The All-India Muslim Personal Law Board has been mulishly opposed to abolishing triple talaq, which is a procedure a Muslim adopts to divorce his wife by pronouncing talaq three times in one sitting. Most recently, the AIMPLB has expressed disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq.
The AIMPLB’s position is in sharp contrast to the dominant trend worldwide. As many as 22 Muslim countries – including Pakistan and Bangladesh – or their provinces have abolished triple talaq either explicitly or implicitly.
The list includes Turkey and Cyprus, which have adopted secular family laws; Tunisia and Algeria and the Malaysian state of Sarawak, which do not recognise a divorce pronounced outside a court of law; and Iran, where triple talaq doesn’t have validity under its Shia law.
The invidious procedure of triple talaq is confined to the Sunnis alone, not only in India, but around the world.
It has often been argued in India that religious minorities of any country are relatively impervious to change. They fear any alteration in their practices could lead to them losing their religious identity. But this apprehension doesn’t afflict the Muslims of Sri Lanka, where they constitute a little less than 10% of the population.
Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, doesn’t recognise instant divorce. This is because the law requires a husband wishing to divorce his wife to give notice of his intention to a qazi (Islamic judge), who should attempt reconciliation between the couples over the next 30 days. It is only then the husband can give talaq to his wife – that too, in the presence of the qazi and two witnesses.
In his paper, Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change, Dr Muhammad Munir, Professor of law and Director of the Shariah Academy, International Islamic University, Islamabad, rates the Lankan law as the “most ideal legislation on triple talaq.”
Intense debate
Whether or not Sunni Muslims in India can or should reform triple talaq has been a matter of intense debate in the community for nearly a century. Even their jurists believe that the Ahsan (best) method of divorce requires the husband to give a talaq to his wife in her tuhr, or menses-free time. He can withdraw the talaq during the iddat, or waiting period, which is of approximately three months. Should he not do so, divorce kicks in after the expiry of the iddat. However, the divorced couple can remarry at a future date, precisely why this talaq is calledAhsan.
A talaq is called Hasan (good) when the husband divorces his wife a second time, following the same procedure adopted in the first instance. Once again, the husband is permitted to withdraw the talaq before the period of iddat expires. Once again, the divorced couple can remarry in the future should they so wish.
However, a talaq given the third time dissolves the marriage forthwith. There is no waiting period, no room for reconciliation, and the divorce is irrevocable. The divorced couple can remarry only if the woman marries another man and who subsequently divorces her. This system of an intervening marriage before the triply divorced couple can remarry each other is called Halala.
The Halala system is often exploited to overcome the Islamic prescription prohibiting couples from remarrying after they have been divorced thrice. Typically, the ruse involves the triply divorced couple entering into an underhand agreement with another man who marries the woman and divorces her thereafter. She is then legally free to marry the man who had divorced her thrice previously.
It might seem amusing that a woman would wish to marry the husband who has divorced her thrice, but this is precisely where the harshness of the procedure which has the husband pronounce talaq thrice in one sitting is brought out vividly. Called Talaq-ul-Bidat, it is perhaps as old as Islam itself.
Under Talaq-ul-Bidat, the husband adds “triple” to the word talaq, or simple repeats three times thus, “I am giving you talaq, I am giving you talaq, I am giving you talaq.” This has the same consequences as an irrevocable divorce and the marriage is dissolved immediately. The couple can re-marry only through the system of halala. Paradoxically,Talaq-ul-Bidat is deemed “sinful but effective.”
Usually, the quickest way a husband can irrevocably divorce his wife is to pronounce talaq in three successive tuhrs, or menses-free time. In their book, Introduction to Islamic Law, Dr Tahir Mahmood and Dr Saif Mahmood, note, “Three consecutive tuhrs (menses-fee time) are the minimum period allowed for this period – certainly not a fixed period for it to be followed in every case.”
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