In its much awaited verdict on the issue of triple talaq ‘instant divorce’, the 5-judge Constitution Bench of the Supreme Court of India has annulled the practice of triple talaq. It also instructed the government of India to frame a new law in this regard within six months. The Supreme Court bench struck the triple talaq down by 3:2 majority.

There is no doubt that triple talaq or instant divorce is a forbidden and sinful act in Islam. But a thorough study of Islamic sources reveals it clearly that Islam has kept the doors of triple talaq open only to avoid emergency and disastrous situations. Yet, if it is being misused in the Muslim society, there are several ways to reduce or end this practice completely. One such way is the Supreme Court’s direction itself to the All India Muslim Personal Board AIMPLB in its last hearing on this case in which it instructed the AIMPLB to issue an advisory to ‘Qazis’ to tell bridegrooms that they will not resort to triple talaq to annul their marriage. The second approach could be as it was suggested by some that those persons should be socially boycotted who resort to triple talaq without any valid reason. Hazrat Umar (RA) used to whip lashes to discourage triple talaq in one sitting. This tradition could have also been prevented through other ways such as legislations (for example, punishment or heavy fine or both), whose examples exist in Islamic law itself. Instead of resorting to these, the court annulled the triple talaq itself. Therefore, this decree of the Supreme Court is a clear interfering in the Muslim Personal Law on the one hand, and on the other, it necessitates obligating Muslims to adhere to a prohibited act ‘haram’. Therefore, we believe that though the aim of the Supreme Court to prevent triple talaq is appreciable, nevertheless, the method to achieve it is inappropriate and un-Islamic.

An Overview of the Supreme Court’s decision
A thorough study of the judgment of the 5-judge Constitution bench of the Supreme Court of India shows that it is a split and contradictory verdict. There judges (Justice Kurian Joseph, Justice Nariman and Justice Lalith) gave the verdict in favor of dissolution of triple talaq, while the two judges (CJI J.S. Khehar and Justice Abdul Nazeer) opposed it. On the other hand, three out of five judges reiterated that the followers of each religion in India have the right to follow their own personal laws and the government and judiciary do not have right to interfere in them.

The entire verdict of the Supreme Court runs in 396 pages. In his 272 page judgment, CJI Khehar said that personal laws come under article 25 and 44 of the Constitution, and are part of the freedom of religion, which courts are bond to protect (P. 265). He also noticed that courts are not supposed to find fault with the provisions of personal laws. He further said that personal laws are based on beliefs, not logic and that faith constitutes the religious consciousness of the followers. Upto this Justice Khehar was right to say, but he has put himself into contradiction by giving the government an invitation to legislate in this regard, which is a clear contradiction on his part. Justice Abdul Nazeer endorsed this verdict.

Justice R. Nariman in his 96 page judgment held that since the triple talaq ends the efforts of reconciliation as described in the Qur’an, it cannot be protected. He further said that the triple talaq contradicts the fundamental rights given under article 14 of the constitution (P. 354). He also asserted that triple talaq is not the integral part of Islamic Shariah. Justice Lalit endorsed his views.

Justice Kurian in his 26 page verdict endorsed justice Khehar’s opinion on freedom of religion, but he refused to accept triple talaq as an essential part of Muslim Personal Law. He argued that the Holy Qur’an nowhere endorses irrevocable instant talaq. He further observed that “what is sinful in theology must be held bad in law as well.” According to him, the freedom of religion provided under article 25 is subject to non-conflict with right of equality and other fundamental rights. In the following, we will try to answer some of the points raised by these respected judges.

Marriage is a Social Contract in Islam
Marriage is a social contract between man and woman in Islam. Hence men and women have the equal right to draft and set the terms and conditions with their own consent in this contract. They can accept or reject any condition (including triple talaq) with mutual consent. No third party is authorized to intervene in it. If this Islamic spirit of marriage is properly implemented, then the whole dispute of triple talaq may be put to an end here only. Hence the Supreme Court’s verdict in this regard is not only an intervention in the Islamic Shariah but it is also against the spirit of Islamic concept of marriage.

Is divorce a tradition or stipulated law mansoos hukm?
Some judges of the Supreme Court stressed that the divorce is not proven by the Qur’an and Hadith, instead it is a tradition which was invented by the second caliph of Islam Hazrath Umar (RA), who through one of his administrative decrees termed triple talaq three divorces instead of counting it as one. A lot has been written so far to prove that the triple talaq is a stipulated law and not the invention of any person. Nevertheless a brief account is given here in order to have clear understanding of the subject.

In the Holy Quran, only talaq ahsan has been mentioned (Baqarah: 229) which is the best way of giving divorce. In the same ayah of Sura Baqarah, it has been emphasized that no one should transgress the limits set by Allah in this regard else he will be regarded as a wrongdoer. Therefore, great scholars of Islam have derived from this through ‘iqtiza al nass’ that it means giving triple talaq. Or else nobody would be regarded as a wrongdoer despite committing it.

As far as the hadiths are concerned, dozens of hadiths have been narrated in the books of hadith including ‘Sihah Sitta’ (six most prominent hadith books) which validate the triple talaq in one sitting, and that too during the period of the Holy Prophet (ﷺ).

It is narrated in Sahih al-Bukhaari that one of the companions of the Prophet (ﷺ) Uwaimir Al-Ajlani accused his wife of adultery. The
Prophet (ﷺ) ordered them to curse each other according to the Qur’anic judgment. When the couple finished this process, Uwaimir stood and divorced his wife thrice before the Prophet (ﷺ) could say anything to him. (Bukhari: 5259). In another hadith, Bukhari narrates from Aisha: “A man divorced his wife thrice, then she married another man who also divorced her. The Prophet (ﷺ) was asked if she could legally marry the first husband (or not). The Prophet (ﷺ) replied, “No, she cannot marry the first husband unless the second husband consummates his marriage with her, just as the first husband had done.” (Bukhari: 5261) The same incident happened with Rifa’a Al-Qurazi. She asked the Prophet (ﷺ) to marry his first husband. The Prophet (ﷺ) ordered her the same thing. (Bukhari: 5260) Imam Bukhari narrated all these three hadiths in the chapter of Justification of triple talaq, which shows that he owned this view.

Ibn Majah narrates from Fatima bint Qais that her husband divorced her thrice while going to Yemen. Hence Prophet (ﷺ) implemented it. (Ibn Majah: 2024) Nasa’i narrates from Mahmud bin Labid that: ‘The Messenger of Allah was told about a man who had divorced his wife with three simultaneous divorces. He stood up angrily and said: Is the Book of Allah being toyed with while I am still among you? Then a man stood up and said: ‘O Messenger of Allah, shall I kill him?'” (Sunah Al Nasa’i: 3401) This hadith proves that all the three divorces had occurred. Else if only one talaq would have occurred then there was no reason for the anger and wrath of Prophet (ﷺ) in this manner. Another hadith in this regard is the hadith of Rukana. Rukana divorced his wife ‘Talaq Al Batta’. The Prophet (ﷺ) took oath from Rukana and asked him about his intention. Rukana replied that his intention was of one talaq. Hence the Prophet (ﷺ) returned his wife to him. (Abu Dawood and Ibn Majah) It is clear here also that if triple talaq would not have valid then the Prophet (ﷺ) would not have asked him in this way and did not have taken oath. And he would have told outwardly that only one talaq have occurred, nothing to worry.

See all these events of triple talaq occurred in the period of Prophet Mohammed (ﷺ) and in the presence of himself. His detailed decrees are also found on these occurrences and he had enforced triple talaq in all these instances. After the Prophet (ﷺ), his companions too followed him in this regard. Some of the examples are given here. A person came to Ibn Abbas (RA) and told him “I have divorced my wife by saying I divorce you a hundred times. What do you think?” Ibn Abbas (RA) said: “She was divorced from you by three pronouncements, and by the ninety-seven, you have mocked the ayah of Allah.” (Mu’atta Malik: 2021) A person came to Abdullah bin Masud and said ‘I have divorced my wife by saying I divorce you eight times. (What is your opinion?)” Ibn Masud asked him, “What have people told you?” He replied, “I have been told that I have to part absolutely from her.”. Ibn Masud replied, “They have spoken the truth.” (Mu’atta Malik: 2022) This hadith proves that triple talaq in one sitting used to occur in the period of Prophet’s companions. It was a norm of the time. There was no difference of opinion between the companions and companion’s companions on the subject.

Dozens of more sahih hadiths have been narrated in the hadith books, which provide the proof of validity of triple talaq. These are being avoided here from the fear of lengthiness. Some people regard the practice of triple talaq as an administrative order of the second caliph of Islam Hazrath Umar (RA). They put the following hadith in their argumentation: Ibn Ta’oos narrates that Abu Sahba’ said to Ibn ‘Abbas: Do you know that three (divorces) were treated as one during the lifetime of Prophet (PBUH), and that of Abu Bakr, and during three (years) of the caliphate of Umar? Ibn Abbas said: “Yes.” (Muslim: 1472; Abu Dawood: 2200; Nasa’I, Baihaqi) It is apparent that this hadith is describing a totally different view regarding the validity of triple talaq which is contradicting with the previous narrations with regard to the incidences of triple talaq in the period of Prophet (ﷺ) and his companions. An in-depth study of the above hadith reveals that the same hadith have been narrated by the same narrator (Ibn Ta’oos) in another place in Abu Dawood and Baihaqi with some additional words that this ruling is with regard to that married woman who has not been consummated yet. (Abu Dawood: 2199) Hence it is most probable that this ruling which is attributed to Hazrath Umar is related to that married woman who has not been consummated yet. Otherwise it will be completely against the logic to reject narrations of so many companions of Prophet (ﷺ) with a single narration of companion’s companion.

The majority of Muhaddiseen, scholars of hadith, including a number of authors of ‘Sihah Sitta’ were of the opinion that triple talaq is effective. Very rarely all the jurists fuqaha agree unanimously on any issue, but all the jurists of Islam including the four major Imams Imam Abu Hanifa, Imam Shafaie, Imam Malik, Imam Ahmed are unanimous on the validity of triple talaq. Hence there exists a consensus among the scholars of Islam right from the period of companions and companions’ companions with regard to the validity of triple talaq.

Allama Ibn Taymiyyah and Allama Ibn Qayyim who regard triple talaq as one, they themselves have admitted that regarding triple talaq as three is the opinion of majority of Prophet’s companions, companion’s companions and all the jurists: “This is the opinion of Malik, Abu Hanifa, Ahmed and Shafaie which has been narrated from majority of companions and companion’s companions.” (Fatawa Ibn Taimiyyah, 8/33, Zaadul Ma’ad, 5/247). Hence terming it as just an administrative decree of Hazrath Umar is a slander against one of the greatest companions like Umar. (Teen Talaq ka Saboot, Allama Mohammed Shihabuddin Nadvi, Furqania Academy Waqf, Bangalore)

Wisdom of Legality of Triple Talaq
There is no doubt that triple talaq has been regarded as sinful and forbidden act in Islam. Despite this, Islam has held it valid legally too. Not only triple talaq, but the divorce itself (talaq ahsan and talaq hasan) has also been regarded as the most hated of all the lawful acts before Allah (Sunan Abu Dawud: 2178; Sunan Ibn Majah: 2018). Despite that isn’t divorce a social necessity and a natural right of humans? But on many occasions it may be regarded as merciful too. Hence triple talaq has also been justified in some extreme situations in the same way as the divorce itself was legalized.

Some people may differ, but the tiple talaq or instant divorce too seems to be inevitable in some unavoidable circumstances. Especially in countries like India, where crimes against women are committed more than any other country of the world and where women are killed in order to get rid of marital relationships. Triple talaq or instant divorce could also be an effective step towards prevention of such emergency situations, through which a lot of human lives can be saved. One such emergency incident could be found in hadiths too. This is the above mentioned narration of Uwaimir Al-Ajlani himself narrated by Bukahari that Uwaimir Al-Ajlani accused his wife of adultery. He came to the Prophet (ﷺ) and said “O Allah’s Messenger (ﷺ)! If a man finds with his wife another man, should he kill him, whereupon you would kill him (in Qisas) or otherwise, what should he do?” The Prophet (ﷺ) ordered them to curse each other. When the couple completed this process, Uwaimir stood and divorced his wife thrice before the Prophet (ﷺ) could say anything to him. (Bukhari: 5259) The incident mentioned in this hadith contains answers to all the questions that arise in our minds regarding the legality of triple talaq.

One of the principles of Islamic jurisprudence is picking ‘lesser of two evils’ or akhaffuz zararain, which means choosing a thing of lesser harm from among two prohibited things in emergency situations. Hence, keeping the door of triple talaq open despite its prohibition seems to be derived from this principle.

Sometimes divorce seems to be inevitable ‘wajib’. According to the jurists, the divorce becomes inevitable if the mediators mediating in the dispute between husband and wife opine that there is no good in holding them together, rather it is better to separate them as soon as possible. Or if both husband and wife want to separate with mutual consent, and any sort of financial, physical or other sort of risk looms on them in keeping them together. In all these cases, instant divorce becomes inevitable despite being forbidden and haram.

In this way, no law or legislation in Islam seems to be extra or unnecessary. Instead all of its laws provide solution to all kinds of necessities and evils prevalent in human society.