Talaq and Uniform Civil Code
Author: P. Zainulabideen (a) PJ
The debate is ferociouslygoing onto change the Muslim Personal Law which is affirmed by the Indian Constitution, and Talaq system is harmful to women and that this should not be permitted in India.
As per the Islamic law, if the Husband do not like his Wife, he is provided with three chances to divorce her. He can re-join and live with her after divorcing her once. Later, can divorce her another time and rejoin and live with her. And after this if he divorces her the third time, cannot re-join and live with her further. This is the Islamic way of Talaq. (Which will be later illustrated in detail).
Some Muslims, ignorant of the fact that they are given three chances, separate the couple by using three Talaqs at once. However, in accordance with the teachings of Prophet Muhammad (SAW) using three talaqs at once was considered as only one Talaq. The practice of some Muslims in contrary is to treat three talaqs used at once as three. (This is also elaborated later)
There are Indian Muslims who follow the concept of Madhab (Scholars individual view). They are those who believe that using three talaqs at once as three and that divorce is done deal.
The people belonging to the Jamaaths( Congregation of Community) opposing Madhabs, namely Ahle Hadiths, Mujahids and ThowheedJamaathare in principle that three Talaqs told at once is also considered as one.
During the British rule in 1937, when the civil laws were renovated for each Community, they tried to abolish the law of separating forever by using three Talaqs at once. But, the effort of British went in vain because of the opposition on the then influentialDevbandMadrasa. Hence, this state still exists in Liberated India.
The current confusion is because of the in-appropriate methodology of the Supreme Court in dealing with the cases filed by three women with respect to three Talaqs.
The detail is as follows:
SairaBanu of Uttarakhand, awoman belonging to Jaipur Rajasthan, awoman belonging to Kolkata filed cases opposing Muttalaq. Though the case pertaining to Muttalaq is not in accordance with Islam, once these cases traversedbeyond the lower courts, it was taken up by Supreme Court as one case.
This is opposed by All India Muslim Personal Law Board and someMuslim organizations.
Muttalaq system is not prevailing in Ahle Hadiths. It was not prevalent during Prophet Muhammads time. Since the women who filed case have sought for the Islamic law which was prevailing during Prophet Muhammads time, Court could have given a verdict that Muttalaq is one Talaq. Courts have given similar verdicts in the past. If such a verdict would have been given, majority of the Muslims wouldnt have felt that felt as an interference in the Muslim personal law. Instead, would have considered the verdict to be in favor of one section the community.
When Hanafis and Ahle Hadiths previously approached the court in several disputes, courts had previously given judgment that Ahle Hadiths have right to act according to their doctrine.
Moreover, courts are giving Shariah verdict in accordance with the Shafi Madhab in Kerala and Karaikal. Majority of people here are followers of the Shafi Madhabs doctrine. But, in Tamil Nadu, the verdicts are based on HanafiMadhab.
Likewise, if the verdicts are given based on the doctrine wise section of Islam, this wouldnt have been considered as interfering with Personal law.
But, instead of handling this in such an intellectual way, Court has created a confusion by seeking the opinion of the Central Government.
It is ridiculous on the Courts part to seek the opinion of Central Government, when there is scope for providing Justice to the woman by sticking to Islamic Sharia.???
Based on this, the central government has also expressed its view in the Court as follows:
NDA govt tells the Supreme Court that practice of triple talaq not be regarded as essential part of the religion.. This practice cannot be justified and the gender equality and dignity of women is non-negotiable, which violates the fundamental rights as enshrined in the Constitution, and there is no compromise on basic rights. And hence the practice of triple talaq should not be permitted in India.
Also, when the opinion was sought only with respect to Triple Talaq, instead of replying specifically with respect to this, its ridiculous on the Central Governments part for recommending to abolish the Talaq system completely.
Lets point out the contradicting report with respect to one single report:
Talaq not be regarded as essential part of the religion
Talaq system shouldnt be permitted in a secular country like India.
Observe these two statements!
First statement cites that Talaq not be regarded as essential part of the religion Second statement reads the Religious laws (Talaq) shouldnt be permitted in Secular country
It is equal to the absurdity of telling Talaq is Religious belief, but not Religious belief. Can any absurdity of similar nature exist? Even if the Politicians are lacking intellect, is it not befitting the intellectual scholars of Law to present a report without contradiction?
This report is released in a manner that ridicules the Legal Knowledge of the Central Government.
The Central Governments report cites that since this nation is Secular, Talaq system based on Religion cannot be permitted.
This nation is not declared as secular after Modi came to power. Rather, it was declared while framing the Indian constitution. This rule is also amended to the Indian Constitution. Indian constitution accepts the personal law formulated for several Religions in 1937 when declaring this nation as Secular.
The Article 44 of the Indian Constitution reads
The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.
What is the meaning of this? It means that currently there is no uniform civil code and that effort should be made to formulate one. This article of the Indian constitution accepts and validates the Personal civil law. Yet, gives an opinion to take efforts to bring in Uniform Civil Code.
If the architects of Indian Constitution felt that allowing Personal law is against the Secular state of the nation, they would have abolished all personal laws via Indian Constitution.
Though, the Indian Constitution cites to take efforts to have one Uniform Civil Code, the Central Government is ignorant that this need not be mandatorily implemented. And Indian Constitution itself clarifies this.
Indian constitution is constructed under 5 headings. One of the section is DIRECTIVE PRINCIPLES OF STATE POLICY. This comprises of articles 36 to 51. These articles are just directives (suggestions). Not necessarily be adhered to mandatorily.
The article 37 cites as follows The provisions contained in this Part shall not be enforceable by any court,
Article 44; which suggests to take efforts to frame Uniform Civil Code is limitedto the provisions in which Court cannot interfere and should not interfere.
What should have been action of Central Government, if at all it possessed Legal knowledge and Knowledge of Indian Constitution? It should have protected the Indian Constitution by stating that Courts do not reserve rights to seek opinion and interfere in this regard.
Moreover, the Central Government which is carving to change the Personal law based on Religion for Muslims, is ignorant of the fact that even Non-Muslims do have provision of executing certain Personal laws.
If Talaq- Divorce is not permissible as this is a Secular nation. Hindus do have Personal civil laws. Does the Central Government have courage to eliminate them? At least, are theybrave enough to express out that they will remove this?
If the Hindus live in a Joint family, they have tax exception. This provision is not available for Muslims. Though the Muslims have high tax and Hindus have less tax, such provision is available only for Hindus.
Hindus have personal law to consider the adopted children as their own children.
Wandering in the state of Nudity is offence as per law. Yet, Since Nude priests are allowed in Hinduism and Jainism, they are wandering in the state of being nude with full police protection. Even, the Prime Minister gets blessings in person from the Naked Priests. This is possible only with Hindu Personal Law.
Are you aware of the number of Personal Laws of Hindus against Uniform civil code?
The former Law Minister VeerappaMoilysaid:
There are about 300 Personal laws. Out of this, there are 4 personal laws for Muslims, another 4 for Christians. Remaining 292 is exclusively reserved for Hindus.
There are about 292 Hindu Personal laws which is not as per Uniform Civil code. Is it befitting for a Secular Nation? Can the Central Government open its mouth regarding this?
292 Personal laws for Hindus, 4 for Muslims and 4 for Christians were exempted from Uniform Civil Code during the British rule. This is accepted by the Liberated India.
In 1772, the categoriessuch as Succession, Inheritance and caste were formulated. Moreover, Muslim Criminal Law was totally over ridden by Indian Penal Code. Later in 1937, it was emphatically stated in the condition of 2nd section of Muslim Personal Law Shariat Application Act 1937 to derive Judgment in Divorce, Alimony, Dowry (Mahr), Guardianship, Gift, Trust, Waqf, Marriage, Special property for Women and intestate succession.
Hindu Religion is a collection of several Faiths. There are Personal laws specific to these individual faiths. If people of one specific faith have certain ritual as their sacred practice, that section will follow this. If the Central Government opens the door for Courts to interfere in the name of Uniform civil code, what will be the consequence? It will obligeto bring in a uniform civil law which is specific to Brahmins or any other faith into practice. If this happens, each and every community belonging to Hinduism will enter into revolt. This is not a normal issue.
This is the very reason why British sanctioned this. The architects of Indian Constitution realized this in the past.Since, it was pertaining to just four matters of Muslims, it would have been easier to implement this against Muslims who were then accused of Pakistan partition.
Yadhavas, Jats, Patels, Nadars, Devars or Daliths will revolt if the laws of other community (caste) are imposed upon them. And, the Nation cannot bear this. Considering this, the constituent assembly had given only a directive regarding Uniform Civil Code and stood apart.
Muslims and Hindus were allowed to follow their respective personal laws based on Religion in the British rule. Due to this the Nation did not disseminate. In fact, the Greater India shaped up because of this approach. If the Mughals and British interfered in the Religious freedom, we will not be witnessing the present day India.
The integral India which is the result of British and the Mughal emperors granting Personal Law, will be forced to disseminate as a result of their desire to bring in Uniform Civil Code. Nation will witness confusion and mutiny.
Thailand, which possesses majority Buddhists have Muslim personal law. Also, Muslim personal law is in effect in Sri Lanka which is declared as Buddhist country.
Similar laws are in place in Greece, Ethiopia, Uganda and Muslim countries like Pakistan, and Bangladesh. Due to this, these countries have not disseminated.
Certain people rise an ignorant question as to why in Saudi Arabia; Hindus and Christians do not have Personal laws? Citizens of Saudi Arabia are all Muslims. People of other nation are not the citizens of this country. They are all emigrants. But, Muslims and Christians are citizens of India just like Hindus. If this difference is understood, such questions wont arise.
Further, it is evident from the Central Governments response to the court that Central Government doesnt have slightest knowledge with respect to Talaq.
This practice cannot be justified and the gender equality and dignity of women is non-negotiable, which violates the fundamental rights as enshrined in the Constitution, and there is no compromise on basic rights.
I.e. Talaq should be approached in terms of gender bias and gender equality.
The Central Government is ignorant of the fact that in Islam, women also have the equivalent right to divorce it exists for Man. This will be elaborated in detail later.
In Hinduism, women do not possess the law of Inheritance. Is this not gender bias? Will the Central Government modify the Hindu law?
Man is responsible for his expenditures, Woman is responsible for her expenditures. And henceforth, will the central Government approach the ruling of Mans responsibility for womans expenditure based on gender equality? There are thousands of similar laws. While the Central Government is incapable of talking gender equality in those laws, it portrays the wicked intentions of the Central Government citing gender equality as a reason with respect to Talaq. In spite of the fact that equal right to divorce is given to women.
If Non-Muslims understand the benefit of Mans divorce referred to as Talaq and Womans divorce referred to as Khula it does for both the genders, they will want to have Talaq and Khula as Uniform civil code for all.
The following verses of Holy Quran cites the rights of Husbands to divorce their wives. And, these verses describe the rules and regulations in this regard.
2:227, 2:228, 2:229, 2:230, 2:231, 2:232, 2:236, 2:241, 4:20, 4:34, 65:1, 33:49
Some people consider that the rights given to Husbands to divorce their wives are a form of serious injustice to wives. This is incorrect.
If Husbands are not given rights when he dislikes his wife, or if the rules and regulations to divorce her is stringent, it does more harmto woman than benefitting her. Due to this, we witness the following ill effects in the society.
If one encounters the situation where divorce becomes impossible, or if getting divorce is possible only with greater difficulty, arranges concubine and doesnt live with his wife anymore. Tortures his wife, and doesnt take care of her.
Else, in order to get the divorce easily, will falsely accuse her of illicit character.
Else, will burn her alive and falsely claim it to be suicide or accident and escape from the Court of Law.
Though, divorce is allowed in the religions other than Islam, because the rules and regulations are stringent with respect to divorce, and because divorce can only be obtained via Court; we witness such happenings in the society.
Hence, with the due consideration to protect the vigor, possession, honor, dignity and life, Islam provides the right to divorce and simplified its execution.
Though, the method to divorce is simplified, Islam doesnt insist to divorce in a hurry. Rather, it has articulated the following procedure to do so.
Firstly, all efforts should be taken to persuade and correct the wife with good advices.
If this doesnt help, she should be temporarily exiled from Bed.
If this doesnt help, beat her lightly to correct her.
It is to be noted that Islam allows beating wife lightly to prevent one from going to the extent of divorce.
If they dont live in harmony even after all these measures, Holy Quran 4:35 insists to solve this with the help of mediators from both the families.
If they dont become coherent even after using the 4 measures mentioned above, continuing to live together becomes meaningless. In this state, with no other option, Islam allows divorce.
Divorce will happen by telling out Talaq to wife in person, in the presence of two witness.
Since, Husbands are bound to give the guardianship amount to wife, this should be issued in the presence of the Jamaath (Community) leaders.
There is no other ritual.
Three options are given to each Husbands when he intends to divorce.
The marriage relationship will not cease immediately by divorcing her once. After divorcing her for the first time, he can join with her before three menstrual periods. If she is pregnant, he has time to re-join until she gives birth to child
(Refer Holy Quran 65:4).
If the Husband fails to join with her within this stipulated time frame, the marriage relationship between them will cease. But, if they wanted to live together after this, they are free to re-marry again. There is no restriction for this.
First Talaq After re-joining, if it becomes impossible to live together again, they are bound to follow all the measures mentioned above and then divorce if needed as the last resort.
Likewise, can re-join before the stipulated time frame as mentioned above. If they wished to re-join after the time frame expires, they are allowed to re-join after marrying again.
Likewise, if they dont become coherent even after continuing to live-together for the third time, can divorce herfor the third time. This is the last chance.
After divorcing her for the third time, the door to re-join and live together with the wife is sealed.
However, if the divorcee marries another person and divorces him as per procedure, she is allowed to marry her former Husband if she wishes.
It can be inferred from the following verse
(Revocable) Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.
Quran 2:229
Certain Muslims, ignorant of this Islamic law, use three Talaqs at once or use Muttalaq to divorce their wives. They also think that they cannot re-join and live together later.
This is totally incorrect. If they tell three Talaqs at once or 300 Talaqs at once, Talaq has happened only once. They can re-join and live together within the stipulated time or remarry incase the stipulated time expires as it is applicable after oneTalaq.
Because, Ibn Abbas (Rali) narrates that using three Talaqs at once was considered as only one Talaq during the lifetime of Prophet Muhammad (SAW).
Reference: Sahih Muslim 2932, 2933, 2934
It is a wrong practice which happened after the lifetime of Prophet Muhammad (SAW) to consider three Talaqs used at once as Three Talaqs.
After divorce, the Husband should not leave their wives unattended. He is bound to give her huge sum to secure her future. And, this obligation rests on the Jamaath (community) leaders.
This is the law provided to Husbands with respect to divorce. Islam gives similar rights to Wives as it is given to Husbands.
The wife of Thabit bin Qais came to the Prophet (ﷺ) and said, O Allahs Messenger (ﷺ)! I do not blame Thabit for defects in his character or his religion, but I, being a Muslim, dislike to behave in un-Islamic manner (if I remain with him). On that Allahs Messenger (ﷺ) said (to her), Will you give back the garden which your husband has given you (as Mahr)? She said, Yes. Then the Prophet (ﷺ) said to Thabit, O Thabit! Accept your garden, and divorce her once.
Narrated by: IbnAbbas(Rali): Sahih al-Bukhari 5273
One can understand the rights and the processfor women to divorce their Husbands which existed during the lifetime of prophet Muhammad (SAW)
It is essential for women to appeal in front of the Jamaath (Community) Leader instead of breaking the Marriage agreement themselves. Since, women get the Mahr from their Husbands publicly, and hence the condition is laid accordingly so that she returns back the Mahr publicly.
Moreover, this procedure is essential as women are bound to have more difficulty after getting divorce, and that they shouldnt take this decision in a haste. This makes provision for the Community leader to advise her. Hence, it is better for her to take this up with Jamaath (community) leader and get separated with the help of Jamaath (community) leader itself.
Such, simplest procedure for a woman to divorce her Husband cannot be found elsewhere in the world. Islam has given this right to women which is not even provided in the 20th century.
Also, there is no need to have a serious accusation for a woman to separate from her Husband. In the above mentioned Hadith, the woman did not make any accusation against her Husband. She just said that she disliked him. Prophet Muhammad (SAW) did not even ask her the reason behind this. If providing reason was mandatory, Prophet Muhammad (SAW) would have asked it upfront. He issued divorce without enquiring anything further with her.
Islam doesnt view marriage as an inseparable relation. Rather, Marriages are viewed as a life agreement.
while you have gone in unto each other and they have taken from you a solemn covenant?
Quran 4:21
the wives is similar to what is expected of them
Quran 2:228
Cites equal rights of women that equals to the rights of Husbands.
Just like how preventing rights to husbands to divorce has ill-effects, preventing wives the right to divorce has several ill-effects. And it happens.
The episode of women killing their Husbands is considerably increasing because the rules and regulations are stringent for her to divorce her Husband.
Kills the Husband by poisoning, kills him with the aid of her paramour partner. Such brutality will not be orchestrated if at all she had easier provisions to divorce her Husband and marry the person of her choice legally.
Hence, Islam has simplified the divorce law not only for the Husbands, but also for the wives. Islam has provided pretty much equal rights to wives in line with the rights provided to the Husbands. This can be seen in the following Quran verses 2:228-232.
When, such amazing divorce laws are available in Islam, we are not ready to cancel this and approach courts for several years to get divorce.
We are not ready to kill each other by losing patience to get divorce. We will not entertain paramour killings in our community.
When we have provision for recuperating our lives with no expenditure in presence of the Jamaaths, we are not ready to cough out huge money for case and lawyers. (Some divorce cases were ongoing for almost 70 years).
We are not willing to get insulted because of cross-examination over our family secrets. Hence, we wont accept the move to snatch away our rights in the name of Uniform Civil Code.
Islam is the religion of God who created us. We wont let the interference of anyone like the imprudent Judges.
