There are two provisions of Muslim personal law which are being debated heatedly and are made controversial and are being used to pave the way for the introduction of uniform civil code in India: One among them is the issue of triple talaq and the second being the polygamy. Particularly, the issue of triple talaq now-a-days is the talk of the town. The Supreme Court of India after accepting the petition of Ishrat Jahan on triple talaq, has summoned the AIMPLB and the government of India to clarify their stands on triple talaq, so as to legislate in this regard. The government of India has also shown the green signal to ban both triple talaq and polygamy by filing an affidavit in the Supreme Court of India. Not just government and judiciary, but some so-called progressive Muslims are too seeking a ban on triple talaq.
The opponent of triple talaq put forward variety of arguments in this regard. Some say that triple talaq is not justified in Islam and that it was first promulgated in the period of Hazrath Umar, the second caliph of Muslims. Some argue that it is against the gender equality. Some suggest that it is causing an increase in the divorce rate; and sometimes it is suggested that when it has been banned in some Muslim countries than why it shouldn’t be banned in India? In the following pages, we will try to analyze these points.
Legality of Triple Talaq
Basically Islam advocates strong marital relationship and discourages divorce. It is because of this that Islam has regarded the divorce as the most hated of all the lawful acts before Allah (Sunan Abu Dawud: 2178; Sunan Ibn Majah: 2018). Similarly, the triple talaq too has been forbidden but upon uttering them the talaq will take place. Triple talaq has not been mentioned in the Qur’an directly anywhere, but a number of prominent scholars of Islam have argued that there is a mention of triple talaq in the ayah 229 of Surah Baqara according to its context ‘Iqtiza al-Nass’.
As far as the hadiths are concerned, there exist hundreds of hadith in all major hadith books including the six accurate books of hadith ‘sihah sitta’ about the legality of triple talaq. We are avoiding the details in this regard fearing the length of this treatise. 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 about the validity of triple talaq.
The only exception in this regard is of Allama Ibn Taimiah and his disciple Ibn Qayim, who regarded the triple talaq as one. The biographers of Ibn Taimiah have said that he adopted this opinion in order to contain the bad custom of halala which was prevalent widely in his times. But later even the scholars of Hanbali School of jurisprudence, which was followed by Ibn Taimiyah, themselves rejected his views about tripe talaq by regarding his arguments as weak. Recently a major research work was accomplished in Saudi Arabia on this subject, in which a board to prominent scholars of Saudi Arabia extensively gone through the arguments regarding triple talaq. After a long and extensive discussion they have opined in favor of the legality of the triple talaq based on the evidences. A complete report on this has been published in the ‘Majallahtul Buhus Al Islamia’ magazine (1393 AH). It should be borne in mind here that Saudi Arabia is considered a major center for the propagation of views and thoughts of Ibn Taimiya in the contemporary world. (Refer for detail, “Validity of Triple Talaq”, by Allama Mohammed Shihabuddin Nadvi)
Here, without going into the detailed discussion on Qur’anic ayahs and hadiths, we just wanted to show that the legality of triple talaq is proved conclusively by all the four sources of Islamic shariah i.e., Qur’an, hadith, consensus ‘Ijma’ and analogy ‘Qiyas’. The majority of scholars of Islam held this view only since the period of Prophet Mohammed PBUH till present day. This is not the present day invention as it has been publicized by the media today. After this outline, we will discuss here some more points raised by media today.
Is triple talaq causing increase in divorce rate?
One of the major arguments of opponents of triple talaq is that due to the simplicity of divorce (triple talaq) it is causing enormous surge in the rate of divorces in Muslims. Therefore women’s rights are being violated. But the statistics show that this is a myth. The 2011 census data of India clearly show that divorce is more common in other communities of India than Muslims. See the divorce statistics in different communities of India according the 2011 census in the table 1 and 2.
Table 2 shows that the ratio of divorced women is higher in Buddhists and Christians than in Muslims. Whereas table 1 shows that the ratio of divorced men is higher in Sikh, Buddhist, Christian, and Jain communities than in Muslim community. Even the ratio of Muslim divorced men is far less than the national average. What is noteworthy here is that this less ratio of divorce in Muslims is despite the simplicity of the process of divorce prevalent in their society, and the high rate of divorce in the other communities despite all the legal hurdles in the way of obtaining divorce. It clearly shows how misleading is the propaganda of government and the media which are trying to portray that due to the legality of triple talaq alone the divorce rate is higher in Muslims. Another important point here is that there exist no data on the rate of divorce in Muslims through which we can come to know how the divorces are happening in Muslim i.e., whether thorough triple talaq, talaq ahsan, talaq hasan, mutually agreed talaq or khula (a divorce initiated by women). Hence the attitude of targeting triple talaq alone in this regard by government and media is like a leap in the dark which is not only unacceptable completely but also deplorable.
Abundance of divorce in Western countries
Divorce rate in Muslims is not only low in India but it is also low globally compared to its rate in developed Western and other countries. See the rate of divorce rate in developed Western countries and the Muslim countries in table 3 and 4 respectively.
It should be borne in mind that the ratio of divorce presented above with regard to India represent ratio of divorce per thousand while that of European and Muslim countries represent ratio of divorces per hundred (%) of marriages. Now one can see how high is the ratio of divorce in Western societies, and the grave threat posed to the institution of marriage there because of high rate of divorce. Compared to this, the situation in some Arab countries is definitely worrisome but still it is not as bad as that of Western countries. Nevertheless, collectively the ratio of divorce in Islamic countries is much lower than the Western countries. Therefore if in any society only the divorce rate were to be made criterion of the violation of feminist rights, then nationally non-Muslim communities and internationally non-Muslim nations seem to be involved in this offense. Then what is the motto behind this hue and cry against the Muslim Personal Law in this regard. Taking on developed countries, has the time not ripe yet to declare the consensual adult relationships as a punishable crime which has been regarded as a primary cause for high rate of divorce in Western societies. But now the fear is that some sort of reformer may turn up who may write off the institution of marriage considering it as a dysfunctional system.
Increasing rate of divorce in India
As said earlier, the above mentioned divorce rate in India is based on the census data of 2011, but some latest surveys conducted recently show that the rate of divorce is climbing high in recent years in India dangerously. According to those surveys, several Indian metropolitan cities have witnessed an increase ranging between 300 to 500 percent in the rate of divorce in the past few years. For example in Hyderabad, each month 1000 new divorce cases are being filed. It witnessed an increase of 60 in divorce rate in the last year alone. In 2014, 11667 divorce petitions were filed in Mumbai, whereas only 5245 petitions were filed in 2010. Hence there is an increase of more than 200 percent. 8346 divorce petitions were filed in Kolkata in 2014, which is 350 percent higher compared to 2003 figures. Kerala is currently witnessing highest increase in divorce rate in India. Each hour an average of 5 divorce petitions (130 each day, 3900 each month) are being filed here. In Bangalore, 3 more family courts were opened in 2013, to cater to demand, the total number increasing to six. There are 8,600 cases pending in the courts and 500 new cases are added every year. According to these surveys, financial independence of women and sexual waywardness etc. are to be blamed for the rapid surge in the divorce rate in India. If this trend of increase in divorces was not curbed effectively, then India too might be found standing alongside the West in a few decades from now in the divorce rate. Isn’t it a high time that government ban the consensual adult relationships and the websites which invite towards it in order to control the divorce rate which is eating up the Indian society from inside like termites?
Furthermore, immense hardships and the long time needed to obtain divorce in these family courts is also a cause of concern. According to social analysts it has direct psychological impact on the parties. It takes at least six months to one year to grant divorce if the application is mutual from both the parties. It takes 4-5 years in case of diverse opinion between partners. There are also cases in these courts which are lasting for past 10 to 15 years, and the parties didn’t find relief until now. According to a report by Indian Express (7 Oct, 2016), these difficulties are leading to unfortunate acts like suicides of divorcees. Some also lose their jobs because of spending more time on attending court cases. All troubles including financial and social issues begin once the divorce application is filed. Sometimes the matter leads to the unfortunate event like murder. There are cases in which the female partners extort huge amounts from the men in order to mutually agree on divorce. It is a common practice in Western countries where the courts award up to half the property of the male to the female as a settlement of divorce. So, women have made the wedding and divorce a tool of trade in the West now-a-days.
Superiority of divorce laws in Islam
The statistics of divorce in India and in other countries presented above lead us to draw a number of conclusions effortlessly:
1. First, in the case of failure of marriage, divorce is a basic necessity of a human being. Hence divorce is found in all the societies of the world. Islam has granted this right to man as well as women 14 centuries ago. This right was recognized for the first time in the Christian world in 1869 AD, and in Hindu society in 1956.
2- Secondly, the simplicity in divorce process offered by Islam is also the need of the society, i.e., when the spouses cannot get on in any way, it is in the interest of them, their families and the entire society that as soon as possible a separation must be made between them. Otherwise it will have adverse effects on the whole society.
3.The divorce has become a selling product in the Western society today. On the contrary, in India it is generally considered a curse. But the concept of divorce forwarded by Islam negates both these extremes. Instead, it is considered a relief to both the parties in Islam. Similarly, the methodology of divorce prescribed by Islam leaves no room to become a selling product.
Divorce and gender equality
Gender equality is another deceptive slogan raised in this regard, i.e., giving the rights of divorce to only males is against the gender equality. But this point of view is totally wrong. Islam didn’t treat the woman with gender inequality. But as it has made the consent of women necessary for her marriage, in a similar fashion, it has given her right to part her way with her marital partner, which is called as Khula. But she cannot use this right directly, instead she can use it through a judge qazi. Islam did this keeping in mind the unique emotional, psychological and mental capacity of women. There should be considered as an added aspect of provision of protection along with bestowing her the right to divorce. If women were not provided with this type of protection along with rights, it would have caused more damages to women than gain benefits to her.
The statistics available with regard to the occurrences of divorce in various countries also support the wisdom behind this Islamic legislation. Social analysts believe that divorce rate will increase overwhelmingly if women have a choice to divorce. The Quent, a social website, expressed the same opinion in its social survey about India. The available statistics from UK and US in this regard also favour the same point of view. The British daily ‘Telegraph’ and USA’s ‘The New York Times’ have reported that majority of divorce cases in UK and US are filed by women. For example, 70 percent of divorce petitions in UK are filed by women, while in US the percentage of divorce cases filed by women is 80. Obviously, when divorce rate is such high in Europe and UK despite the acquisition of divorce through courts in which a lot of time and money is spent, then how terrible will be the figures of divorce if the women have been awarded the direct right to divorce.
In addition to khula, Islam has also awarded women the right to divorce by delegation talaqe tafweez and the conditional divorce al talaqe mashroot which the women can use it at the time of marriage or later if she fears possible violation of her rights in the form of a contract.
In short, the prescribed system of divorce in Islam is very moderate, realistic and based on true justice. Hence raising the slogan of gender equality ignoring the natural gender principles and social statistics will prove to be detrimental not only to women but also to the family system and the whole society, which is being observed evidently in the Western society today.
The instance of Muslim countries
Another argument which is forwarded to justify the interference in Muslim Personal Law is the instance of Muslim countries, i.e., when these countries have amended their Personal Laws in accordance with the modern laws then why it cannot be done in India? The first thing in this regard is that Qur’an and hadith are the only sources for Muslims worthy of following. No Muslim country is worthy of following if it violates these two sources of Islamic jurisprudence. Even the Indian courts don’t consider any of the legislations of Muslim countries applicable with regard to the Muslims in India, then how could be the instance of personal laws of Muslim countries be applicable to them.
In fact, most Muslim countries, which are politically, economically and militarily under the influence of the West, there the West uses both the instruments of persuasion and intimidation to compel them to enact Western style family laws and laws pertaining to human rights. These countries without deeply analyzing the benefits and utilities of Islamic laws compelled to accept them against their wishes.
The last and important thing in this regard is that as it is evident from the above statistics about the ratio of divorce in various countries that the ratio of divorce in India is very less compared to other Western countries, and in India too the ratio of divorce in Muslim community is less than other communities, in this situation trying to introduce reforms in Muslim Personal Law in India based on European family laws where the family system has completely collapsed and has reached the extreme bottom will prove to be detrimental to the whole society.
