Islamic law of divorce

By A. Faizur Rahman for,

The law of divorce is one of the most misunderstood and debated canons of Islam. And its back in focus thanks to the recent judgement of a Delhi court which upheld the validity of divorce given by a Shia Muslim to his wife through his agent to pronounce the word ‘talaq’ in Arabic as he himself was not conversant with the language. The Shia law insists that divorce must be pronounced in Arabic either by the husband or his agent (vakil) in the presence of two male witnesses. On the contrary, the Sunni law does not make pronouncement in Arabic compulsory while it surprisingly upholds the legality of talaq uttered in the absence of witnesses despite the fact that the Quran in surah Talaq clearly mandates the presence of two witnesses at the time of divorce. But then the Sunni law also allows instant triple talaqwhich is not allowed under the Shia law. Given these differences, it becomes imperative to know as to what the Quran and the last Prophet had to say on this issue which has become so contentious today.

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Under the present Muslim law the term talaq is exclusively used for divorce proceedings initiated by the husband whereas divorce at the instance of the wife is called khula. But the Quran does not differentiate between talaq and khula. In fact, the word khula finds no mention in the Quran. Yet we find khula discussed at length in Muslims books of jurisprudence with no reference to the Quran or the Prophet’s elucidation of it. One may be shocked to know that while men are granted the right to absolute divorce without any judicial intervention (by pronouncing the word “talaq” thrice in quick succession), Muslim jurists restrict this right for women under khula by laying down the conditions that;

a) The offer of khula from the wife must be accompanied by a consideration (usually monetary) known as evaz
b) The offer must be accepted by the husband.

For this reason khula sometimes is referred to as talaq ba evaz al maal that is, the right of divorce purchased by the wife from her husband for a certain mutually agreed sum of money (Fatawa al Hindiyah). This un-Islamic provision that denies women legal equality is justified on the basis of a clause (highlighted in bold letters) in the following verse:

A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or separate with kindness. It is not lawful for you to take back any of your gifts (from your wives), except when both parties fear that they would be unable to keep the limits ordained by Allah. If you do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah; so do not transgress them if any do transgress the limits ordained by Allah, such persons are the wrongdoers. (2:229).

It is obvious that the highlighted portion of the verse has been taken out of context. The injunction cannot be construed as an allusion to khula as it would come in direct conflict with another clause of the Quran (quoted and translated above) which confers upon the Muslim women rights on a par with men; wala hunna mislul lazi alai hinna bil ma’aroof (2:228). It is actually an inducement offered to men in order to prevent them from keeping their wives in a state of suspense by neither resuming conjugal relations nor releasing them by pronouncing the third divorce after the initial two divorces. This was one of the ways by which men harassed women during the time of the Prophet. It was perhaps to obviate such dilatory tactics by men that women were permitted to offer, as a matter of goodwill, some consideration to their husbands to terminate the marriage tie. To de-contextualise this Quranic recommendation and misinterpret it to deny women their right to divorce by making it conditional on an acceptable financial recompense to their husbands through khula would amount to distorting Islam.

The foregoing analysis proves that although the procedure of talaq given in the Quran is with reference to men (perhaps because, barring exceptions, historically men have been victimising women rather than the other way around) the same holds good for women. This is because marriage in Islam is a solemn contract (meesaaqan ghaleeza) and both parties have equal rights to revoke this covenant in accordance with the Quranic procedure if the other party breaches it. Also, as the Quran is based on principles of gender justice there is no question of granting legal superiority to men on any issue including divorce. In this context, it becomes imperative to look at the procedure of divorce as explained in the Quran to have a better understanding of marital rights in Islam.

Four steps before the first talaq
(As laid down in 4: 34-35)

As a first step, when there is a marital discord, the Quran advices the husband to reason out (fa’izu hunna) with his wife through discussions. If differences persist, then as a next step, the parties are asked to sexually distance themselves (wahjuru hunna) from each other in the hope that this temporary physical separation may encourage them to unite.

And if even this fails, the husband is instructed, as a third step, to once again explain (wazribu hunna) to his wife the seriousness of the situation and try to bring about a reconciliation. In pursuance of wazribu hunna, the husband shall explain to his wife that if they do not resolve their differences soon enough, their dispute may go beyond the confines of their house and become common knowledge which may not be in the interest of both parties. This would be true because, if the dispute still remains unresolved, as a fourth step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution.

Three talaqs
(As laid down in 2:228-232 & 65:1-4)

It is only after the failure of the aforementioned four attempts at reconciliation that the Quran allows the first talaq to be pronounced followed by a waiting period called the iddah. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses (as per 2:228-229). For women who have attained menopause or suffer from amenorrhea the period of iddah is three months, and in the case of pregnant women it is till the termination of pregnancy (65:4).

And if the parties are unable to unite during iddah as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddah (2:231). Once the final talaq has been invoked the marital bond is severed and the parties cease to be of any relation to each other. However, even after iddah has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced. It says, “When you divorce women and they complete their term (iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms” (2:232). In other words, after the expiry of iddah, as per verses 2:231 & 232, the parties are given the options of remarriage and permanent separation- the separation being the third and the final irrevocable talaq to be pronounced in the presence of two witnesses (65:2).

Thus, it can be summarised from the above discussion that after four serious attempts at reconciliation a Muslim husband is permitted to divorce his wife once or twice within the period of iddah to resume conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddah he can either re-contract the marriage on fresh and mutually agreeable terms or irrevocably divorce her by pronouncing the third and the final talaq. It is understood here that the woman cannot be left hanging without either being united with her husband or irrevocably divorced. The parties have to decide one way or the other within a reasonable period of time. This is clearly implied in the verse 2:231 which says “but do not take them back to hurt them or to take undue advantage. If anyone does this he wrongs himself.”

However, to emphasise the sanctity of the marriage tie and the enormity of breaking it for frivolous reasons, the Quran warns that once the parties choose to separate after the expiry of the iddah, they cannot entertain hopes of marrying again unless the wife takes another husband and he divorces her (2:230). It is understood here that a divorce may result only if the new husband has serious differences with his wife, and in the rare event of such differences cropping up, he is required to follow the Quranic procedure of divorce as discussed above.

Step by step summary of the Quranic procedure of talaq

1. Husband and wife to reason out through dialogue (fa’izu hunna)
2. Temporary physical separation (wahjuru hunna)
3. More convincing to effect reconciliation (wazribu hunna)
4. Arbitration
5. First talaq followed by iddah
6. Options within iddah: 2nd talaq or resumption of conjugal relations without re-marriage
7. Options after iddah: Re-marriage or final separation through third talaq.

Divorce as understood and practiced in India today

Despite the clarity of the Quran and Prophetic teachings on the issue the concept of divorce has been completely misunderstood by our clergy. As per the prevailing understanding of “shariah” in India, talaq has been broadly categorised into talaq al sunnah and talaq al bid’ah. The first form refers to divorce pronounced in accordance with the Quranic procedure as explained by the Prophet, and the second one alludes to a sinful innovation (bid’ah) supposedly introduced by the second Caliph Umar. In this type of divorce the husband is authorised to repudiate his marriage by saying the word talaq thrice in quick succession in the presence if his wife who then ceases to be his spouse with immediate effect. Hazrat Umar is said to have legalised this innovation to discourage people who had adopted this undesirable practice as a quick way to get rid of their wives.

This account may be apocryphal for two reasons. First; a hadith in Abu Dawood says that Hazrat Umar himself punished people who uttered three divorces at the same time, and second; why would the Caliph of Islam legalise the very misogynist practice he was trying to abolish? It would have made sense if he had issued a decree to the contrary delegitimising the annulment of marriage on the pronouncement of three divorces in one sitting. What is astonishing is, the Sunni jurists consider talaq al bid’ah a grave sin and yet legalise it. No theological explanation is offered as to how a sinful act can become legally valid. But the most shocking part of the Sunni law is that talaq al bid’ah is valid under threat, fraud, influence of drink, and even out of ignorance. The only form of triple talaq that Hanafi law does not recognise is the one pronounced during sleep! It may be recalled that last year Deoband issued a fatwa validating triple talaq given by a drunken man, and it was fully backed by the All India Muslim Personal Law Board. One of the justifications offered for this ruling is that it discourages the use of liquor by men! The question is; should the dissuasion of alcoholism be at the cost of a marriage wherein the affected party invariably is the hapless wife to say nothing about her innocent children?

The legality of instant triple talaq has also led to the abominable circumvention of the Quranic injunction of 2:230 (discussed above) to overcome its impracticality. To help the victims of this law a pliable person is set up who marries the divorced wife, consummates the marriage overnight and divorces her the next day so that the original husband can remarry her in accordance with 2:230. This outrageousness which an innocent woman is subjected to for the ruthlessness of an un-Islamic and inhuman law is known as halala. Although many ulema have outlawed this disgraceful practice, it still prevails clandestinely among the followers of the Sunni sect.

The truth is; 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). It may be noted here that the Prophet’s warning was against trivialising the “Book of Allah.” This is a clear admonition to given to the Muslims that if they wish to dissolve their marriage they must do so only in accordance with the Quran and nothing else.

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 Beebee [(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.”

In the light of the aforementioned arguments the India ulema are hereby requested to recognise the fact that a Muslim husband is not entitled to pronounce even onetalaq without having first exhausted the four reconciliation attempts mentioned in 4:34-35. They must immediately outlaw instant triple talaq and delegitimise unilateral divorce proceedings without the intervention of a judicial authority to safeguard the rights of both parties. Interestingly, Pakistan enacted such a law half a century ago entitled The Muslim Family Laws Ordinance, 1961. According to this law any man who wishes to divorce his wife shall, after the pronouncement of talaq in any form whatsoever, give the Chairman of the state appointed Union Council notice in writing of his having done so, with a copy to the wife. Within thirty days of the receipt of notice the Chairman shall constitute an Arbitration Council consisting of himself and a representative of each of the parties for the purpose of bringing about reconciliation between the parties. Contravention of this procedure is punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand rupees or with both. It is time a similar law is enacted in India too.

The author is the Secretary-General of the Chennai-based Forum for the Promotion of Moderate Thought among Muslims. He may be reached at [email protected].