Thalaq in Qur'an

Divorce (Talaq) was in practice among pre-Islamic Arab tribes which was quite unfair to the married women .It was very common that either in caprice or in anger the husband sweared by Allah not to approach with his wife, thus deprived her conjugal rights. She was kept tied with her husband indefinitely and was deprived of marrying with another man. The practice followed was that at the expiry of the waiting period she was again addressed and again was deprived of conjugal rights in the same manner. It was repeated again and again and she had to face it a couple of times with no chance of getting rid of her husband. Islam, through Quranic injunctions, forbade it and ordained laws for divorcing wife or separation mooted by the wife from her husband. In the first place Quran disapproved thoughtless oaths and it insisted on proper intentional oaths being carefully observed. Secondly, a time period of 4 months was fixed to make up their minds (husband and wife) and finally decide once for all either to depart or live together.

Divorce of course is a very unpleasant event and quite disturbing for the couple (and the children, if the family has). The wife is more adversely affected than the husband who can re-marry quite easily than his ex-wife.

Because incompatibility is on the increase so do the likes and dislikes and dislikes are becoming diverse, the society being afflicted with that, Christians, Jews and other Non-Muslims gradually started to adopt divorce. Both among Christians and Jews, divorce is possible through judicial procedure and courts require a waiting period, thus providing time for re-thinking and reconciliation and reconsideration. Among the Hindus it also became possible through the Hindu Marriage Act 1955, although the marriage is considered as a spiritual union. Here too the courts hear both the parties, first persuade the couple to reconcile, as done in the case of Krishma Kapoor and her husband late in 2005, otherwise it takes time to divorce legalized. The time required may take years during which reconsideration is possible. Among the societies which borrowed it from Islam there is enough opportunity available for reconsideration and reconciliation, but in the social system which is endowed with the eternal book and its Commandments, Talaq has been made so easy in four out of 5 sects (other than the Imamaia sect) that saying Talaq thrice in one sitting or sending a letter to the wife completes the Talaq which is in contravention of very explicit injunction of the Holy Quran (1).

The Holy Quran has laid down the eternal laws, being eternal; as ought to be believed by every sect of Muslims, either they do not remember it or forget it while practicing rituals. The Holy Quran has also laid down rules very extensively to be followed before the divorce is sought by husband or separation is sought by a wife. If the Holy Quran and the Quranic injunctions are eternal and not needed to be altered, which is the belief of all the sects, the procedure for divorce cannot be altered or amended by any human being, any authority what to say by rulers and kings. As it is the claim of the Holy Quran itself, if we have abrogated any “Aayah”, we have replaced it with another which has not happened in the case of Talaq. As Muslims believe no new Messenger has to come till the Day of Judgment nor any fresh revelation is possible.

All faithful Muslims are bound to follow the laid down procedure for divorcing wives if it has to be Quranic and Islamic otherwise they are aberrations and are not Islamic. In practice there are some schools among Muslims who do not adhere to the Quranic tenets and divorce has been effective for more than 1300 years. Due to the intervention in divine laws, the Indian Civil courts invalidates three Talaq in one go. A meek voice has started to arise contending that “Quran and Hadees are unable to cope with the present day human problems and activities” (2), instead of doing what was followed during the life time of the Holy prophet and Ordained , within 15 years of the demise of the Holy prophet. Commandments were modified for which the Holy Prophet himself was not allowed to abrogate and change, what to speak of rulers of the post Prophet era. It is presently being supported by the contention “that social conditions are subject to change and religious laws are static” (3). The same author , in order to justify what was done by the 2nd Caliph and which is against the eternal law, opined that some jurists have gone to the extent that “ Muslim Rulers may have the right to amend the laws ordained”. (4). All the preceding three contentions show a lack of understanding and reflect a lack of belief in the eternity of Quranic injunctions. As a matter of fact those who either talk of compatibility of Hadees and empowerment of Jurists to amend the ordained laws failed to remember that the Holy Prophet himself was directed by revelations to refrain from forbidding for himself anything which was made lawful by Allah for him, in order to please his wives (5). Discussion on this is not within the purview of this part.

Among Christians, divorce can be affected through courts which require a waiting period for reconciliation during which the two parties can revise their decision and can re-start living together as husband and wife. Among the non-Muslims in India by and large the same procedure is followed but because of overburdened courts the time taken becomes longer than stipulated.

Among Muslims there are Five Schools of Jurisprudence,Hanifi, Maliki, Shafai ,Hanbli and Jafari. In the first four, Talaq (divorce) becomes effective by saying Talaq thrice in one sitting which is totally against Quranic injunctions. The practice has gone that much far , that barring followers of Jafaria sect and Malikis, if the words are uttered in the state of anger and insanity the Talaq is not considered as void. Lately in some Muslim countries, Bangla Desh, Pakistan, Indonesia, Malasya, Iraq (among Hanafees) Libya, Turkey and Syria three Talaqs in one sitting are not permissible any more, which is in line with the Quranic injunctions. In India the Civil courts have not accepted and legalized three Talaqs pronounced in one sitting (6). The courts have maintained that the right of husband to divorce his wife in one sitting are not tenable in Law. The court has also given a verdict that Talaq (Talaq-e-Bidat) may be a part of Sharia Law or part of Muslim Personal Law but it was started during the early post-Prophet era (during the reign of the 2nd Caliph). According to Shariat Act 1937, Clause 2, Talaq cannot be effective legally .It is also against Article 372 of the Indian Penal Code and cannot be implemented (7).

In the Holy Quran the ‘Aayahs’ about Talaq are 11 in Surah ‘Baqr’, 4 in Surah ‘Nisa‘ 1 in Sura Ehzaab and 2 in Surah ‘Talaq ‘, If these Aayas are taken to be ordained, as they are, by no stretch of imagination one can justify pronouncing Talaq thrice in one sitting which is not in conformity with Quran or reliable Ahadees. If it is modified or altered it is against Quran which indicts people who do that.

“And whoever does not judge by what Allah has revealed (then) such (people) are the ‘Fasiqueen’ [The rebellions i.e. disobedient of a lesser degree] to Allah (5-5-47).

What Quran ordains for Talaq is as under:

“For those who take an Oath for abstention From their wives, A waiting for four months is ordained: if then they return Allah is oft-forgiving, Most merciful” (2-2-226 ).

“But if their intention is firm for divorce, Allah hearth And knoweth all things (2-2-226)

Divorced women shall wait concerning themselves for 3 monthly periods. And it is not lawful for them to hide what Allah hath created in their wombs. If they have faith in Allah and the Last Day, and their husbands have the better rights to take them back. In the period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable, but men have a degree over them, and Allah is exalted over power”. (2-2-228)

The above ‘Aayahs’ do not prescribe how “Talaq” is going to be completed. The following “Aayah” reads :

A divorce is only permissible twice after that, the parties should either hold together on equitable terms or separate with kindness . It is not lawful for you (men) to take back any of your gifts (from your wives), axcept when both parties fear that they would be unable to keep limits ordained by Allah. If ye (judges) do indeed fear that they would be unable to keep limits ordained by Allah. There is no blame on either of them if she give something for her freedom (Khula), These are the limits ordained by Allah. So do not transgress them. If any do transgress, the limits ordained by Allah, such persons wrong (zalemeen) (themselves as well as others) (2-2-229)

So if a person divorces his wife (irrevocably) he cannot after that, re-marry her until after she has married another husband and he divorces her. In that case there is no blame on either of them if they unite (re-marry), provided they feel that they can keep the limits ordained by Allah, which He makes plain to those who know”. (2-2-230)

“When you divorce women, and they (are about to) complete the term of their ‘Iddah’, either take them back on equitable terms or set them free on equitable terms: But do not take back to injure them , ( or ) to take undue advantage , if anyone does that , he wrongs his own soul. Do not treat Allah’s sign as jest. But solemnly rehears Allah’s favour on you, and the fact that He sent down to you the Book for your instructions, and fear Allah. (2-2-231)

“When you divorce women and they complete the term of their (Iddah), do not prevent them from marrying their (former) husbands , If they mutually agree on equitable terms. This instruction is for all amongst you, who believe in Allah and the Last Day. This is (the course making for) most virtue and purity amongst you. And Allah knows, and ye know not “. (2-2-232)

The above ‘Aayahs of Sura Baqar do not specify and lay down how the divorce will be completed and will take the conclusive shape, there appears to be no explicit or implicit step to complete divorce.Then there are following ‘Aayas’ from Sura ‘Nisa’ which do not lay down the procedure how the divorce will be conclusive.

“O ye who believe : You are forbidden in inheriting women against their will. Nor should ye treat them with harshness, that ye take away part of that you have given them-except where they have been guilty of manifest indecently. On the contrary live with them on a footing of kindness and equity .If you take or dislike to them .It may be that you dislike a thing and Allah brings over through it a great deal of good”. But if you decide to take one wife in place of another, even if you have e the latter a whole treasure for dower, take not the least bit of it back; would you take it by slender and a manifest sins” (4-4-19 and 20)” And how could you take it when you have gone into each other, and they have taken from you a solemn covenant” (4-4-21).

One does not get any clue how the divorce will be completed from the above ‘Aayas’.

We go further and find “men are the protectors and maintainers of women, because Allah has given, the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (husband’s) absence what Allah would have them guard. And to those women on whose part ye fear disloyalty and ill conduct. Admonish them (first), next refuse to share their beds, (and last) beat them (lightly). Bur if they return to obedience, seek not against them means of (annoyance) For Allah is Most High, Great “ (4-4-34)

“If you fear a breach between them twain, then appoint (two arbiters) one from his family, and the other from hers. If they seek to set them right, Allah will cause their reconciliation. For Allah hath full knowledge and is acquainted with all things “ (4-4-35).

From all the ‘Aayas‘ of Nisa one can infer that all efforts shall be made to avoid the dissolution of marriage and arbiters can be found to resolve the difference between the husband and wife. Islam aims to maintain the marriage as for as possible and provides opportunities for reconciliation in different ways . A period of waiting (Iddat) for three menstruation periods is prescribed in order to reconsider if the separation can be avoided This closes the path of pronouncing three talaqs in one sitting as has been practice in the four of the five sects of Muslims in India. There are no definite steps to taken for the conclusion of divorce, from the ‘Aayas‘ of ‘Nisa’ above . The last of the ‘Aaya‘ from ‘Nisa’ states that “But if they separate, Allah will provide abundance for each of them from His All-reaching bounty. That careth for all and is Wise’. (5-4-130). So finally if this happens, however undesirable and painful it is, then the Almighty will enrich from its own treasures.

Then there is one ‘Aaya‘ from ‘Ehzaab‘ which is about the marriage with those pious women with whom at the time of marriage no dower was settled and before the consummation of marriage they are divorced. It is not required from them to observe the waiting period (Iddat)

“And ye who believe when you marry believing women, and then divorce them before it is consummated, no period of Iddat have you to count in respect of them. So give them gift and release them in handsome manner “ (22-33-49)

Now let us examine the two ‘Aayas‘ of ‘Sura Talaq’ which explicitly lay down the procedure how ‘Talaq’ will be completed and becomes effective, the two ‘Aayas‘ contain all conditions which have been mentioned in different ‘Aayas’ of Quran referred so far. Divorce was so important that a separate ‘Sura’ was revealed and is named as ‘Talaq’. The ordained procedure has not been followed rather floured , except in one of the sects, in most of the sects Talaq is pronounced and performed in a manner which is not in conformity with Quranic injunctions . It is prevalent from the time of the 2nd Caliph in the first century (Hijri), the jurists were to accord what the then rulers wanted. The then Muslims , in the third generation of converts to Islam were more interested in getting the booty of the wars which were won and they were averse to follow Quran and Sunnat. Their tribal traditions continued as such. Since some of the their ancestors were killed in the wars fought during the life time of the Holly prophet, their intentions too were not to retain the basic teachings intact rather to distort and dilute the tenets.