq in one sitting, arguing that it has no sanction in the Qur’an and in the traditions of the Prophet. Being, in Islamic legal parlance, a bidat or wrongful innovation, it is not part of the Prophet’s sunnat, and hence, cannot be considered as sanctioned as being in accordance with the shari’ah. Once Rukana, a companion of the Prophet, pronounced three talaqs in one sitting but later repented. He approached the Prophet for help, and the Prophet told him that the three talaqs that he had given amounted only to a single talaq, and that, therefore, he could go back to his wife if he wanted to. To bolster his argument about the illegality of three talaqs in one sitting Nadvi further adds that not a single instance is reported of such a form of talaq being accepted by the Prophet as constituting a final, irrevocable divorce.

The talaq-i sunnat method, Nadwi writes, was followed in the Prophet’s time, and this was continued under his successor and the first caliph of the Sunnis, Abu Bakr. The second Sunni caliph, Hazrath Umar (RA), too, followed this rule, but in the third year of his reign he is said to have modified it and to have made three talaqs in one sitting as legally binding and as constituting an irrevocable divorce. If the couple divorced in this fashion wanted to reunite they could only do so through by resorting to what is called halala: the woman would have to marry another man, this marriage would have to be consummated, the woman would have to take a divorce from her second husband and only then could she remarry her first husband. The ‘ulama who continue to insist on the legality of this method of talaq, and who also sanction the practice of halala, rely essentially on this decision of ‘Umar.

As a Sunni, Nadvi does not challenge Umar’s decision directly, but in order to argue that this method of divorce has no sanction in Islam he insists that this innovation was simply Umar’s own personal opinion or ijtihad, which cannot be held to supersede or overrule the explicit commandments of the Qur’an and the Prophet on divorce. He argues that Umar intended this modification to be only a temporary measure, and simply as a means to address a novel situation that had arisen in his time when men were misusing their prerogative to divorce their wives. It was, he writes, in order to stop men from abusing their right to talaq that Umar decided to make three talaqs in one sitting as a final, irrevocable divorce. By doing so, he intended to warn men of the grave consequence of the break-up of their families if they misused their right to divorce. Umar’s ruling was thus intended to protect women, rather than harass them, although this ruling is today being used precisely to serve the latter purpose. Nadvi insists that this constitutes a flagrant violation of Islam, and here quotes the Prophet as imploring for God’s wrath on those men who misuse their right to divorce.

Nadvi writes that Muslims must accept the sunnat of the Prophet and the practice of Abu Bakr, rather than ‘Umar’s opinion, on the matter of talaq. The Prophet’s sunnat, and not that of his caliphs, has normative authority for Muslims, and if any of the caliphs departed from the Prophet’s tradition, Muslims must follow the Prophet and not the caliphs in this regard.

The conservative ‘ulama, Nadvi observes, depart from the sunnat of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that imfringe on the rights of Muslim women. Thus, he notes, many ‘ulama (and these include most Barelvis and Deobandis) insist that talaq uttered by the husband while drunk or while asleep, in a fit of anger or while under coercion, is binding. This, Nadvi insists, is completely at odds with the teachings of the Prophet. He writes that talaq given under coercion has no recognition or validity, for the Qur’an explicitly lays down that there can be ‘no coercion in religion’. Just as if a person is forced to utter ‘words of infidelity’ (kalimat-i kufr) he is not considered to have become a disbeliever, or if a non-Muslim is forced to utter the Islamic creed of confession he is not considered as a Muslim, so, too, if a man is coerced into pronouncing talaq, it has no validity in law. Similarly, Nadvi writes, if a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses. To back his argument he refers to a Qur’anic verse which warns people not to pray while drunk, and to worship only when they know what they are saying. This implies, he says, that God does not regard a drunken man’s utterances of any value. Similarly, using the same logic, Nadvi opposes the argument of those ‘ulama who claim that talaq uttered in a fit of anger, when the man does not know the consequences of what he is saying, is binding.

On the question of halala, too, Nadvi stiffly opposes the Deobandi and the Barelvi ‘ulama. He writes that the practice is abominable, and goes so far as to equate it with adultery (zina). He says that it has no sanction whatsoever in Islam, quoting the Prophet as having invoked God’s anger on those who engaged in the practice. He adds that there is an urgent need to promote popular awareness about halala and its seriously deleterious consequences, especially for hapless women who are sometimes subjected to this practice.

The practice of talaq-i bidat and the associated practice of halala, Nadvi writes, are sought to be legitimised by influential sections of the ‘ulama by evoking the notion of jurisprudential precedent. They claim that since the founders of the schools of Sunni jurisprudence, and several of their followers, upheld these practices, they cannot be rescinded. This, indeed, is the position taken by most Deobandi and Barelvi ‘ulama in India today. Nadvi stiffly opposes this argument, arguing that the founding imams of the four schools never claimed infallibility for themselves. Indeed, he adds, they went so far as to insist that if any of their opinions violated the Qur’an and the genuine hadith, they were to be rejected, and the latter were to be followed in their place. Since the practice of accepting triple talaq in one sitting as constituting a final divorce and the associated practice of halala violate the Qur’an and the genuine hadith, Nadvi says, those who claim to be faithful adherents of the established schools of jurisprudence, and this includes the Deobandis and the Barelvis, must follow the position of the Qur’an and the genuine hadith in this regard if they are to be considered true followers of their imams. To refuse to do so, Nadvi asserts, is absolutely forbidden (haram). Those who continue to uphold the practice of triple talaq in one sitting and justify halala are thus, he says, ‘grave sinners’ (sakht gunehgar) in God’s eyes. Leading ‘ulama in several Muslim countries, such as Saudi Arabia, Qatar, Kuwait, Egypt, Sudan and Syria have outlawed triple talaq in one sitting and halala on Islamic grounds, and Nadvi insists that there is no reason why the Indian ‘ulama should not do the same.

Another Indian Ahl-i Hadith scholar who has written on the vexed issue of triple talaq in one sitting is the Kuwait-based Hafiz Muhammad Ishaq Zahid. In his Ahl-i Hadith Aur ‘Ulama-i Harimayn Ka Ittefaqi Ra’i (‘The Consensual Opinion of the Ahl-i Hadith and the ‘Ulama of the Holy Cities’), Zahid makes much the same argument as Nadvi. He adds that Umar’s opinion has no legal status since Umar himself later revoked it. On the question of the alleged ‘ijma of the sahaba on ‘Umar’s ruling, he follows Nadvi in dismissing this claim, and goes so far as to label it as ‘baseless propaganda’. He writes that even the conservative ‘ulama who claim an ‘ijma of the sahaba on ‘Umar’s opinion agree that prior to ‘Umar there existed an ‘ijma on Abu Bakr’s opposition to triple talaq in one sitting and on his insistence on the talaq-i sunnat method. Zahid, adds, the fourth Caliph of the Sunnis, Hazrat ‘Ali, did not accept ‘Umar’s ruling on triple talaq, and hence the alleged ‘ijma cannot be said to have been accepted after ‘Umar as well. In actual fact, says Zahid, ‘Umar’s decision was his own personal ijtihad, not a legal order based on the shari’ah. The ijtihad of a person is not binding on anyone else, and it has no validity if it goes against the explicit commandments of the Qur’an and the genuine hadith. Furthermore, a person’s ijtihad cannot be regarded as permanently binding, for a rule derived from ijtihad changes with change of time or place ( ), and lacks permanent status, unlike the Qur’an and the sunnat of the Prophet. For these reasons, Zahid writes, the ruling of ‘Umar has no legal binding. Instead of following it, Muslims must follow the method of divorce laid down in the Qur’an and enjoined upon by the Prophet.

The Ahl-i Hadith are not alone in their opposition to the stance of many Deobandi and Barelvi ‘ulama and the AIMPLB on the question of the practice of triple talaq in one sitting. Numerous Muslim reformers have lent their voice to the demand that the practice be outlawed. Yet, blind adherence to the established schools of jurisprudence as well as deeply entrenched patriarchy continue to pose a major hurdle in coaxing the conservative ‘ulama to agree to ban the practice. As the refusal of the ALMPLB to condemn the practice suggests, the conservative ‘ulama seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself.

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Halala- A Major Sin

Marrying a divorced women in order to make her lawful for her first husband!

By M. Hanif Lakdawala

Allah Most High says:

Divorce is [to be pronounced] twice, and then [a women] is to be retained in honour or released in kindness. (Al-Baqarah 2:229)

And if he divorces her again [the third time], she is not lawful to him thereafter until she has married another husband. Then, if he [the other husband] divorces her, it is no sin for the two of them to return to each other if they suppose that they are able to observe Allah’s limits; He makes them plain for people who know.
(Al-Baqarah 2:230)

We see that a man can return to his former wife – that is, he can remarry her – after two divorces but not after three divorces, unless she has meanwhile married to another man and has subsequently been divorced by him.

Sometimes, a remorseful husband, after divorcing his wife three times, tries to arrange a marriage between his divorced wife and another man on the condition that the second husband will divorce her within a few days, preferably the very next day. He may even offer some money to the second husband for this favour. The man who is willing to do this is called a “Muhallil” that is, one who makes something Halal or permissible; the first husband is called the “Muhallal-lahu” – the one for whom it is made Halal; and the procedure is called “Tahlil” – to make something Halal. The Prophet (Pbuh) compared the Muhallil to a hired billy goat).

Abdullah bin Shareek Ameri reported that Ibn Umar was asked for a ruling on the following situation: A man who was married to his cousin divorced her irrevocably (i.e., for the third time), but was then sorry for it and wanted to remarry her. Another man had come forward to do Tahlil for him. Ibn ‘Umar then replied: ‘Both will be adulterers, even if they live together for 20 years, as long as he married her for the sake of making her lawful for her previous husband.’

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Also Read

"TALAQ TRAVAILS"

Times of India - July 13, 2004 Bangalore - Interview of Member of all India Muslim Personal Law Board - Uzma Naheed.

the Fazee Formula Reforming MPL in India, By: Yogindar Sikand

Times of India July 15, 2004 Bangalore

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Triple Talaq: Bad in Law and Theology

The concept of Triple Talaq is alien to Islam as it goes against the very spirit of the procedure of divorce laid down in the Quran.

By A. Faizur Rahman

When the executive committee of the All India Muslim Personal Law Board met in Kanpur on July 4, it was widely expected that triple talaq would be proclaimed un-Islamic and its abolition recommended. It was not to be. In a classic exhibition of equivocation, it was declared after the meeting that “law alone cannot ensure reforms” and that the Board would try to create awareness in the community on the issue of divorce and persuade the Muslims to abide by the Shariah.

It is surprising that the Board could issue such an evasive statement when it was clear that what was being debated was not the religious education of Muslims, but a matter of law. The question before it was whether triple talaq as practised in India today was in accordance with the teachings of the Quran and the authentic traditions of the Prophet (Pbuh).

The truth is that triple talaq in its present form is totally anti-thetical to the spirit of the Quran. Interestingly, even the hardcore Hanafis among the Muslim clergy who support triple talaq consider it a great sin, but legally valid. The question is, how can a great sin be legally valid? Nevertheless, a careful study of the Quran will show that divorce in Islam is allowed only as a last resort and under exceptional circumstances when all means to effect reconciliation have been exhausted.

As a first step, when there is a marital discord, the Quran advises the parties saying, “If you fear a breach between the two, appoint arbiters, one from his family and the other from her’s. If they both desire agreement, God will cause their reconciliation” (4:35). If both parties are unable to resolve their differences even after the intervention of the arbiters, a revocable divorce (talaq-e-raj’i) is allowed to be pronounced on the condition that at the time of its pronouncement the wife should not be menstruating and the husband should not have had any sexual relations with her.

A Period of waiting The Quran further stipulates that the revocable divorce must be followed by a period of waiting called the iddah, and not more that two divorces can be pronounced within this period, the duration of which is three menstrual courses for normal women (2: 228, 229). For women who have passed the age of menstruation, the period of waiting is three months, and in the case of pregnant women, it is till the termination of the pregnancy (65:4). If the parties are unable to re-unite during the period of iddah, the final irrevocable divorce (talaq-e-baain) can be pronounced, but only after the expiry of the period of waiting.

Once the irrevocable divorce has been invoked, the marital bond is severed and the parties cease to be of any relation to each other. However, the Quran encourages and allows the husband and wife to re-marry even after the period of iddah has lapsed, provided the final irrevocable divorce has not been pronounced. It says, “When you divorce women, and they fulfil their term (iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms.” (2:232).

Thus, a Muslim husband can divorce his wife once or twice during the period of Iddah and revoke the same within that period to resume conjugal relations without having to undergo the procedure of re-marriage. After the expiry of the Iddah, he can either irrevocably divorce her or re-contract the marriage by mutual consent.

Therefore, it is clear that the concept of triple talaq is alien to Islam as it goes against the very spirit of the procedure of divorce laid down in the Quran, which is to give the parties maximum time and opportunity for reconciliation. Even the Prophet, (Pbuh), 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 Bee bee [(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.”

Therefore, it becomes all the more expedient for the Muslim Personal Law Board to call for the enactment of a law invalidating the practice of triple talaq, lest it be felt that the Board’s in-action and silence on the issue tantamounts to supporting the perpetuation of an un-Islamic practice which has ruined the life and career of many a Muslim woman.

(The writer can be reached at
faircon@hotmail.com)

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Too Little, Too Late

The Personal Law Board's wish-list includes appealing and persuading the community to follow the rules of the Shariat in matters of marriage.

By M. Hanif Lakdawala

The decisions taken at the 42-member national executive meeting of the All-India Muslim Personal Law Board (AIMPLB) in Kanpur last month is a classic example of too little, too late. Expressing concern over the misuse of ‘triple talaq in one sitting’, a majority of the 41-member Board’s executive committee were of the view that the procedure should be discouraged and the model Nikahnama drafted by the Board adopted instead. The Board’s wish-list includes appealing and persuading the community to follow the rules of the Shariat in matters of marriage, termination of marriage by discouraging practices like “triple talaq in one sitting”, highlighting the rights and obligations of husband and wife in marriage and enforcing the laws of inheritance.

According to AIMPLB national executive member, Maulana Salman Nadvi, this change of heart is to be brought about by the Board through an intensive campaign addressing men after Friday prayers and any other available platform.

The Board decided to launch a time-bound campaign to discourage ‘triple talaq in one sitting’ by asking Muslims all over the country to adopt the Shariat-approved talaq-.e-ehsan (one divorce in one sitting).

Member of the national executive of the AIMPLB, Naseem Iqdedar Ali, disclosed that the AIMPLB sub-committee that had been assigned the task of formulating a model ‘nikahnama’ had submitted its draft, that was discussed and inputs provided. It would now be taken up at the Calicut meeting of the national executive in December.

In another decision that could affect the lives of millions of Muslim women, the Board called for a revision of legal provisions which exclude women from inheriting agricultural property. According to Iqtedar Ali, the decision of far-reaching significance was advocating the revision of legal provisions that exclude women from inheriting agriculture property. In UP, disinheriting women from agricultural land has the sanction of the Zamindari Abolition and Land Reforms Act of 1951. If this reform comes through it would be a historical step forward as the seeds of this discrimination are in the Muslim Personal Law (Shariat) Application Act, 1937. It clearly omits “agricultural land” from the definition of “Muslim Personal Law (Shariat) Application Act of 1937.

Another significant decision taken in the meet was advocating the establishment of Darul Quzas, a sort of family courts, for the settlement of family disputes according to Shariat laws. It has been decided to promote these courts by meeting the Central Law Minister, Hans Raj Bhardwaj, seeking legal powers for them.

Another woman general member of the AIMPLB, Rukhsana Lari, said that while a Darul Quza exists in Lucknow, women do not know of its existence nor do these courts have the power to implement their decisions. Disclosing the ineffectiveness of women members on the general body, she said “we rarely get a chance to speak”. She attended the last meeting on the assurance that she would be given 30 minutes to air her views.

Irrespective of these decisions by the AIMPLB, the ground reality is not going to change for the Muslim women as the board does not have the time nor intention to take up the core issues of the community. There is all round confusion about the real core issues.

Instead of totally depending on the AIMPLB, Muslim organisations and intellectuals must take the initiative of launching social reform movements and promote the Quranic way of life.

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