Triple Talaq: From Prescriptive Functionalism to Transformative Constitutionalism

   Author: Dr Nafees Ahmad*

India is confronted with a situation that has acquired, unfortunately, political primacy in a gender equality discourse. The religion of Islam bestowed upon equal rights for men and women devoid of any distinction including right to divorce. The utopian union of the husband and wife is a perennial pre-requisite for conjugal covertures in all civilized societies. Invariably, all religions advocate a normative framework for procreating a society based on gender equality and Islam is also one of them. Islam, therefore, insists upon the synovial subsistence of a bridal brolly where under husband and wife are basking.  Primarily, no marriage is contract in Islam to be dissolved in future.  But in rare-avis situations this celestial celebration may come to an end owing to the mawkish megrims of the spouses, particularly of men, though a divorce may be either by an act of husband or by an act of wife.

In pre-Islamic Arab World pertinent power of divorce (Talaq) possessed by the husband was recklessly unlimited.  Pronouncements and revocations of Talaq were devoid of any recondite reasons and judicative justifications whatsoever. In post-Islamic Arab World, when Holy Prophet hood was bestowed upon the Prophet of Islam (PBUH) who looked upon these concupiscent customs of divorce with dissentient disdain and disapproval.  Prophet of Islam (PBUH) regarded pervert practice as callously calculated to hamstring the foundation of society.  Prophet (PBUH) had to immaculately inculcate Islamic injunctions and teachings in the macabre minds of Arabs who were acquiesced in brutalisation, dehumanisation and subjugation of women from cradle to cremation. They revelled in polygamy and polyandry, and misogyny and polygyny without any submission to the supremacy of the Supreme Being; The Almighty Allah. Prior to Islam a husband could desert his wife at a moment’s notice. His repudiation (Talaq) of his wife operated as an instant and final denouement of the conjugal contract.  This right of repudiation exercised by the husband stemmed from his exalted position as a purchaser of wife since the institution of slavery and manumission was rampant.

The Holy Quran, of course, virtually suspended the effects of sufferance of severance of matrimony until the expiry of the “waiting period” (Idda) which was to last until the wife had completed three menstrual cycles or in case of her being pregnant, until delivery of the child. This period is, primarily, designed and emplaced to provide an opportunity for reconciliation between the spouses as per the Quranic injunctions, meanwhile wife is entitled to maintenance from the husband.  But it should be remembered that the Prophet (PBUH) pronounced “Talaq to be the most detestable before God of all permitted things“.  Thus, divorce being an evil; it must be eschewed as far as possible.

There are Quranic forms of Talaq, which are most compatible with gender justice, medical morality, human honour, and personal parity.  Talaq is an Arabic word its literal meaning is “to release” or “taking off any tie or restraint” or “removal of the restrictions of Nikah” and in Islamic jurisprudence it signifies the repudiation of marriage or dissolution of marriage i.e. divorce.  There are different modes of Talaq ordained in the Holy Quran.  There are two kinds of Talaq sanctified in the Holy Quran and approved by the Holy Prophet (PBUH) One Talaq-ul-Sunnat (revocable divorce) having two forms  Talaq-i-Ahsan (Most Proper Divorce) and Talaq-i-Hasan (Proper Divorce).  Two is Talaq-ul-Biddat (Innovative Divorce) which is irrevocable and pronounced thrice in one sitting and operates with immediate effect and better known as Triple Talaq.

Triple Talaq is a recognised form of divorce in the contemporary legal regime in India or Muslim Law as administered in India. Muslim jurists have perceived it as a novel innovation in Sharia Law.  It was not there in the initial two years of the lifetime of the first Caliph Abu Bakr and second Caliph Umar, the great.  But, subsequently, Triple Talaq was allowed exclusively in some special circumstances.  For example, when Arabs had conquered Egypt, Iraq and Syria etc, they found that women of these countries were more beautiful than those of their own wives.  Consequently, they decided to marry with them.

Consequently, this form of Triple Talaq is continued to enjoy spiritual and temporal legitimacy at one hand and judicial recognition on the other hand in India.  The jalopy of justice in any democratic dispensation is put on by the highest judicial establishment of the country and it was made possible in India when Supreme Court held scales even on ecclesiastical law in the case of Shamim Ara V. State of U.P (2002) that Holy Quran stipulates Talaq must be pronounced on cogent, plausible and reasonable grounds and prior to thereof spouses must appoint two arbitrators and they should make all efforts for reconciliation and resolution.  Having failed all efforts, Talaq shall come into effect. Therefore it can be rightly inferred therefrom that the apex court of the land has duly rejected the prescriptive functionalism of Triple Talaq and moved ahead to achieve the majesty of transformative constitutionalism.

The Islamic raison d’etre has never been to confer an absolute authority of Talaq upon a husband to be misused by him by uttering few words, which signify his intention of divorce.  But there should be a subjective element in the intention of husband with regard to divorce thought it is generally not there.  Therefore, Talaq-ul-Sunnat is regarded to be the divinely approved form of Talaq. It is called as Talaq-ul-Sunnat because it is based upon the tradition (Sunna) of Prophet Muhammad (PBUH).  Prophet always considered Talaq as an evil.  If at all this was to happen, the best formula was one in which there was possibility of reconsideration and revocation of the consequences of this evil.  Having cogitated upon, the Prophet recommended only revocable Talaq, whereby the evil repercussion and ramifications of Talaq do not become final at once as Talaq-ul-Sunnat is founded upon the bejewelled principles of natural law as it do contemplate the possibility of compromise and reconciliation between conjugal candidates.  Only this form of Talaq was in practice during the life of the Prophet.  This mode of Talaq is recognised beyond the Shia and Sunna dichotomy.

However, Talaq-ul-Hasan is also regarded proper and approved form of Talaq and has provision of revocation.  But the words of Talaq are to be pronounced three times in the successive periods of purity.  It is immensely important to note that the husband may revoke the first and second pronouncements either expressly or by resuming conjugal canopy of cohabitation and consummation and same tantamount to as if no Talaq was made at all.  But if third pronouncement in the third period of Tuhr (purity) is made, Talaq becomes irrevocable and marriage is repudiated and the wife observes Idda.

It is well-established fact that Talaq-ul-Sunnat is the most appropriate, cogent, meaningful, plausible and reasonable mode of repudiation of bridal bond sanctified and warranted by the Holy Quran.  Thus, law is the revealed will of Almighty Allah in classical Islamic theory and a divinely ordained system rather than a science of the positive law emanating from judicial tribunals.  However, the standards of religious law and the demands of political expediency do not go together and perhaps the arbitrary authority of the political pontiffs influenced the Muslims Ulema to adopt a discretionary divagation of ignoring rather than denying, though Islamic jurisprudence is functional jurisprudence resulting in the Islamic social engineering which has tantalised and galvanised the Sharia law in Egypt, Iraq, Morocco and Pakistan etc. wherein rigid dictates of traditional law and the demands of modern society have been reconciled through Islamic legislation and codification founded upon the Holy Quran and Hadith or Sunnah (Tradition), Ijma (consensus of juristic opinions), customs and usages and juristic deductions like Qiyas (analogy), Istihsan (preference), Istidlal (deductions by logic and reason), Ijtihad (interpretation) and Taqlid (The principle of strict adherence to the law as expounded in the authoritative legal manuals). And on this basis it would appear that Islamic jurisprudence could implement and preserve its fundamental and unique ideal of a way of life based on the command of God (Almighty Allah) in most practical and modernist terms.

But, unfortunately, the recent conglomerate of All-India Muslim Personal Law Board (AIMPLB) has stultified the entire agenda of reforms contrary to the expectations of the people of India.  But this turned out to be a damp squib.  It was expected of AIMPLB would take the most important decision of abolition of Triple Talaq and adopt a model “Nikahnama” (marriage contract)  based on equity, justice and gender parity as ordained in the Holy Quran.  But it has adopted a policy of procrastination and entire Muslim community put on tenterhooks.  This regressive and ridiculous practice of Triple Talaq is nothing but an exercise to sustaining primordial and parochial practices in the name of Islam to subjugate Muslim women that might generate revulsion among the Muslim masses beyond human control in times to come.  Therefore, massy reality must be attended at the earliest with dexterity and maturity by the AIMPLB.  Moreover, AIMPLB has lost an opportune opportunity of proving its own acceptability and credibility in a democracy because democracy demands decision with accountability and AIMPLB is accountable to the Muslims of India.  Although, AIMPLB is an organisation without any legal status but it has been recognised as the body to attend on religious affairs of Muslims who have pinned down their hopes in the collective wisdom of this body. At the same time, AIMPLB is faced with primordial perceptions and parochial pursuits of its members.  But it wields considerable weight among the Muslims and has been playing a role since its inception, which is being appreciated by all and sundry.

Therefore, it would be in the fitness of things that AIMPLB must address the issue of Triple Talaq, model Nikahnama, family planning, Codification of Muslim personal law and socio-economic backwardness of Muslims and issues and problems identified by the Sachchar Committee. The codification of Muslim Personal Law must be done as directed by the Holy Quran and Hadith to establish the unity, unanimity and ubiquity in legislative, executive and judicial actions in a secular state like India as enshrined under Articles 14, 15, 21, 25 and 26 of the Constitution of India. The issue of Triple Talaq must be resolved in conformity with the Islamic jurisprudence wherein ample scope of reform of Muslim law on this mode of divorce has been provided through ijma and taqlid.  Moreover, it should not be forgotten that Triple Talaq does not find any sanction whatsoever anywhere in the Holy Quran.

* Ph.D. (International Refugee Law & Human Rights), LL.M. (International Law & Human Rights), LL.B. (H) B.A. [(H)-Anglo-American English Literature], Assistant Professor of International Law, Faculty of Legal Studies, South Asian University-New Delhi-110021 I am immensely thankful to Prof. James C. Hathaway, University of Michigan-USA, for his highly valuable inputs and comments on the draft of this Article. I have introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, IHL and International Refugee Law.  Presently, I am pre-occupied with developing a course module Comparative Islamic Law in South Asia. I have been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall& Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA.

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Triple Talaq