God knows every single letter, and perhaps God will accept my excuse and forgive my stumbling

 in His bounty, generosity, munificence and excellence –there is no God but Him.

                                                               — Ibn Rushd-12th century Andalusian philosopher

 By Dr. Moin Qazi, India

The issue of triple talaq or instant divorce has engaged the Muslim mind   for several years .It refuses to die and the discussion is marked by acrimonious debates on account of which the main issues get clouded and no clear thinking can emerge.  . The Muslim clergy has refused to be drawn into discussion insisting that the issue has already been sealed by the Qur’anic edicts and it is meaningless to reinvent the wheel.

They feel that any new attempts at a fresh discourse are ill intentioned and have a misguided agenda. This is particularly on account of a  new trend of vilifying Islam, of stereotyping Islam. Most religious clerics would agree that within Islam’s legal and ethical constructions divorce is a matter to be taken seriously and reconciliation between estranged spouses is a worthy aim and protecting the marriage and family by making divorce more than an act of three vocalized sentences.The right of a man to divorce without any checks has to be constrained in the state or society’s interest in ensuring the longevity and stability of marriage.

The truth is 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)

The acclaimed Islamic scholar Ibn Taymiya rejected the traditionalist view on the “triple divorce. The  Qur’anic ontology revolves around the principles of justice, fairness and equity, and therefore, any law that contravenes or abridges the rights arising out of these standards of ethics automatically becomes unacceptable.

In fact, the Qur’an has specifically laid down a formula of a three-tiered calibrated divorce, keeping in mind human frailties. Divorce cannot be pronounced in a single sitting and must be preceded by efforts of arbitration, mediation, and reconciliation by mediators appointed by both the sides who must explore the possibility of reconciliation by resolving the issues without a compromise and impartiality so that dignity is restored to the aggrieved parties. It is a very exceptional remedy .frowned even by the Qur’an, and has to be taken recourse to only when all reconciliatory efforts fail.

Divorce has to be pronounced before witnesses and over three sittings over a period of three months. These months are to allow the couple to reflect on their relationship and not come to a hasty conclusion. During this period, the woman is entitled to her right to residence and maintenance from the husband. In case there is cohabitation during this time, the divorce would be null and void.

The Qur’an’s key agenda is “to lift from them (humanity) their burdens and shackles that were upon humanity (before)” (Q7:157) .It obviously included the protection of women from the curse of arbitrary divorce that was in vogue in pre-Islamic Arabia. Instantaneous divorce is expressly forbidden in Islam (Q2:226/227). The truth is, the institution of triple talaq deprives a married Muslim woman of her Qur’an rights of counseling, arbitration and negotiation with her husband prior to the termination of her conjugal rights that is binding on a man as her awliya (protector )(Q9:71) and qawwam(maintainer) (Q4:34). Furthermore, it gives a Muslim husband infinite power to blackmail his wife into doing anything, however immoral, or to abuse her in any way he wishes, or curtailing all her civil rights, and even forcing her to break her parental filial ties by dangling the dagger of triple talaq over her head.

The Supreme Court, India’s topmost judicial body, has decided to examine the legality of triple talaq .Opposing its constitutional position to examine an issue which many clerics feel impinges on the religious autonomy are  All India Muslim Personal Law Board and Jamiat-e-Ulema, the two mainstream organizations who overwhelmingly represent the conservative Muslim opinion and articulate the cleric’s viewpoint. Both have said Muslim personal law was Qur’an-based and not enacted by the legislature and hence was beyond the ambit of judicial scrutiny.   AIMPLB has always defended the triple talaq terming any suggestion to reform Muslim personal law as motivated and tantamount to religious interference.

The mainstream campaign against triple talaq is being led by Bharatiya Muslim Mahila Andolan (Indian Muslim women’s welfare movement or BMMA).  It is an Indian Islamic feminist organisation which brings forth the plight of the ordinary Muslim women in India who constantly live under the fear of being unilaterally divorced by their husbands. More than 50,000 Indian Muslim women and men have signed a petition demanding a total ban on unilateral triple talaq.

Several reformatory steps have been introduced in different Islamic countries to enhance the status of women after reappraisal of several misconceived cultural practices. India should take a cue from countries where progressive reforms have restored the dignity of women not through any extra-Qur’anic legislation but through resurrection of the pristine   Qur’an from the shroud of acculturations. .it is not Qura’n but it is our worn out and antiquated customs that have denied women their rightful place in society  It is time the guardians of shar’ah (corpus of Islamic laws)in India respond to the growing impulses of reform the world over . There is an urgent need foe evolving a dispute-resolving mechanism by community organizations

Seeking shelter of the shar’ah is like digging, ostrich like, our heads into the sands. We keep harping that Qur’an is progressive but that the shar’ah keeps showing the red flag .If the sunnah(traditions) on which the shar’ah is built is not in sync with the Qur’an ,it only means that we need to go back to the drawing board and start questioning our assumptions  ,trace the wedge and fix it fast .. The winds of reform are blowing hard and unless we gird our loins we will be swept away .Let us wake up and heed the call .The writing is on the wall; only our   lenses have become opaque .It is time we get a new pair so that the reality glares in our eyes and propels us to act .Better late than never.



Categories: India, The Muslim Times

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