Those Three Destructive Words!

Talaq Talaq Talaq!

I divorce thee thrice forever and render you haram for me!

Shah Bano Begam and Sayra Bano.

Inscribed on a piece of paper were three words: "Talaq, Talaq, Talaq". Ten years of tyrannical marriage, an abusive husband, forced abortions and then this piece of paper (Talaqnama), sent by Shayara Bano's husband to her parents' home where she was staying for almost a year! She is just one of the many victims of the tyranny of Triple Talaq in which the husband, quite often, pronounces talaq thrice at one occasion, sometimes over the phone, WhatsApp, or a divorce advertisement in a newspaper. The evil practices like triple talaq, nikah halala, and polygamy are responsible for the miserable condition of Muslim women in our country.

Before delving into the debate of Triple Talaq under Islam, it is imperative for us to understand the nature of Marriage and Divorce ordained under Islam so as to form a better perspective of the concept of Triple Talaq.

Is Nikah a contract or sacrament?

It is often said that under Islam, marriage is a contract constituted by ijab-o-qubool, and like any other contract it comprises an offer (ijab), acceptance(qubool) and consideration (mehr), so it can also be terminated or dissolved like a contract by the parties to the contract at any time. But in reality, there also exists a religious aspect of it. The Prophet of Islam is reported to have said: "Marriage is my Sunna, and those who do not follow this way of life are not my followers". It is considered as an act of ibadat as it protects the society from foulness and unchastity.

Prophet said: "He who marries completes half his religion; it now rests with him to complete the other half by leading a virtuous life in constant fear of God." [Al-Tirmidhi 3096]

It can be concluded that marriage in Islam is neither purely a civil contract nor a sacrament but the blending of the two.

Dissolution of Muslim Marriage

Under Muslim law, marriage is dissolved either by the death of the husband or wife or by divorce. Husband's right in respect of divorce is much greater than that of the wife.

During the period of Jahiliyat (Pre-Islamic period), divorce was used as an instrument of torture. The power of divorce possessed by the husband was unlimited and was frequently exercised by them without any regard to the marital obligations.

"They could divorce their wives at any time, for any reason or even without any reason. They could give divorce and also revoke the same as many times as they preferred. They could, moreover, if they were so inclined, swear that they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave them with such notoriety as would deter other suitors; while they themselves would go exempt from any formal responsibility for maintenance." [Furqan Ahmed, Triple Talaq: An Analytical Study with Emphasis on Socio-Legal Aspect 13 (Regency Publication, New Delhi, 1994)]

Prophet of Islam was disgusted by arbitrary divorce practices prevailing among the pagans and Jewish-Christian Arabs. To remove these evils, he framed the laws of marriage and divorce.

Talaq in Islam

The Prophet (PBUH) despised divorce and described marriage as his Sunnat.

Prophet said: "Divorce is most detestable in the sight of God; abstain from it". [Abu Dawud 9: 2173]

Talaq, different from the wider term Divorce, means the repudiation of marriage by or on behalf of the husband in an exercise of the power conferred on him.

Justice Krishna Aiyer observed:

"It (talaq) is a popular fallacy that a Muslim male enjoys, under Quranic law, unbridled authority to liquidate the marriage. Muslim law has taken a course contrary to the spirit of what the Holy Prophet or the Holy Quran laid down, and the same misconception vitiates the law dealing with the wife's right to divorce."

[Yusuf v Sowramma, AIR 1971 Ker.261]

Modes of Talaq

1. Talaq-ul-Sunnat (an Approved form of Divorce)

           •Ahsan (Best mode of Talaq)

           •Hasan (Good mode of Talaq)

2. Talaq-ul-Biddat (a Sinful form of Divorce)

           •Written Divorce (Talaqnama)

           •Triple Talaq

Talaq Ahsan (pronouncement of talaq in a single sentence) becomes irrevocable on expiry of the period of iddat, and Talaq Ahsan (Three successive pronouncements in three successive tuhr) becomes irrevocable on the third pronouncement irrespective of the iddat. (Iddat: three menstrual cycle of women)

Talaq-ul-Biddat becomes irrevocable immediately when it is pronounced irrespective of iddat.

Talaq-ul-Biddat is a recognized form of Divorce among Hanafis. Sunnis accept it, though they consider it sinful.

Holy Quran provides a procedure for pronouncing Talaq, and it is emphasized that every possible attempt must first be made for reconciliation between husband and wife before the completion of the prescribed period. To check hasty action and leave the door for reconciliation, it is laid down in Holy Quran that Talaq should be pronounced in Tuhr (when the wife is free from her menstruation and is in a clean state). [Surah al-Baqarah 2:222]

Origin of Triple Talaq

Triple talaq was not in practice during the lifetime of first Caliph Abu Bakar and also for more than two years during the life of second Caliph Hazrat Umar. Later on, Caliph Umar permitted it to meet an emergency situation.

During a war, when Arab conquered Syria, Egypt, Persia, etc., they found women there much more attractive in appearance as compared to Arabian women and hence they wanted to marry them. Egyptian and Syrian women agreed to marry on a condition that Arabs should divorce their current wives instantaneously by pronouncing three Divorce in a single sitting.

The condition was readily accepted by the Arabs because in Islam divorce is permissible only twice in two separate periods of Tuhr and its repetition at one sitting is un-Islamic, void and shall not be effective. This enabled them to not only marry these women but also retain their existing wives.

This misuse of religion by the unscrupulous husbands was reported to Caliph Hazrat Umar. To prevent abuse of Islamic law, Caliph Umar decreed that even repetition of the word talaq, talaq, talaq at one sitting would dissolve the marriage irrevocably. However, it was a little administrative measure, and he did not intend to make it a law permanently.

Unfortunately, the Hanafi jurists declared this form of divorce valid and also paved religious sanction to it.

Triple Talaq and Holy Quran

Triple talaq is a recognized but disapproved form of divorce. It commands neither the sanction of Holy Quran nor the approval of the Holy Prophet.

Muslim law rests on the four-fold pillars of the fiqh: the Holy Quran, the Sunnah (Hadiths), the Ijma and Qiyas. A ‘principle’ to become ‘law’ must find a place in the sources mentioned above. If the solution of a problem is given in the Quran, then it is the final ruling of Shari’ah. If there is no clear exposition in the Quran, we look at the traditions of the Prophet documented in the form of hadiths by his companions. If the problem has no solution in either of the two, then only resort is taken to Ijma. There is no Quranic basis to establish that the three pronouncements at one occasion would be treated as three divorces on an irrevocable footing.

A relevant verse of Qur'an says:

"A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness." [2-229 Trans. By A. Yusuf Ali]

Nikah Halala

As stated by Prophet and narrated by Aisha:

 “Once a Muslim woman has been divorced by her husband thrice, she cannot remarry him unless and until she is married to another man who after compulsorily consummating the marriage divorces her so as to free her. It is only after this; she can marry her former husband.” [Sahih-Bukhari 63:186,187]

Nikah Halala is a law that requires a divorced woman to marry and sleep with another man in order to become ‘Halal’ (lawful) for her husband again.

In the midst of this, several websites and social media pages have emerged offering Halala marriage services to women who have been divorced by their first husbands. Such sites offer men who are willing to marry and sleep with the client (divorced Muslim woman) in exchange for a fee. Many women who approach these services are asked to pay large sums of money.

In 2016, a BBC reporter went undercover, posing as a divorced Muslim woman who was seeking a Halala marriage service through Facebook. She was asked to pay a sum of £2,500, for a bogus, temporary marriage where the man on the Facebook page offered to marry and sleep with her.

Women's Right to Divorce

Some so-called intellectuals and liberals of our country in order to mislead the unversed folk often argue that Islam also gives a woman the right to divorce her husband in the form of khula (a wife separating from her husband after returning a payment or consideration).

I wonder how can anyone equate Triple Talaq with Khula! A woman can ask khula from her husband at the cost of returning her mehr (dower) or giving something in consideration to him. She has to beg for Divorce and can seek divorce only at the mercy of her husband.

Triple Talaq and Part III of the Indian Constitution

Article 13 of the Indian Constitution is a key provision in the protection of fundamental rights as it renders all Pre as well as Post constitutional laws void insofar as they violate any fundamental rights guaranteed under part III of the Constitution. It, however, requires the particular law to fall within the definition given in Article 13(3)(a).

Article 13 states that:

"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.

It further states that:

"laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

Now you must be wondering why provisions of Muslim personal laws which are in derogation of party III of the Indian Constitution have not yet been repealed. This issue has been raised several times before the honourable Supreme Court as well as the Parliament, but none of them is willing to touch the Muslim personal laws.

In State of Bombay v. Narasu Appa Mali, the Court held that Personal Laws did not come within the ambit of law under Article 13(3)(a) and hence it cannot be tested on the touchstone of fundamental rights.

In Ahmedabad Women’s Action Group v. Union of India, Court held that it cannot interfere with personal laws as they are a matter of state policy.

Reasoning adopted by the learned judges was fallacious as the definition of the term law given in Article 13(3) is an inclusive definition and hence the omission or restrictive interpretation of 'custom or usages' cannot be sustained.

Observing that the judicial conscience is “disturbed”, the Allahabad High Court has held that triple talaq is “cruel” and raised a question whether the Muslim Personal law could be amended to alleviate the sufferings of Muslim women.

Triple talaq, ‘nikah halala’ and polygamy violate Muslim women’s right to equality and dignity guaranteed under Indian Constitution and are not protected by the right to profess, practice and propagate religion under Article 25(1) of the Constitution.

Muslim Women in action against Triple Talaq

"He verbally gave me Triple Talaq for refusing to get an abortion, and I was left on the road to die" said Shagufta Shah, who has written a letter seeking help from Prime Minister Modi and sent copies to Uttar Pradesh Chief Minister Yogi Adityanath, the National Commission for Women as well as the District Magistrate.

Triple Talaq, Nikah Halala, and polygamy have been challenged before the Supreme Court in Shayara Bano vs. Union of India, with the demand that they are deemed unconstitutional. Supreme Court has recently constituted a five-judge Constitutional Bench to decide on the Constitutional validity of Triple Talaq, Nikah Halala, and Polygamy.

Defending its hidebound religious laws All India Muslim Personal Law Board (AIMPLB) is opposing centre's move to oppose Triple Talaq in Supreme Court and urged SC to not to meddle with its personal laws.

I fail to understand, what stops our Judiciary from declaring personal laws as law under Article 13 of the Indian Constitution so that they can be tested on the touchstone of Fundamental Rights guaranteed under Indian Constitution. Also, it's out of my wit to understand what stops our legislatures from codifying Muslim Personal laws and from declaring them a 'law' for the purposes of Article 13 of the Indian Constitution through a Constitutional Amendment!

It's evident from the history that every step towards reform had to face severe opposition and criticism from a class of patriarchal, narrow-minded, adamant folk. What are we afraid of? It's perturbing that in the twenty-first century when women are dreaming of achieving greater things in life, a class of women in our country is still struggling for her basic human rights! Laws such as triple Talaq, Polygamy and Nikah Halala are not only antediluvian, but they are also debilitating for Muslim women.

Polygamy and Quran

"How can I go to sleep knowing that my husband is lying with another woman just next door? Just knowing that one's husband has another woman makes one crazy enough without having to see her every day."

Remarked a former Polygamous wife interviewed in prison while serving a life sentence for killing her husband!
(L. Tibatemwa-Ekirikubinza, “Multiple partnering, gender relations and violence by women in Uganda” (1998) 4 East African Journal of Peace and Human Rights 15 at 40.)

When practised patrilocally, Polygamy violates the right to familial privacy and undermines women's security and relational interests by compounding the inherent difficulties and mental agony of sharing one's husband.

Polygamy has been the heat of contention along with triple talaq in India. Qur'an's Surah 4 titled 'an Nissa' is on Women.

 Muslims who practice polygamy often quote Ayat 3 from Surah 4 to justify it which reads as follows:

"And if you have reason to fear that you might not act equitably towards orphans, then marry from among [other] women such as are lawful to you - [even] two, or three, or four: but if you have reason to fear that you might not be able to treat them with equal fairness, then [only] one - or [from among] those whom you rightfully posses. This will make it more likely that you will not deviate from the right course." (Surah an Nisaa - Women, 4:3).

हिन्दी अनुवाद: और यदि तुमको भय हो कि तुम यतीमों के संबंध में न्याय न कर सकोगे तो औरतों में से जो तुमको पसंद हो उनमें से दो, तीन या चार तक निकाह कर लो और यदि तुमको डर हो कि तुम न्याय न कर सकोगे तो एक ही निकाह करो या जो दासी तुम्हारे स्वामित्व में हो। इसमें आशा है कि तुम न्याय से विचलित न होगे। (सूरह अन निसा 4:3)

Plain reading of this verse suggests that it is in context of war-torn society in seventh-century Arabia, the battle of Uhud left many women widowed and children orphaned, the discussion of polygamy was revealed as part of a directive to treat female orphans justly. Nikah was considered as a protection for the women, even if it's Polygamous. Polygamy was promoted by Prophet as an act of Charity. It was not to allow Muslim men to fulfill their sexual desires. It was to serve a functional purpose for that time period, in allowing widows and to be taken care of in a society in which women usually did not have independent means of financial support.

Now women have more choices allowing them to be financially independent, even in cases where they are widowed or orphaned. The text is clear that polygamy is only permissible if all wives are treated justly then it goes on to say that it will never be possible for a husband to treat all of his wives fairly. (Surah An Nisaa 4:129) This effectively limits the possibility of polygamy.

The Prophet Muhammad said:

“Whosoever has two wives and he inclines towards one to the exclusion of the other, he will come on the Day of Judgment with his body dropping or bending down.” (Narrated by Abu Dawood, 2/242; al-Tirmidhi, 3/447; al-Nasaa’i, 7/64; Ibn Maajah, 1/633. classed as saheeh by Ibn Hajar in Buloogh al-Maraam, 3/310 and by al-Albaani in Irwa’ al-Ghaleel, 7/80).

It is not possible to balance all the duties required in a polygamous situation which leads us to believe that polygamy was never meant to be practised and is only done so by men exploiting Quranic teachings.

Some interpret the Qu'ran as granting an exception for polygyny, but holding monogamy as the ideal. This was precisely what motivated Tunisian nationalist leader Habib Bourguiba to prohibit polygamy. Reasoning that the Qu'ranic requirement of equal treatment of wives was impossible, Bourguiba argued that polygyny was dependent on particular conditions at the time of the revelation of the Qu'ran, and thus like slavery, should be prohibited.

The U.N. Commission on the Status of Women, which first met in 1947, agreed to work for:

"freedom of choice, dignity of the wife, monogamy, and equal rights to dissolution of marriage."

The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) has stated that polygyny violates women's right to equality within marriage.

In its General Recommendation no. 21 on Equality in Marriage and Family Relations, the Committee stated that:

"Polygamous marriage contravenes a woman's right to equality with men, and can have such serious emotional and financial consequences for her and her dependents that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5(a) of the Convention. "

In Vishakha and Others, the Indian Supreme Court cited CEDAW General Recommendations and stressed that India had ratified the Women's Convention and that the Government had made an official commitment at the Fourth World Conference on Women in Beijing “to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector.” 

CEDAW also suggested that states should require the registration of all marriages, whether conducted civilly or according to customary law, in order to:

Ensure compliance with the Convention and establish equality between partners, a minimum age for marriage, prohibition of bigamy and polygamy and the protection of the rights of children.

On one hand, allowing men to have as many as four wives, to satisfy their sexual vigour, and on the other hand, punishing women for committing Adulterous or bigamous act, is sheer hypocrisy and constitutes cruelty against her, which is against the principles of Natural Justice, Article 14 of The Indian Constitution and Article one of Universal Declaration of Human Rights of which India is a signatory country.

 The preamble of the Women's Convention expresses a conviction that:

"A change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women."

Beyond the harms to women associated with Polygamy, studies indicate that adolescents from Polygamous families have lower levels of socio-economic status, academic achievement, and self-esteem, as well as higher levels of reported family dysfunction than children from monogamous families. ( A study by Varghese Cherian, the academic achievement of children in Transkei was measured in relation to their parents' marital status:monogamous or polygynous). 

The researchers explained this difference by noting that polygynous families are more prone to jealousy, conflict, tension, emotional stress, opposing motives, insecurity, and anxiety. This type of emotional stress, anxiety, insecurity and jealousy between wives can seriously cause significant emotional problems for children and undermine their educational progress.

Where Polygamy exists, it often stereotypes women into reproductive and service roles. As a result of such inherent structural inequality, women can never be truly equal in polygynous unions.

Compelling reason for men to not to practice polygamy, is the imperative to do justice, which prohibits having multiple wives, since, as human beings, men cannot ever be perfectly fair and just among them.

Prophet Muhammad never endorsed Polygamy as a license to satisfy men's lust. Why not follow his Sunnah (Deeds)?

To come to terms with ill effects of Polygamy and violation of Women's Human Rights even in 21st century, like slavery, it should be banned Universally. It has no relevance in today's world.

PS: Surah means Chapters in Quran and Ayat means Verses. There are total 114 chapters and Approx 6,666 verses in Quran.