By Umair Azmi for TwoCircles.net
A.G. Noorani added his voice to the debate of the season in his opinion piece titled “The Code vs the Talaq” (The Indian Express, December 15, 2016) laying down a ‘legal basis’ for the abolition of the ‘un-Islamic triple talaq’.
The author points out that “the Muslim law in force in India is Anglo-Muhammadan Law based on English commentaries and translations”, a claim that no one would dispute. Yet what seems to be lost on him is that similar claims hold true for the laws in most – if not all – Muslim majority countries whose Europe-inspired laws (mostly inspired by the French civil code) are regularly held up as proof of the un-Islamic nature of triple talaq. If the Anglo-Muhammadan Law contains blatantly un-Islamic features, so do those of the various muslim majority countries who variably have either an Anglo-Islamic law or a Franco-Islamic law.
Is Quran=Shariah?
Noorani follows this up with the declaration “It is not based on the Quran, the Shariah”. One could have overlooked the problematic premise if it came from a lesser writer. But from an unquestionable legal giant, one would expect terms to be used with great care and accuracy.
Contrary to the message subtly given by Noorani’s declaration, the Quran alone is not the Shariah, it is its primary source. The ahadith are (almost) equally important. In fact, the bulk of Islamic legal rulings are derived from the ahadith, not from the Quran, which has (comparably) little legal content. So whether something is Islamic or not is not the same as whether it is found in the Quran or not.
The issue of instantaneous triple talaq finds no mention in the Quran, neither in its legal affirmation nor in its condemnation. But it does find mention in a number of ahadith, and it is the interpretation and the comparable authenticity of these traditions that forms the centre of the theological debate whether three talaq at once constitutes one revocable pronouncement or three, thereby irrevocable, pronouncements.
If the absence of any mention in the Quran is taken as the standard for a ruling being un-Islamic, even the zakat slab of 2.5% would be “un-Islamic”, for whereas zakat does find a mention in the Quran, the exact proportion does not.
Why, even the method of performing the daily ritual prayers would be “un-Islamic” for no such details are found in the Quran. The divorces through the modes of talaq-e-tafwid or khula, which Noorani approvingly mentions in his article, find no mention in the Quran either. Does that make them un-Islamic?
The fiction of the prerequisite of a legal basis
The sub-title for the article is: “There is no reason to impose a Uniform Civil Code but a legal basis exists to abolish triple talaq.” Implicit in the claim is that without a legal basis, the Supreme Court would be helpless. This makes one wonder – what legal basis was needed to declare that “Hindutva is understood as a way of life or a state of mind”? Or to direct that “all the cinema halls in India shall play the National Anthem before the feature film starts” along with orders to the humble subjects to “stand up to show respect to the National Anthem”? Both these egregious examples are from the Supreme Court, and one could go on with many more; if one were to take take the High Courts into account, the list would be virtually endless. If the Supreme Court wishes to do so, it will declare it “unconstitutional”, irrespective of whether a legal basis exists or not. To believe otherwise is to live in a make-believe world.
Justice V. Krishna Iyer’s oft-quoted judgment – A study in misrepresentation
Noorani quotes two judgments, of which one deserves some comment. Justice V. Krishna Iyer’s judgment has often been cited in other judgments as well. The passage quoted in Noorani’s article is as follows: “It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage… Commentators on the Quran have rightly observed – and this tallies with the law now administered in some Muslim countries like Iraq – that the husband must satisfy the court about the reasons for divorce.”
To support his argument he quotes Dr. Ahmad A. Galwash (again quoted by Noorani), “divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting reconciliation have failed, the parties may proceed to dissolution of the marriage by ‘talaq’ or by ‘khula’.” (Dr. Ahmad A. Galwash, Ph.D, litt. D. The Religion of Islam – A Standard Book Vol I, 2nd ed. Cairo, 1940 – Book II: The Life of Prophet Mohammed, XVI- The Status of Women in Islam,6. Islam’s Suggestions for Reconciliation, hereafter RI)
On the face of it, it seems that Dr. Galwash supports the position that a talaq can only be effective if approved by a court. Noorani tries to present the same picture, as did Justice Iyer. But a reading of the whole of the chapter belies this claim. The quote above was in the context of not being hasty in pronouncing talaq. It was preceded by exhortations from the Quran and Hadith for attempts at reconciliation. But it is the next section that deal with the technicalities. Elaborating on the “Ahsan” type of “Talaq”, Dr. Galwash writes (RI, II, XVI, 7. The Form of Separation- A Check on Separation):
This form of repudiation involves the following conditions, each of which being intended to prevent a permanent breach.
1. The husband, in the first place, must pronounce only one repudiation, the object of this limitation being, that he may subsequently, when better sense prevails, revoke the repudiation – if he has produced it from caprice or in a moment of excitement – within the period of the wife’s retirement consequent upon that repudiation and that he may re-marry her, if the period expires without the right if return having been exercised by the husband. (Fatawa Moughiri.)
2. The repudiation must be pronounced when the wife is in a state of purity, and there is no bar to sexual intercourse, it being declared unlawful to pronounce repudiation when the wife is in menses, or when she is pure, but has already been approached.
3. The husband must abstain from connubial intercourse with his wife after pronouncing repudiation for the period of three months. (Koran II:228)
The author goes on to explain the rules of the iddat period – that the husband continues to carry marital authority and is obligated to lodge and maintain her. After providing more Quranic quotations, he continues:
If the husband has pronounced one, or even two repudiations, and if within the prescribed period, he abstains from intercourse with his wife, and does not exercise the right of return on the repudiated wife, he loses the power of recantation at the expiration of the term, and complete cessation of the marital rights and duties takes place, a fresh marriage being necessary for the parties to re-unite. (Koran, II:232)
Contrary to what Justice Iyer and Noorani would like us to believe, Dr. Galwash states the repudiation and the revocation to be the husband’s prerogative, with no role for the court to intervene. Any scope for ambiguity on the role of the judge is laid to rest in the next section (RI, Book II, XVI, 8. “Kholaa Divorce”):
It should be remembered that the distinction between “talaq” and “Kholaa” is real and not merely technical. If the cause of disagreement proceeds from the husband or if he alone wishes for a “talaq”, he must pay off the settlement debt to the wife. But, in case the proposal for a divorce emanates from the wife because of her aversion to the husband, and her consequent failure to perform her duties as a wife, or if she alone wishes for a “Kholaa”, she has to surrender her dower or abandon some of her rights, as compensation. If the wife be so unfortunate as to be subject to abuse by a brutal husband who may wish her either to forfeit the whole of her dower, or live with him, she need not forfeit the whole of her dower. Let her only to the judge, prefer a complaint against her husband and demand a formal separation by the decree of the Court. If her allegations are true, the judge will call upon the husband to repudiate her. In case he refuses to do so, the judge himself pronounces a repudiation which will operate as a valid repudiation and the husband will be liable for the whole of the deferred dower.
It should be noted that the role of the judge comes into play in ordering a husband to pronounce a talaq, not in preventing him from doing so.
And now, for the bombshell (RI, II, XVI, 7. The Form of Separation- A Check on Separation):
In the other form of divorce three repudiation are pronounced in the period of purity, either on one occasion or on three separate occasions. This divorce is valid, but is an act of sin. This form of divorce is called “Talaq Bid-a,” i.e. not in conformity with pious practice.
Far from supporting the contention of Justice Iyer on the role of the judge, or the two contentions of Noorani (role of judge and the invalidity of triple talaq), Dr. Galwash presents the standard Sunni doctrine, wherein divorce without cause is disliked, and may render a person liable to be questioned in the Hereafter, but where the unilateral right to talaq remains with the husband nevertheless. What the learned doctor does – and commendably so – is to reconfigure the discourse from an over-legalistic one to one that is more comprehensive with a greater focus on morality and God-consciousness rather than the legal rulings. It is the consciousness of the Hereafter that acts as the real deterrence to the exercise of this seemingly absolute power.
What does one say about a judgment or article that selectively quotes from a scholar and misrepresents his position to be the opposite of what he intended? One could do no better than recall what Noorani himself wrote in a scathing critique of the infamous Hindutva judgment in which Justice J.S.Verma quoted Maulana Wahiduddin Khan out of context and misrepresented him: “Far from supporting the learned judge’s conclusion, the quote refutes it thoroughly. …. In any newspaper article, let alone a scholarly essay, this would have invited strong censure.” (emphasis mine.)
Pakistan’s Family Law Ordinance 1961 – The panacea?
A word about Pakistan’s Family Laws Ordinance 1961 which required the “talaq to be pronounced by a notice in writing and communicated to the Council’s chairman”. Leaving aside the question of its Quranic sanction – “not based on the Quran, the Shariah” seems not to be a required test when the matter is to Noorani’s likings – what is noteworthy is that courts were forced to read down the provision and declare that failure to notify the arbitration council would not invalidate the talaq. The reason? Because vindictive ex-husbands who had divorced their wives without notifying the arbitration council – a reminder that legislation does not necessarily change social practice – accused their ex-wives (who had remarried) of adultery under the Hudood ordinance, based on the premise that no divorce had taken place since the arbitration council had not been notified. Moreover, within the Pakistani judiciary, this particular requirement has been labeled both ‘Islamic’ and ‘un-Islamic’. When “creativity” is the hallmark rather than fidelity to a legal tradition, this should not come as a surprise.
What is most remarkable about most of the pieces on the issue of divorce in Islam that are based on an “Islamic”/”un-Islamic” terminology is the complete absence of any reference to the Islamic intellectual tradition, a religious and civilisational edifice that in the words of a contemporary scholar “ranks among the greatest intellectual and cultural achievements in human history.” No wonder the result is such misrepresentation.
The author is an engineer, with a Masters degree in Computer Science, from the Indian Institute of Science, Bangalore