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| Talaq, Once Again in Focus! | |
Asad Mirza
Recent observations by a Supreme Court bench on the topic of Talaq, has yet again opened a Pandora box. The issue could be resolved once and for all if the Muslim jurists make a review of the practice in keeping with the modern times.
On November 19, a Supreme Court bench questioned the legality and social impact of Talaq-e-Hasan, as practiced by Indian Muslim men. It particularly objected to husbands using lawyers to issue divorce notices and indicating the matter may be sent to a Constitution Bench.
The bench questioned why lawyers or other individuals to engaged send Talaq-e Hasan notices on their behalf. The bench called it an affront to women's dignity and asked why a husband who can approach a lawyer cannot directly communicate with his wife.
In its observations, the Supreme Court signalled a possible constitutional rethink of Talaq-e-Hasan, but here it should be noted that different Personal Laws have a legal sanctity under Article 15 of the Constitution.
Going by the Supreme Court’s latest observation, it becomes clear the apex court has not raised any questions about the legality of the Talaq-e Hasan, but the way the husband has communicated with his wife by engaging a third party.
Talaq in The Holy Qur`an
To clarify any doubts as regards to different types of Talaq available to Muslim men, Islamic jurists - Muftis, note that in Surah Talaq, Ayat 1, Allah (SWT) first expresses His displeasure with Talaq and says that this act should be resorted to only when all options of reconciliation have been exhausted, further, it lays down the details of the whole process. Allah’s displeasure on Talaq is also mentioned in Surah Nisa from Ayat 19 to 29.
In this regard it should be noted that the Holy Qur`an in Surah Baqarah verse 228 and 229, prescribes that after getting a Talaq, a woman has to go through the period of Iddat, before she could remarry.
This means that she can remarry only after the Iddat period is over and in between it gives a chance to the man to ponder over what he has lost, and if he has pronounced only one Talaq, then he can take his wife back during the Iddat period, without a second Nikah.
Further, the Iddat period is made obligatory. It has been proven by the medical science that a woman’s body is cleaned of the DNA of her former husband during the Iddat period or between 84 to 90 days. So, if she remarries after Iddat then no question of any physical linkage with her former husband could be admissible.
Types of Talaq
In India, Islamic Fiqh (jurisprudence) details Talaq in two books, viz, firstly in Majmua-e Qawanin-e Islami, published by the All India Muslim Personal Law Board (both in Urdu and English). In the book on pages 225 and 226, the correct manner of pronouncing a Talaq is given, which spells out that the Talaq should be pronounced only when the wife is not pregnant, not menstruating and the husband has not cohabitated with her since the last period, further in case of old women (in menopause) this condition will not apply.
The explanation further says that pronouncing more than one Talaq in a month is not permissible, or if the man is an inebriated condition.
Secondly, Qamus Al Fiqha (Vol 4), published by Mahad-ul Aali Al Islami, Hyderabad on page 349, describes the Talaq, as allowed by Islam;
Talaq-Ahsan is the most preferred type of Talaq under Islam. Under Talaq-e Ahsan pronouncing the word Talaq, once is enough, following the conditions given above. If after the first pronouncement the Iddat period, usually 84 days passes away, then the Talaq is formalised and why it is preferred is due to the reason that even after the first pronouncement, a husband can take his wife back. But if he wants to take her back after the Iddat period, then a re-Nikah is required. This talaq is also known as Talaq-e Ba`in.
To further elucidate, it would be pertinent to go through Message Of The Qur`an To Muslims by SSU Tabrez, wherein he has summarised the procedure for pronouncing divorce in the most acceptable manner according to the Holy Qur`an and Sunnah, as explained in Islamic Jurisprudence. He writes;
If the divorce seems to be the only option, it should be pronounced in a period in which the husband has not approached his wife after her menstruation, a single pronouncement should be made in the presence of two mature people as witness. Unless there are some serious reasons due to which she must leave, the woman shall continue to stay in the husband’s house for a period of three menstruations, which is the waiting period for her, after the pronouncement of divorce. This waiting period during which the two are staying together but not having husband-wife relation provides them with a golden opportunity to reassess the situation and reconsider their decision.
Further, if they decide to mend the relationship, the husband can revoke his pronouncement (with a good intention) before the completion of three months of waiting period. He can do it by either physically approaching the wife or simply pronouncing it verbally. This decision should also be brought to the notice of two adult witnesses. If the husband stands by his decision, separation is established after the Iddat period. However, in future if they want to come together again, it is permitted after fresh Nikah only.
Further, even the second pronouncement of Talaq is revocable. And the process mentioned for reunion above will be followed. However, even after second reunion if the discord resurfaces and the divorce is pronounced for the third time, it is irrevocable.
Reforming the Talaq Practices
It is the duty of the Islamic scholars to come forward to condemn and forbid the unethical practices, which are against the spirit of Islam, introduced gradually by male chauvinists and groups, in this case lawyers, to serve their vested interests. On the other hand, Muslim scholars by sweeping the ills prevailing in Ummah under the carpet, are shying away from their prime responsibility of Nahi-'anil-Munkar (stopping from forbidden or unethical practices).
This further raises questions on how a Talaq should be pronounced, most Islamic jurists are of the view that preferably Talaq should be given in presence of a witnesses, but in almost all cases this act happens during private hours of the couple, so this might not be feasible.
But keeping in mind the displeasure of Allah over this act and keeping with times, it would be preferable if Muslim bodies like AIMPLB, try to make the presence of a witness being present, a compulsory advice. As it may give the irate husband another chance to reconsider his decision before pronouncing Talaq in presence of witnesses. Further, the Board should publish a booklet in all Indian languages, listing out the whole process in simple unconfusing language.
On its part it would be better if the Indian judiciary could empanel some Muftis – and depending on their guidance, the courts could base their decision instead of being exasperated by different Arabic words and sources.
(Asad Mirza is a New Delhi-based senior commentator on national, international, defence and strategic affairs, environmental issues, an interfaith practitioner, and a media consultant.)
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