[sacw] Triple Talaq - bane of Muslims [a view from India]

[Harsh Kapoor]

August 3, 1999
FYI
(South Asia Citizens Web)
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The Hindu
August 3, 1999
Features

Triple Talaq - bane of Muslims [a view from India]

RECENTLY, THE Indian Muslim League celebrated its half a century of
political presence with considerable pomp. The Chief Minister of Tamil
Nadu and other political bigwigs including Mr. G. K. Moopanar, Chief of
the Tamil Maanila Congress (TMC) took part in it. Muslim moieties of all
ilk had gathered there. Measures to improve the political status of
Muslims were discussed. Cheers to the leaders of the IUML for getting
together people to discuss the problems afflicting the Muslim community.
Reviewing the contents of the enlightened agenda some basic issues
affecting Muslims took the backseat. This commentator was notably
impressed by the content of the proceedings on issues relating to women.
Saying ``improve the status of women in your society the rest automati
cally follows'' or ``polygamy is not permissible'' is old hat. It was
only hoped that the Muslim polity at the get-together would spend some
time discussing the triple Talaq and the oft- raised issue of polygamy.
To one's disappointment it was not to be.

To directly focus on a problem, an example often is helpful. Zaina, an
18-year-old girl hailing from an economically marginalised Muslim
family, by parental arrangement, married Mukhtar, a factory worker. The
marriage survived for three years and the couple had one child and Zaina
was expecting again. Mukhtar's emotional attachment began to deviate for
several reasons, one of which was a partially fulfilled financial
requirement from Zaina's parents - we shall desist from calling it dowry
- aggravated by an illicit relationship with his co- worker Mary. The
infatuation precipitated a convenient consultation with the local Moulvi
or Khazi in whose presence Mukhtar pronounced the most heinous words a
Muslim woman would hate to hear, namely, ``Talaq, Talaq, Talaq.'' The
Moulvi as you would have it, sent an official Talaqnama to Zaina who was
visiting her parental home for some help. Zaina approached an advocate
for help and was told that as per the present status of the Muslim
personal law the divorce was valid. After much mental agony and physical
injury, Zaina was conferred a princely sum of Rs. 150 a month as
compensation to be paid by Mukhtar. In the meantime, Mukhtar married
Mary. Since he had `legally' divorced Zaina, and Mary had embraced Islam
voluntarily, failure to compensate Zaina would not pose a major hurdle.
The net result was that Zaina went back to her parents with two
children. These days Rs. 150 does not procure much. Never mind Zaina's
food, shelter or clothing and not to mention the agony of her parents
who have two more daughters to be married off. What Zaina did no one
knows.

Meanwhile word spread that a recently divorced woman had joined the Lord
to ask him the reason for her misfortune, since she had not ``strayed''.
She left her just born infant with her 45-year- old mother. Her father
was planning to enrol her three-year-old child in an orphanage since his
earning would not fetch all of them one meal a day. An interesting legal
fact became obvious: in such a situation as per the present Muslim
personal law with all fanciful amendments following the Sha Bano
pronouncements, taking care of Zaina falls squarely on the head of her
family, in her case the father and in other instances, on brothers, and
if they refuse to do so, on the much avowed institutions of fame, namely
the Baithul Mal and the Waqf Boards. The Baithul Mal conglomerate does
not exist in most cities and towns and the less said about the financial
capability of the Waqf Board the better. The narration is a true story
except that the names have been changed for purpose of anonymity. This
is what triple Talaq produced. The legal profession says the incident
quoted is prevalent and unremediable. If such be the case, it behoves
the Muslim polity, intelligentsia and legal professionals to be seized
of such anomaly - the Muslim ``clergy'' should perhaps be left alone to
their meandering - and precipitate some redress. First the triple Talaq
as an instrument of divorce, should be abolished.

Blasphemy

The Muslim clergy and their cohorts may cry hoarse that the triple Talaq
has been the traditional concept of separation between Muslim partners
in marriage. But if a tradition precipitates disharmony in society, is
causative of suicides, results in uncared for children with no help
emanating from the State, we would be labelled criminals if we allow it
to continue. It would be an act of blasphemy to circulate the ideology
that abolition of the triple Talaq is against the tenets of the Quran.

With no claims to the higher echelons of Islamic theology or Muslim
personal law, this commentator takes recourse to the prescriptions by
the Quran, which clearly outlines the process of separation or divorce
in various verses. The specific translated verses are reproduced below
for purposes of clarity. For larger interests the reader would be better
served by referring, in addition, to other verses, their translations,
annotations and explanations documentated by Yusuf Ali in the same
chapters.

Surah II, verses 236 There is no blame on you If ye divorce women Before
consummation Or the fixation of their dower; But bestow on them (A
suitable gift), The Wealthy According to his means, And the poor
According to his means:- A gift of reasonable amount Is due from those
Who wish to do the right thing Surah IV, verses 35 If ye fear a breach
Between them twain,

Appoint (two) arbiters, One from his family, And the other from hers, If
they wish for peace, God will cause Their reconciliation: For God hath
full knowledge And is acquainted with all things Surah LXV, verses 2.
Thus when they fulfil Their term appointed, Either take them back On
equitable terms Or part with them On equitable terms; And take for
witness Two persons from among you, Endued with justice, And establish
the evidence (As) before God. Such Is the admonition given To him who
believes In God and the Last Day. And for those who fear God, He (ever)
prepares. A way out.

It is more than obvious from these verses and the explanations by Yusuf
Ali that: (a) There is no mention of the triple talaq in the Quran. (b)
Reconciliation is the most significant remedy recommended. (c) Witnesses
and arbiters have to be entertained before the final separation and (d)
A minimum of four months should pass before the Talaq is completed thus
giving time for reconciliation. With the perambulations it would be more
than justified to consider that the traditional triple Talaq is an act
of blasphemy which goes against the tenets of the Quran. The verses in
translation by Yusuf Ali are reproduced in original form for those who
brandish the sword of triple Talaq on the beleaguered Muslim women.
Specific time periods for the pronouncement of divorce, compensation to
the women in such instances and responsibilities of the male partner are
distinctly delineated to the extent that there is no scope for the
existing tradition of the triple Talaq. It should be emphasied that the
verses reiterate reconciliation at every step with divorce as the most
heinous practice should be the last resort and even then it should be
adjudicated by arbitrators chosen from the husband's and wife's
families. It is more than obvious that the practice of the triple Talaq
is a tradition which originated subsequent to the relevation of the Holy
Book to the Prophet and is an interpretation of convenience which is
perhaps remotely permissible in the most exceptional circumstances
rather than what has become the order of the day.

Some segments of the Muslim community object to the abolition of the
triple Talaq with the slogan that those favouring its abolition are
attempting to misinterpret the Quranic tenets. Such slogans misinform
the public, the legal profession and the judiciary. In fact, it is they
who distort the Quran, precipitating a disservice to the Muslims at
large since the Quran is devoid of any mention of the triple Talaq.
Sadly, the Muslim ``clergy'' have been of no help since each of them
wants to inflate his ego.

Several ecclesiastical scholars of Islam have commented on the
oft-quoted permission to polygamy in the Muslim community. To put it
simply and succinctly, monogamy is the prescribed tradition in the
Quran. The verse concerned and the related annotation are reproduced in
its full text from the Quran translated by Yusuf Ali:

Surah IV. verses 3 If ye fear that ye shall not Be able to deal justly
With the orphans, (508) Marry women of your choice, Two, or three, or
four, But if ye fear that ye shall not Be able to deal justly (with
them), Then only one, or (a captive) That your right hands possess. That
will be more suitable, To prevent you From doing injustice (509)

508: Notice the conditional clause about orphans, introducing the rules
about marriage. This reminds us of the immediate occasion of the
promulgation of this verse. It was after Uhud, when the Muslim community
was left with many orphans and widows, and some captives of war. Their
treatment was to be governed by principles of the greatest humanity and
equity. The occasion is past, but the principles remain. Marry the
orphans if you are quite sure that you will in that way protect their
interests and their property, with perfect justice to them and to your
own dependents if you have any. If not, make other arrangements for the
orphans.

509: The unrestricted number of wives of the ``times of ignorance'' was
now strictly limited to a maximum of four, provided you could treat them
with perfect equality, in material things as well as in affection and
immaterial things. As this condition is most difficult to fulfil, I
understand the recommendation to be towards monogamy.

To blame the legal profession and judiciary for the problems arising out
of a Muslim divorce or polygamy would be a crime since the ``clergy'',
the polity and intelligentsia have failed miserably. They have not even
precipitated a set of codification for the Muslim personal law which the
administering authorities could use. The result: a thousand
interpretations of a Holy edict.

One's house can only be set in order when discipline emanates from one's
own intellect. Short of this demands of a society will perforce result
in intrusion by the state and the judiciary to set the house in order.
So far the ``clergy'', the polity and the intelligentsia have
precipitated no order in the ``house'' and therefore the least of the
disciplined function by any set of law-abiding, intellectually sane
Muslim moiety would be to dissuade themselves from thoughtless and
unnecessary interference in the fruitful interpretation of the holy
edicts enshrined in the Quran. In short, it behoves the Muslim
community, polity and clergy to see to it that the Muslim personal law
as it appears to any Muslim of our country is codified. The judiciary
should make sure that the triple Talaq and polygamy are abolished so
that the women in the future can live in peace.

Dr. ZAHEER AHMED SAYEED