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Islamic Voice Logo
MONTHLY    *    Vol 11-09 No:128    *   SEPTEMBER 1997 / JAMADI UL AWWAL 1418H

email: editor@islamicvoice.com

OUR DIALOGUE


Fate of other Co-Religionist
Is Secret Marriage Permissible
Procedure for Talaq
Easy Talaq
Divorce by Woman


Fate of other Co-Religionist

Q. What is the fate of those people who donot follow Islam and live their life according to other religions?

(D.J. Patro, Bhubneshwar)

A. Allah has not created man to live forever on earth. Earthly life is but a test to judge people who are fit to fulfill the purpose of their creation in the eternal next life. Islam was prescribed for them during their stay on earth from the day one, Islam is the only religion acceptable by Allah as all the other ways are either distortions and digressions from Islam or man made isms. Man is not supposed to follow what ever he likes but submit to the will of his creator. It is like a transitional phase for a quality control test by a manufacturer before the product is sent to its final destination. The rejected goods are discarded as wastage. Similarly the rejected lot of the human beings will be thrown into hell which is the waste bin of the real and eternal life Hereafter.

God is one and therefore religion has always been one. In Arabic language it is Islam, while in earlier times it might have been called by other names in different languages. Every prophet of Allah from Adam, Noah, Abraham, Issac, Ismael, Jacob, Moses, David, Solomon, Job, Jonas, John, Jesus and others to the last Prophet Muhammad (Pbuh) preached Islam to their followers. While due to the lack of reliable recording means, the Message brought by earlier prophets, could not remain safe from being adultrated knowingly or unknowingly by interested or ignorant followers. The message sent through Prophet Muhammad (Pbuh) came at a time just prior to the scientific explosion. The followers committed to memory each and every word with precision till the foolproof methods of recording were invented a short while later. The final version of Islam revealed to the last Prophet Muhammad through Holy Qur’an is thus the only unadultrated Word of God on earth which is to be followed by every sane humanbeing who hears about it.

Islam requires belief in One God without a partner, belief in all the Prophets of Allah, belief in the Day of Judgement and the Life Hereafter besides a prescirbed code of conduct to prepare the man for the life of submission. It is not enough to be a person of good conduct without the basic beliefs in One God, all His Prophets and His Judgement. It is like a man when he is caught as a spy of the enemy, his good conduct and examplary behaviour with other human beings cannot rescue him from being caught and punished. Faithfulness with the Government of the country comes first and his conduct later. Similarly all the good deeds of a person cannot rescue him if he is not faithful to Owner of the Kingdon i.e. God.

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Is Secret Marriage Permissible

Q.1. What in the real sense Nikah (marriage) is? Is Nikha only that which a so called Kazi recites infront of every one? Or Nikah is that which a girl and boy confess with their own hearts? I hope you understand what I mean. And if they get involved in sex. Is that sex illicit or illegal? Remember, they have confessed one another as husband and wife infront of Almighty God.

(XXX, Jaipur)

A. The presence of a Qazi is not necessary for a Nikah. The ‘Khutba’ of Nikah is a recommended Sunnah which may be delivered by anyone, even by the groom himself but the ‘Khutba’ is not an essential requisite for a Nikah. However there are other conditions without which a Nikah is not valid. Nikah cannot be solemnised in secret. The Qur’an ordains: “Do not make a secret contract with them ..” (2:235). Although the above order is in context of divorced women in their waiting period, but as they are illegible for marriage after the waiting period, the order can be applied to the unmarried girls as well.

“Ibne Abbas narrated that the Prophet (Pbuh) said: Fornicators are those women who solemnise their Nikah without witnesses.” (Tirmizi)

Imam Tirmizi says, “In this regard there are also narrations of Imran Bin Hiseen, Anas and Abu Hurairah. Sahaba (the holy companions) and Tabi’een (the companions of Sahaba) stand by this. They have all stated that Nikah is not valid without witnesses. Prior to it we are not aware of any dispute therein.” (Tirmizi, Abwabun- Nikah)

The Fiqh scholars do not permit Nikah in secret. Remember, the essence or spirit is not enough when there are conditions or a procedure prescribed for an observance. In Salat, its spirit “Taqwa” is essential but the prescribed procedure has to be gone through.
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Procedure for Talaq

Q.2. What is a correct way of pronouncing a Talaq?

(Abdul Matin Khan, Gulbarga)

A. The procedure prescribed by the Qur’an is following:
a. Appoint mediators from both sides for reproachment.
b. If the mediation fails, the man should pronounce Talaq (once) in clean days of the wife. Talaq should not be given during the days of her period.
c. He should not force her out of the house after the Talaq but care for her, should not tease or harass her and afford her maintenance till the completion of her three normal periods (and in the case of missed periods, for three months and ten days). This is called ‘Iddat’, (waiting period) of Talaq. (The Iddat of a pregnant woman lasts till the baby is delivered).
d. During the waiting period, they should refrain from sex but if they have sex or decide for a reproachment, they can do so and they are again husband and wife. This is called Rujat.
e. If there no “Rujatie reproachment during the waiting period, then the Talaq is enforced. The woman can no longer live with him and the man should see her off in a decent manner with appropriate gifts.
f. A Hadith reported in Abu Dawood insposes the condition of Talaq and Rujat to be made in the presence of (at least two) witnesses.
g. Abud Dawood also reports Hadith which states that there is no Talaq in the state of wrath the fiq’h scholars decree otherwise on the basis of other narrations in the books of Hadith.
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Easy Talaq

Q.3. Why Talaq can be so easily given?

Dr. Isdhad H. Farooqui, Mumbai

A. If by easy Talaq you mean that the Talaq is enforced in a short while by simply pronouncing the word thrice, you may observe in the above question-answer that it is not so. Although a majority of four Sunni Fiq’h scholars opine that Talaq thus pronounced is Haram but valid and they also based their contention on some narrations in the books of Hadith but it may safely be argued that the stand of Ahle-Hadith and Ja’afri Fig’h scholars in this regard is more judicious. Muslim and Abu Dawood have reported Ibne Abbas saying that Triple Talaq of one occasion was considered as on Talaq in the Prophets and Abu Bakar’s time and during the first three years of Umar’s Caliphdom.

It is an accepted principle in Shariat that Hadiths contradictory to Qur’an are not considered correct. In the presence of contradictory narrations, those in consonance with Qur’an are acceptable and others should be rejected. It is significant that among all the procedure based laws, the procedure of Talaq is the single most detailed described procedure in Qur’an. Contravention of the procedure is not only a grave sin and a punishable crime but the Talaq is also invalidated without the proper procedure being adopted.

If by Talaq easily given’, you mean that the husband should not have a right to give divorce on his own without the consent of a judicial authority, the Law of God does not agree with you, Shariah has announced normal deterrents but has not imposed any legal binding upon it. The Qur’an advised.

..”Live with them (the wives) on a footing of kindness and equity. If you take a dislike to them it may be that you dislike a thing and Allah brings about through it a great deal of good” (4:19)

The Prophet (Pbuh) declared: “Of all permitted acts, Talaq is the most disliked by Allah”. (Abu Dawood)

There are ills in Muslim society due to acceptance of validity of Talaqs which should be invalid but there are much greater evils in other societies where a husband has no way of getting rid of his wife except murdering her or vice versa.
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Divorce by Woman

Q.1. In Islam doesn’t a woman have any right to take divorce unilaterally even if her husband is an absolute disgrace, criminal and involved in many crimes? Does she need the consent of such a person for divorce, particularly if she has been misled into marrying him and now she has come to know of his true character and criminal nature and dealings?

Md. Tariq, Hyderabad

2. Is being the wife of a drunkard a sin and what is the way of out of such a marriage for the hapless woman? The man was a drunkard at the time of marriage, which the man’s parents hid from the mother of the girl, a widow. The man’s parents also hid his real occupation, that of Kalasi with a criminal record. The parents of the man also hid the fact that their son already had a non-Muslim woman who has borne him two sons. The Muslim girl works and the in-laws snatch her entire salary leaving her just enough for her bus fare and for fees for her son. The drunkard beats her everyday and even in the morning before she leaves for office. He does not give her any money for anything. The marriage was in 1990. Is such a marriage void because of fraud? what must she do to cut the gordian knot?

S.Mumtaz : Coimbatore

A. The surest way of getting out of such situations is foregone by the girls at the time of their marriage itself. The girl or their parents these days should insist on Tafweez-e Talaq at the time of their Nikah. Tafwee-ze-Talaq is a written agreement in presence of witnesses at the time of Nikah that the wife would be subjected to a single Talaq whenever she pronounces taking a Talaq. The wife in a marriage under such agreement would automatically get a Talaq whenever she pronounces it. This remedy at this juncture is not available to the women in question. The marriage is a contract and if it is proved that one of the parties had acted fraudulently, a Qazi, or a Mufti of Darul-Ifta should annul the contract on woman’s appeal after giving due time to the offender to mend his ways, he is not found to do so. But the difficulty is that normally it cannot be proved even after a short while of marriage that the girl or her parents were deceived at the time of marriage.

A Qazi and a Mufti heading a panel is empowered to effect a separation on many other counts also but usually they act so in cases of impotence of the husband or his refusal to provide the wife the maintenance ( If she has no other means of supporting her ) but not for the crimes in questions. In my opinion the wife of a perpetual sinner of the nature in question should get relief of separation by a Qazi or a Mufti heading a panel, in the light of the following verse of Qur’an: “ Women impure are for men impure and men impure for woman impure, and woman of purity are for men of purity and men of purity are for women of purity..” (24:26)

The aggrieved women in question may apply for the annulment of marriage to the offices of Imarat-o-Shariah of their respective areas if such institutions exist there and the Mufti there, are known to be dynamic persons in matters of redressals. Alternatively they may apply to “Darul-Ifta, Darul-Uloom (Waqf), Deoband, Distt. Saharanpur, U.P,” giving details of their circumstances and also giving references of the above verse of Qur’an.

Even if the case is not fit for Faske-e-Nikah (annulment of marriage) in the eyes of the religious authority, they can always resort to an appeal for ‘Khula’ in the above courts who will mediate a separation after taking to their husbands. But for the grant of ‘Khula’, the women will have to part with some money, not more than the amount of Mehar (dowry), they have already received. If the Mehar amount has not yet been paid to them, they may have to forge it for the price of gaining separation.
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