- Setting the record straight
The Indian Lok Sabha on Thursday passed the so-called triple-talaq bill, making pronouncement of triple-talaq a criminal offence, cognizable and non-bailable with imprisonment and a fine. The bill will now be presented in the Rajya Sabha. In Pakistan too, the Council of Islamic Ideology has recently announced its decision to support the pronouncement of triple-talaq as a punishable offence, and that it would soon undergo consultations with various scholars to decide the appropriate punishment for it.
The triple-divorce issue is arguably the most misunderstood issue among Muslims. Which is surprising because the divorce procedure has been laid down in detail in the Quran. In fact, the ‘teen-talaq’ thing has become one of those cult-phrases that have gained currency among even the otherwise informed folks, albeit in a different way from the masses.
A case in point is a very well-meant article entitled ‘Tripe talaq’ published in Dawn on 14 December, which instead of clarifying the issue inadvertently further muddies the waters. While author Nilofar Ahmed admirably stresses the need to educate people to refrain from the three-in-one divorce, what she presents as the correct way of divorce leaves a lot to be desired. Considering the wide readership of the publication, I feel obligated to set the record straight.
While Ahmed classifies divorce into categories invented by the jurists, I will focus only on the ‘talaqul ahsan’, which in her own words is ‘the best and most laudable’. While explaining why it’s better than the other types, she writes: “In the talaqul ahsan, or the best method, the husband pronounces the words in the presence of two witnesses, and lets the wife be for a waiting period of three months. The divorce is revocable any time before the expiry of this period, and the husband can take the woman to be his wife again through another nikah and the payment of a new mehr.” I am afraid, this contradicts the Quran, which clearly states that a man is free to reunite with his wife before the expiry of her term. There’s no question of another nikah in this case.
The second major shortcoming of Ahmed’s article is best highlighted after summarising the divorce procedure as laid down in the Quran: A man must announce his resolve to divorce his wife in the presence of two witnesses. The Arabic word (for ‘resolve’), as well as the requirement for witnesses requires a considered decision as opposed to merely an angry knee-jerk reaction to something. This must be after her monthly cycle has ended and before the couple has been intimate. If the man doesn’t decide to reunite with his wife (again informing two witnesses) before her term expires, during which time the couple should stay together, they will stand divorced. Her term is three menstrual cycles (or three months), unless it turns out that she is pregnant, in which case the term lasts till she gives birth. They are no longer man and wife – a single divorce sufficed; with no double- or triple-divorce in sight. However, they are free to get re-married to one another by mutual consent (with a new nikah and mehr), as they are both free to get married elsewhere.
However, in case the man decides to reunite with his wife during her term, they stay man and wife as before, although he has exhausted one of his two divorce rights. If on some later occasion they go through the same procedure only to reconcile again, he has now exhausted his second right too. Allah has set the limit for this sort of thing to two; so, if the man divorces his wife a third time (on another occasion), then there’s no scope of reconciliation, or even getting re-married to one another, unless she gets married to somebody else and gets divorced (but not in a pre-planned way).
Allah has set the limit for this sort of thing to two; so, if the man divorces his wife a third time (on another occasion), then there’s no scope of reconciliation
That the third talaq is final in this sense has caused many a misunderstanding (even among some scholars) regarding the ‘finality’ of the third pronouncement. Three only indicates the maximum number of divorces in one nikah in a lifetime, not something necessary to finalise one divorce. Failure to understand this has caused much confusion.
Now consider the following excerpt from Ahmed’s article: “The prescribed Quranic method of giving a divorce is to intentionally pronounce the words of divorce once…The woman should not be expelled from the house, but both should continue to live in the same house for a month. During this time, the husband can revoke the divorce if they decide to reunite. But if he is adamant in his resolve and decides to move ahead, the second pronouncement of divorce has to be made after the completion of her second monthly cycle, again in the presence of two witnesses. After this, another one-month period of waiting ensues, which is another chance to reunite… After the third monthly cycle is over, and if the husband deliberately pronounces the words a third time, in the presence of two witnesses, the divorce will become final and irrevocable.” Note how the husband is being told to needlessly exhaust his three divorce rights if he wants to finalise divorce, when one would have been quite enough according to the Quran.
This unfortunate emphasis on the number three not only eliminates any chance of the couple getting remarried (with a fresh nikah and mehr) sometime in future but has a lot to do with the persistence of the three-in-one talaq practice. It’s a slippery slope from the misconception that three divorces (albeit in three months) are needed to finalise the divorce to three divorces in one sitting (to get rid of the wife immediately, such being the momentary rage). Ironically, Ahmed’s article is likely to help the very misconception that it apparently seeks to eliminate.
My intent in writing this has been to clearly state the Quranic position as regards the correct way of divorce; and therefore, I have avoided going into the administrative measures (all well-meant) taken in the intervening centuries to handle cases where the Quranic procedure was not followed. It must be borne in mind that those were merely exercises in ijtihad, that were meant to right a wrong already committed by not heeding the Quran. While the governments and parliaments will continue grappling with those matters, the emphasis on the part of scholars needs to be on educating the Muslims about the correct procedures laid down in the Quran.