By T. V. Antony Raj

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In Islam marriage is considered as an extremely desirable institution, hence its conception of marriage as the rule of life, and divorce only as an exception to that rule. According to a Hadith, Prophet Muhammad said, “Marriage is one of my Sunnah (way). One who does not follow it does not belong to me.” (Ibn Majah, Sunan, Kitab an-Nikah.)

The disintegration of a family has an injurious effect on the society. If the family no longer exists, the whole of humanity suffers.

Nature demands that men and women lead their lives together. According to the Sharia, or Islamic religious law which forms a part of the Islamic tradition, the ideal way of leading such a life is within the bonds of marriage.

In Islam, marriage is both a highly sacred bond to which great religious and social importance is attached and a civil contract entered into by mutual consent of the bride and groom.

The state of marriage lays the foundations for family life. Once a man and a woman are tied together in the bonds of matrimony, they are expected to do their utmost, till the day they die to honour and uphold what the Qur’an (4:20-21) calls their firm contract, or pledge.

وَإِنْ أَرَدتُّمُ اسْتِبْدَالَ زَوْجٍ مَّكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا ۚ أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُّبِينًا – 4:20
But if you want to replace one wife with another and you have given one of them a great amount [in gifts], do not take [back] from it anything. Would you take it in injustice and manifest sin?

وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَىٰ بَعْضُكُمْ إِلَىٰ بَعْضٍ وَأَخَذْنَ مِنكُم مِّيثَاقًا غَلِيظًا – 4:21
And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?

To this end, the full thrust of the Sharia Law is levelled at preventing the occurrence of divorce and exists primarily, as checks and not incentives.

All men and women are by nature quite different from each other, biologically. It is an accepted fact that everyone, man or woman, has strengths and weaknesses. This is equally true of husbands and wives. So, when a man and a woman are enjoined to live together as husband and wife, naturally they would have their differences.

Unity can be achieved only through patience and tolerance. According to Abu Hurayrah, the Prophet said, “No believing man should bear any grudge against a believing woman. If one of her ways is not to his liking, there must be many things about her that would please him. “ (Muslim, Sahih, Kitab ar-Rada’, 2/1091)

So, in a marriage, each partner should consciously recognize the plus points of the other and ignore the minus points. Nevertheless, in a few cases, unpleasantness crops up gradually increasing the friction between a husband and his wife preventing them from arriving at a just settlement of their differences reaching a stage of desperation that they become intent on divorce.

In such a situation, the Sharia Law gives them guidance by prescribing a specific method for separation.

The Qur’an (2:229) expresses it thus:

الطَّلَاقُ مَرَّتَانِ ۖ فَإِمْسَاكٌ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَن يَخَافَا أَلَّا يُقِيمَا حُدُودَ اللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ ۗ تِلْكَ حُدُودُ اللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَأُولَٰئِكَ هُمُ الظَّالِمُونَ – 2:229
“Divorce may be pronounced twice, then a woman must be retained in honour or allowed to go with kindness.” (Qur’an, 2:229)

From this verse, we understand that once a man gives notice of divorce to his wife (not menstruating at that time) by pronouncing twice, “I divorce you,” both are expected to think the situation over a period of two months and should remember God before giving notice a third time. If the husband has a change of opinion during this period, he can withdraw his words and he should keep his spouse with him in a spirit of goodwill. On the other hand, if he still wants to divorce her, he will say again, “I divorce you,” to his wife (not menstruating at that time) and they must again review the situation for a further month. During that period, if the husband has had a change of heart, he has the right to revoke the proceedings. If at the end of the third month he does not change his mind and does not revoke the proceedings then the divorce becomes final and the man ceases to have any right to revoke it. Now he is obliged to part with his wife in a spirit of goodwill, does no injustice to her, and gives her full rights.

This prescribed method of divorce has ensured that it is a well-considered, planned arrangement and not just a rash step taken in a fit of emotion. When we remember that in most cases, divorce is the result of a fit of anger, we realize that the prescribed method places a tremendous curb on divorce. It takes into account that anger never lasts and tempers cool down after some time.

Those who feel like divorcing their wives in a fit of anger will certainly repent their emotional outburst and will wish to withdraw from the predicament it has put them in. It also takes into account that divorce is a not a simple matter: it amounts to the breaking up of the home and destroying the children’s future. It is only when tempers have cooled down that the dire consequences of divorce are realized, and the necessity to revoke the decision becomes clear.

When a man marries a woman, he has to say only once that he accepts her as his spouse. But for finalizing a divorce three utterances are required, and the Qur’an enjoins a long gap of the three-month period for formalizing it. The purpose of this gap is to give the husband enough time to revise his decision and to consult the well-wishers around him. It also allows time for relatives to intervene in the hopes of persuading both husband and wife to avoid a divorce. Without this gap, none of these things could be achieved. That is why divorce proceedings have to be spread out over a long period of time.

All these preventive measures clearly allow frayed tempers to cool, so that the divorce proceedings need not reach a stage that is irreversible. Divorce, after all, has no saving graces, particularly in respect of its consequences. It simply amounts to rid oneself of one set of problems only to become embroiled in another set of problems.

Despite all such preventive measures, it does sometimes happen that a man acts in ignorance, or is rendered incapable of thinking coolly by a fit of anger. Then on a single occasion, in a burst of temper, he utters the word “divorce” three times in a row, “talaq, talaq, talaq!”

Such incidents, which took place in the Prophet’s lifetime, still take place even today. Now the question arises as to how the would-be divorcer should be treated. Should his three utterances of talaq be treated as only one, and should he then be asked to extend his decision over a three-month period? Or should his three utterances of talaq on a single occasion be equated with the three utterances of talaq made separately over a three-month period?

There is a Hadith recorded by Imam Abu Dawud and several other traditionists which can give us guidance in this matter: Rukana ibn Abu Yazid said “talaq” to his wife three times on a single occasion. Then he was extremely sad at the step he had taken. The Prophet asked him exactly how he had divorced her. He replied that he had said “talaq” to her three times in a row. The Prophet then observed, “All three count as only one. If you want, you may revoke it.” (Fath al-Bari, 9/275)

A man may say, “talaq” to his wife three times in a row, in contravention of the Sharia’s prescribed method, thereby committing a sin, but if he was known to be in an emotionally overwrought state at the time his act may be considered a mere absurdity arising from human weakness. His three utterances of the word talaq may be taken as an expression of the intensity of his emotions and thus the equivalent of only one such utterance. He is likely to be told that, having transgressed a Sharia Law, he must seek God’s forgiveness, must regard his three utterances as only one, and must take a full three months to arrive at his final decision.

On Tuesday, August 22, 2017, in a landmark judgement, a five-judge Constitution Bench of the Supreme Court, comprising Chief Justice of India JS Khehar, Kurian Joseph, Rohinton Fali Norman, Uday Umesh Lalit and Abdul Nazeer struck down the practice of Triple Talaq declaring it as unconstitutional on the grounds that it goes against the Sharia Law and the basic tenets of the Quran.

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The Quint spoke to noted Muslim jurist and former chairman of the National Commission for Minorities, Tahir Mahmood, on the obscurity of the debate surrounding triple talaq. Here are excerpts from the conversation.

“If we go strictly by the teachings of the Holy Quran or by the teachings of the Prophet, it is one of the best laws that humankind can have. This law is about 1,500 years old. It is a wonder that we had such a progressive law at that time.

In 7th century AD, Prophet Mohammad gave inheritance rights to women. We did not have equal rights for men and women, but the law provided for at least half the share to be given to the wife, the daughter, granddaughter, the mother, or even distant relatives. This would’ve been inconceivable anywhere else in the 7th century. That was one progressive aspect of it.

But the law as written in the holy book of Quran is very different from what is in practice. The world has no time to look at what the Quran says. Muslims all over the world go by what the community dictates, not by Quranic text.

The practice of triple talaq is most un-Islamic, most un-Quranic. Even if it’s single talaq, the result will be the same. What is being objected to, in the name of triple divorce, is the practice of Muslim men unilaterally divorcing their wives without following the procedure laid down in the Quran.

Triple divorce is a misnomer. The problem is unilateral divorce. The divorce laws are very comprehensive, but no one, including the maulavis, is following the religious text. The law is not just being implemented wrong, its interpretation is being completely distorted. The judiciary is the only means to correct this. There is no other way.”

To read more of the interview click this link:
https://www.thequint.com/news/india/to-ban-triple-talaq-stop-talking-about-uniform-civil-code-tahir-mahmood

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