KashifAsrar
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An article on editorial page of ToI dated 16th July 2007.
Kashif
Triple talaq isnt Islamic
Ather Farouqui
When a case of triple talaq comes into the limelight, it is taken to typify unfair and archaic treatment of women in Islam. While this practice is barbaric and unjust, its condemnation by non-Muslims is grounded in ignorance of Islam.
There is no mention, let alone legal sanction, for the prevailing practice of triple talaq in the Quran. This absurdity of unilateral quick divorce is a gift from the British (Privy Council) in l932 in the case Rashid Ahmed versus Nisa Khatoon of Moradabad (UP). In that case, the husband repudiated his wife by the pronouncement of three talaqs without pausing for breath (perhaps in momentary rage after a marital dispute), but they continued to live together as husband-wife and had five children after that episode.
These children were accepted as legitimate by Muslim society. After their fathers death, however, when the children claimed their share of inheritance, the Privy Council asked them to furnish proof of the legitimacy of their parents remarriage (halala). As per the provisions of halala, the wife, after the first divorce, has to marry some other man and that marriage must actually be consummated. Only after such consummation can she ask for a divorce from the second husband and return to the first, if she wishes to remarry him. In the Rashid Ahmed case, this halala ritual did not take place. So the Privy Council held the five children born to the couple as illegitimate.
This ruling of the Privy Council was treated as holy writ by every maulvi of the Hanafi sect in India. For many mullahs remarriages of spouses caught in this predicament have become a good source of income and exploitation. These mullahs get married to the divorced wives, consummate the marriages, and demand money to divorce them. Sometimes they exploit these women sexually over a longer period of time.
While most Muslim sects in India do not follow this ridiculous practice, they do not prevent the Hanafis from indulging in it. Strange as it may seem, divorce rulings based on the Muslim Personal Law, in fact, follow the 1932 diktat of the British Privy Council later codified as the Dissolution of Muslim Marriages Act, 1939 and not the Quran. The Privy Council came up with this unjust ruling to appease a certain section hiding behind the mask of religion.
When the ruling was codified as an Act, Mohammad Ali Jinnah strongly opposed the provision on the ground that only a Muslim judge was eligible to deliver a verdict in cases of dispute related to Muslim marriages. This prevented further exploitation of the victim in the name of talaq. A divorce leads to complications on property disputes, alimony and custody rights.
Non-Muslims know little about this unjust law, believing that triple talaq is legitimised by Islam. Muslims are, in fact, free to follow any school of Islamic jurisprudence. As compared to Sunni schools, the Shia school seems more liberal in its ruling regarding daughters as heirs where there is no male heir.
Jinnah bequeathed a large part of his property in Pakistan to his daughter Diana (mother of Nusli Wadia of Bombay Dyeing). But since his daughter and his grandson did not claim their rights over the property, his property became disputed among the rest of his heirs living in Pakistan. Jinnah was a Shia, but due to political compulsions he did not declare his sect in his will. The Karachi high court pondered over the case for several decades, after which there was an out-of-court settlement among those who had claimed the property.
In many Muslim countries, especially Egypt and Pakistan, court judgments do not approve the practice of triple talaq. These countries have made efforts to harmonise the rules between the different systems of Muslim law. The Pakistan supreme court adopted the principle that breakdown of marriage was reason enough for a wife to claim divorce as a right, without having to allege fault on the part of the husband. Unfortunately, in a supposedly more liberal India, Muslims cannot even dream of such a law.
The writer is a commentator on Muslim issues.
Kashif
Triple talaq isnt Islamic
Ather Farouqui
When a case of triple talaq comes into the limelight, it is taken to typify unfair and archaic treatment of women in Islam. While this practice is barbaric and unjust, its condemnation by non-Muslims is grounded in ignorance of Islam.
There is no mention, let alone legal sanction, for the prevailing practice of triple talaq in the Quran. This absurdity of unilateral quick divorce is a gift from the British (Privy Council) in l932 in the case Rashid Ahmed versus Nisa Khatoon of Moradabad (UP). In that case, the husband repudiated his wife by the pronouncement of three talaqs without pausing for breath (perhaps in momentary rage after a marital dispute), but they continued to live together as husband-wife and had five children after that episode.
These children were accepted as legitimate by Muslim society. After their fathers death, however, when the children claimed their share of inheritance, the Privy Council asked them to furnish proof of the legitimacy of their parents remarriage (halala). As per the provisions of halala, the wife, after the first divorce, has to marry some other man and that marriage must actually be consummated. Only after such consummation can she ask for a divorce from the second husband and return to the first, if she wishes to remarry him. In the Rashid Ahmed case, this halala ritual did not take place. So the Privy Council held the five children born to the couple as illegitimate.
This ruling of the Privy Council was treated as holy writ by every maulvi of the Hanafi sect in India. For many mullahs remarriages of spouses caught in this predicament have become a good source of income and exploitation. These mullahs get married to the divorced wives, consummate the marriages, and demand money to divorce them. Sometimes they exploit these women sexually over a longer period of time.
While most Muslim sects in India do not follow this ridiculous practice, they do not prevent the Hanafis from indulging in it. Strange as it may seem, divorce rulings based on the Muslim Personal Law, in fact, follow the 1932 diktat of the British Privy Council later codified as the Dissolution of Muslim Marriages Act, 1939 and not the Quran. The Privy Council came up with this unjust ruling to appease a certain section hiding behind the mask of religion.
When the ruling was codified as an Act, Mohammad Ali Jinnah strongly opposed the provision on the ground that only a Muslim judge was eligible to deliver a verdict in cases of dispute related to Muslim marriages. This prevented further exploitation of the victim in the name of talaq. A divorce leads to complications on property disputes, alimony and custody rights.
Non-Muslims know little about this unjust law, believing that triple talaq is legitimised by Islam. Muslims are, in fact, free to follow any school of Islamic jurisprudence. As compared to Sunni schools, the Shia school seems more liberal in its ruling regarding daughters as heirs where there is no male heir.
Jinnah bequeathed a large part of his property in Pakistan to his daughter Diana (mother of Nusli Wadia of Bombay Dyeing). But since his daughter and his grandson did not claim their rights over the property, his property became disputed among the rest of his heirs living in Pakistan. Jinnah was a Shia, but due to political compulsions he did not declare his sect in his will. The Karachi high court pondered over the case for several decades, after which there was an out-of-court settlement among those who had claimed the property.
In many Muslim countries, especially Egypt and Pakistan, court judgments do not approve the practice of triple talaq. These countries have made efforts to harmonise the rules between the different systems of Muslim law. The Pakistan supreme court adopted the principle that breakdown of marriage was reason enough for a wife to claim divorce as a right, without having to allege fault on the part of the husband. Unfortunately, in a supposedly more liberal India, Muslims cannot even dream of such a law.
The writer is a commentator on Muslim issues.
