The Supreme Court is hearing a petition on triple divorce wherein the practice is pitched to be unconstitutional and against fundamental human dignity.
Media has played a significant role in making it ‘Muslim women versus Muslim community’ narrative.
Politicians behave like messiah to score electoral brownies before declaring that the issue must not be politicized. The All-India Muslim Personal Law Board (AIMPLB) has been unreasonably sticking to the legal validity of triple divorce under the Muslim personal law.
With so much going on, it becomes imperative to assess the position of triple divorce in classical Islamic jurisprudence.
In Islam, the hierarchy of sources of the Muslim Law (usul-al-fiqh) is in the following order:
Let us try to jurisprudentially locate triple divorce in these sources:
Procedure of divorce is the one of those few legal injunctions in the Quran that has been repeated multiple times. There is not a single verse in the Holy Book that sanctions triple divorce as an approved method. In fact, Chapter 2 (Verses 228-232), Chapter 4 (Verse 35) and Chapter 65 (Verses 1-7) of the Quran clearly lay down the procedure that is expected to be followed by Muslims. The procedure includes empanelment of arbitrators from both the sides before the divorce is pronounced, cooling-off period of around three months, and just and fair treatment with wife during those three months. The limit of divorce initiated by the husband for one wife is capped at three.
One of the arguments of the AIMPLB (All India Muslim Personal Law Board) is that the Quran nowhere says if the divorce is given three times in a single meeting, it will not be effectuated. This argument suffers commonsensical fallacy precisely for the reason that silence on the invalidity of three divorces does not imply its legal validity.
The sheer fact that the Quran has laid out a detailed step-by-step procedure in the above mentioned verses is enough to establish that intention of the legislature (God in this case) is to prescribe a mandatory procedure.
There are several sayings of Prophet Muhammad (pbuh) available on the subject. At one instance, the Prophet stood up in anger when he heard that someone gave triple divorce to his wife (reckoned as a pre-Islamic practice) and exclaimed that fun is being made of the Book of Allah even when he is present among his people (Mishkat-ul-Masabih).
At another instance related to lady Rukanah bin Yazid, the husband was asked to take back his wife after he pronounced triple divorce. Then, in one of the narrations by Ibn Abbas (companion of the Prophet), the practice of triple divorce was not present during the time of Prophet and the first Caliph Hazrat Abubakr (Sahih Muslim, Book 9, No. 3491). However, as an administrative measure, to curb the frequency and abuse of divorce-related arbitrary customs prevailing since pre Islamic era- Hazrat Umar, the second Caliph enforced triple divorce. But he would lash those who continued practicing it as a matter of punishment. So something that was supposed to be temporary was made permanent by few; and thus the anomaly of “bad in theology but good in law” took birth.
In his work Understanding the Islamic Law of Divorce, Professor Furqan Ahmad writes that triple divorce emerged during the second Islamic century, when Omayyad rulers found that the laws “imposed by the Prophet on the facility of repudiation interfered with indulgence of their caprice and endeavored to find an escape from the strictness of law”.
He further notes: “It must be noted that it was not Islam, but Omayyad practices that gave validity to these divorces.”
Unfortunately, these findings are not easily available to common people who generally decide their personal matters under a strong influence of religious leaders in India.
Ijma is the unanimity of scholars on a certain legal issue. When the measure of Hazrat Umar was temporary and administrative, it can only qualify as a temporary ijma.
The permanent ijma, according to the Islamic law, is that of the era of Hazrat Abubakr and Hazrat Ali (the fourth Caliph of Islam). As for jurists, Sunni jurists categorise triple divorce as talaq-e-biddat, which means an innovation. Their logical constraint was thar if the Caliph had at some point validated triple divorce, then they cannot hold it to be totally invalid. Therefore, they kept it in the category of “innovation” and not the law per se. Further, Shia jurists have never considered triple divorce as a valid divorce. In fact, the main Shia jurist- Imam Jafar al Sadiq was the teacher of Imam Abu Haneefa, the Sunni jurist. Both of them differed in their positions on triple divorce with Imam Jafar totally negating it. Succeeding jurists such as Imam Malik, Imam Shafi and Imam Hanbal concurred with Imam Abu Haneefa. Later on, among the prominent Sunni jurists, Ibn Taymiyyah and Ibn Qayim completely negated the validity of triple divorce in entirety, calling it totally forbidden under the Quran.
Sir Abdur Rahim has given two qualifiers for any ijma to get established:
Hence, it can be technically concluded that there is no ijma on the issue of triple divorce. But creation of the office and rendering finality to the schools of law has led the Muslim community into the stagnancy driven by imitation (Taqlid) i.e. following jurists as it is and making absolutely no change in their rulings. What is rather needed today is the use of ijtehad (independent juristic reasoning) keeping in mind the society and the primary sources of Islamic Law – The Quran and Hadeeth.
Solutions for the Muslims
In the compilation of Muhammad Iqbal’s lectures in the book form titled- Reconstruction of Religious Thoughts in Islam, Iqbal calls for a balance between permanence and change. According to him, eternal has its own role since it gives us the foothold in the world of the perpetual change. On the other side, tendency to overemphasise the false reverence of the past, as manifested in the legists of Islam in thirteenth century and later, is contrary to the inner impulse of Islam. Iqbal cites with approval Imam Ibn Taymiyyah’s approach and establishes that ijtehad, the independent reasoning of jurists of their times, is the required principle of movement required to bring about the change within the overarching permanence. Finality of schools was thus rejected by Iqbal.
It implies a deductive analogy after reading Quran and Hadeeth together. This analogy is applied to develop new injunctions according to the new circumstance. Today’s jurists and Islamic scholars in India can use well established principles of justice as a matter of legal technology. Quran is the highest depository of Islamic norms. Anything that is contrary to the Quranic law should be set aside to the extent of conflict and repugnancy (quite similar to Article 254 of the Constitution that renders the state law invalid to the extent it is repugnant to the Union law). The hadeeth (that does not have trustable chain of narration) or a juristic assertion that may have been given in certain condition cannot juristically supersede Islamic Law as given by the Holy Quran.
The doctrine of takhayyur is discussed extensively by Professor Furqan Ahmad in his book Triple Talaq: An Analytical Study with Emphasis on Socio-legal Aspects. It advocates the eclectic choice that must be opted in case there are different opinions of jurists on the same issue. That is to say that a lenient position among all the schools can be adopted and rigid position can be ignored. In case of triple divorce, nothing stops the Muslims from adopting the position of Imam Jafar al Sadiq or Imam Ibn Taymiyyah.
Justice Krishna Iyer had once observed: “The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The statement that the wife can buy a divorce only with the consent of or as delegated by the husband is also not wholly correct. Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.”
It is time that members of the AIMPLB who command the masses also deploy tools of reconstruction of Islamic jurisprudence such as ijtehad and takhayyur to ensure a just application of Muslim personal law.