Emerging Trend of Judicial Ruling Regarding Divorce

Muslims are encountering many problems in independent India. One of them is related to Muslim Personal Law. Judicial decisions have complicated matters for the ordinary Muslims who prefer to abide by the Islamic Law. Judicial pronouncements are being taken as interference in Islamic Shariah. Most of the decisions of this nature are related to the…

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Muslims are encountering many problems in independent India. One of them is related to Muslim Personal Law. Judicial decisions have complicated matters for the ordinary Muslims who prefer to abide by the Islamic Law. Judicial pronouncements are being taken as interference in Islamic Shariah. Most of the decisions of this nature are related to the maintenance allowance and divorce. A totally wrong message is going to the masses. In a judgment pronounced by Mumbai High Court last year, which sent shockwaves throughout the Muslim community, the Court expressed the view that if before saying talaq thrice, the couple has not tried every available means to settle the problem then the said talaq is not valid at all. The Court further observed that the terms and conditions stipulated by the Muslim Personal Law were not fulfilled; hence the talaq is not valid.
The case under discussion relates to Ahmad Khan and Dilshad Begum of Baramati district in Maharashtra. Since 1989 personal relations of the couple nosedived and since then this case had been going on in various courts. In June, 1989, wife Dilshad Begum left her husband’s house. Subsequently she approached a lower court for maintenance allowance. The court according to Criminal Procedure Code settled Rs. 400/- per month as maintenance allowance, which the husband paid to Dilshad Begum regularly. In 1994, Ahmad Khan divorced Dilshad Begum by saying talaq thrice in the presence of witnesses in a mosque and also sent notice of the same to her. He also paid maintenance allowance for the period of iddat. After that he challenged the decision of the lower court in Sessions Court by telling the court that he had divorced his wife and also paid allowances according to Muslim Personal Law and in future he is not bound to pay the said allowance. Sessions Court subsequently declared the decision of the lower court as null and void. Opposing the said judgment, Dilshad Begum filed a petition in the High Court and accepted that she was divorced in 1994. Despite all these facts, Mumbai High Court delivered the above-mentioned judgment. Unfortunately this is not first such decision. In fact several other decisions like Ziauddin  Ahmad Vs Anwari Begum (1977), Rahmatullah Vs State of U.P. (1994), Shamim Ara Vs State of U.P. (2002), Shahzad Vs Anisa Bee (2006), Farida Bano Vs Kamruddin (2006) and Iqbal Bano Vs State of U.P. (2007) etc. are some other decisions of the same nature. In all these decisions the court insisted that there should be some reasonable cause for pronouncing divorce to wife and be preceded by attempts at reconciliation between husband and wife by two arbiters; if the attempts fail, talaq may be affected.
If we analyse all these decisions, it seems that they are partly result of ignorance of Islamic injunctions and partly of misuse of Shari’ah by Muslims themselves. But all the Muslims are suffering on that account. Let’s go through the Islamic injunctions pertaining to divorce. Although divorce is permitted in Islam, it is not liked by Allah Himself. Husband and wife should try to settle their differences at the maximum and divorce must be the last alternative. It has been prescribed that when personal relations between husband and wife start cracking, one mediator from husband’s side and one from wife’s side should try to bring them back on the track. If still the situation is far from satisfactory then husband should wait till his wife attains tuhr (purity). When the wife attains tuhr, husband must desist from physical relations and then he may divorce her once.
After that, during the period of iddat, he may revoke his pronouncement expressly or impliedly. He may either by words revoke divorce or by action e.g. establishing sexual relationship with his wife. If he has not done so, then after the completion of iddat, one talaq will be complete. This method is known as Ahsan (Best). If at any other time in future there develops strained relations, then he may repeat the same procedure and observe the whole exercise again. Now he has left with only one option. If unfortunately, again (third time) the same circumstances occur and the husband pronounces talaq, then the talaq is final which cannot be revoked. There is now no opportunity of ruju (reconciliation). According to Shari’ah, this is the method of divorcing one’s wife and it is known as Hasan (Good).
If we evaluate the whole exercise, we find that in this method both husband and wife have opportunities to settle their differences. There are chances that in these three months both may feel pain of separation or may realise their mistake. They may feel compulsions to be united. Even after complete talaq, if the husband and wife so desire, they may remarry and for that, halala is not compulsory. Allah has given two such opportunities in the rest of life. If after two divorces and two marriages, again such separations occur, then it is almost certain and is established that the marriage will not work for them and they should be freed from each other.
As far as triple talaq in one sitting is concerned, it can be pronounced according to Hanafi law. In this system of divorce, the husband does not take care of wife’s purity or abstains himself from sex. But the person who divorces his wife thus is considered sinful. Without going into the controversy that how and when such a system took roots, I am certain that this type of system of divorcing is creating problems for the Muslim society in Indian subcontinent. Their own life is subjected to hardships; Islamic laws become subject of joke and Shari’ah is defamed. It sends wrong message to non-Muslims, and anti-Islamic forces get opportunities to exploit Muslim women.
As far as Hadith is concerned, we find six Ahadith in respect of divorce. In three Ahadith, Prophet Muhammad (peace and blessings of Allah be with him) has declared triple talaq in one sitting as “one” but in another three Ahadith, three pronouncements have been recognised as three and final, hence, valid. Differences among Ulema are there but the problems of the Muslims are also there. Slowly but surely a consensus is emerging among Ulema and literate Muslims that if triple divorce in one sitting is recognised as “one talaq” then thousands of Muslim homes may be saved from broken.
In this connection the text of the resolution adopted in a seminar held in Ahmedabad from November 4 to 6, 1973 under the presidentship of Mufti Ateequr Rehman is very important. Many eminent scholars like Maulana Saeed Ahmad Akbarabadi, Maulana Mukhtar Ahmad Nadvi, Maulana Syed Hamid Ali, Maulana Syed Ahmad Urooj Qadri,   Maulana Abdul Rehman bin Obaidullah Rahmani, Maulana Mahfooz-ur-Rahman, Malegaon and Janab Shams Peerzada participated and dwelt upon the issue of talaq. In this seminar, some very important observations were made which are as follows:
1.  Triple talaq in one sitting, which is known as Talaq-e-Mughalliza, is not final because from the very beginning there is controversy over it.
2.  In respect of talaq, it is advisable that –
(a) If a person says  to his wife ‘Talaq, Talaq, Talaq’ but declares that he was using the word only for emphasising it, then his plea will be honoured and that talaq will not fall under Talaq-e-Mughalliza and will be treated as one talaq only.
(b) If a person says to his wife, ‘I divorce thee thrice’ but afterwards he makes a statement under oath that his intention was not to give three talaqs. ‘I was under impression that without saying talaq thrice, talaq will not materialise.’ Then also this talaq will be treated as one and will not fall under the ambit of Talaq-e-Mughalliza.
(c) There is dire need to educate Muslims on the issue of talaq and they must be told that divorcing one’s wife by triple talaq is an innovation/ biddat and is cruel to women. Muslims should desist from divorcing their wives and where divorce is a must, it should be given in the form of “one talaq” only at a time when the husband may not have physical relations with her.
All Muslims must follow above-mentioned solution of complicated issue of divorce because it has consent given by eight eminent scholars representing every school of thought. It will minimise some of the problems related to divorce.
In respect of India, if we evaluate judicial decisions on the subject, we find difference in the decisions in pre-independent India and post-independent India. In pre-independence days, the courts have honoured triple talaq in one sitting but after independence especially in post-1980 era, the High Courts and Supreme Court have taken an altogether different view. After 1980s, many court decisions in respect of divorce, maintenance or having more than one wife reflect a particular approach and in some cases they have gone overboard to criticise Muslim Personal Law. When controversies start due to such decisions, no one bothers to consider the school of husband and wife and starts giving arguments according to one’s own belief. All these acts without concrete knowledge create a peculiar situation and whole Muslim society finds itself engulfed in an extraordinary situation. Side by side the administration and non-Muslims also become confused. It has been observed that when media covers such issues, Muslims themselves including Ulema never try to sort it out seriously. At such times, when Ulema of other school express their opinion, a wrong message goes to the non-Muslims that Shari’ah laws are framed by Muslims themselves and whenever they want, they may change or alter it.
This situation is alarming because very established Ulema of yesteryears – leave alone present Ulema – had no such right to change or alter Shari’ah laws. It must be made clear that Ulema can give their opinions on issues which have not been discussed directly in the Holy Qur’an or Sunnah. There is another aspect that their opinion should not confront with any other law of the Holy Qur’an or Sunnah.
As far as decision of various High Courts and Supreme Court are concerned, the Hon’ble Courts have overlooked the fact that while the Holy Qur’an stipulates laws, at the same time, it also places before us certain moral recommendations. Now, if you give same status to legal and moral points, then the matter will become very complicated. Mumbai High Court has done the same mistake. The Hon’ble Court refused to honour divorce given in 1994 and said that they are still husband and wife whereas according to Shari’ah Laws, the divorce was complete and enforced in 1994 itself.
As far as Indian Muslims are concerned, they still believe that triple talaq is a perfect way to divorce. This is due to ignorance. They do not know the correct procedure of divorce at all. Muslim masses cannot be absolved of their responsibilities of acquiring knowledge about Shari’ah. At the same time, it is the duty of our Ulema to tell them about Shari’ah. So that they may not commit sin by their  anti- Shari’ah deeds. The time has come when Muslims should ponder over issues and controversies faced by the community and try to solve them.
All India Muslim Personal Law Board, which is apex body for such issues, discusses and gives opinions on such controversies. But their follow-up is somewhat slow. It has total 201 members who represent each and every school of thought. Muslim Personal Law Board makes its opinion public only after discussing the issue seriously. In most of the cases, their decisions come very late due to making it by consensus. Further, there is no effort to enforce or implement the decision taken. That results in implementation becoming late and in the meantime some fresh issues crop up. For example, the model Nikahnama that has been drafted in ten or twelve years and which has been prescribed and popularised two years ago, is not being used by large numbers of Qazis.
If Muslims use Model Nikahnama then many of the problems faced by Muslim couples may be solved even at the time of the Nikah itself. Muslim Personal Law Board should seriously consider the whole scenario and decisions must be taken immediately. There should be some mechanism and “will” to implement them in the society. Time is also demanding that young blood with aptitude, inclination, determination must be included in the Board for making it sustainable with the changing time.
It can be easily said on the whole observation that Shari’ah of Muslims is not safe in independent India. Attacks have been mounting from several quarters on Islam and Muslims. Attackers are our own and others. To thwart these attacks, Muslims should strictly observe Shari’ah and desist from introducing new customs and traditions in their society. They must clearly desist from selfish religious leaders and try to consult and obey Islamic scholars of clean image. They have responsibility to study the Qur’an and Hadith and they should go through and search for the solutions. It is very necessary that differences based on different schools should be contained. Without justifications declaring anybody kafir or momin is not right. That should be left to Allah to decide. In their family life, they should strictly follow Qur’anic injunctions that will minimise family disputes. If a Muslim has some sort of problem with a momin, he should go by the dictates of Prophet Muhammad (peace and blessings of Allah be with him) that, “a Momin remains soft for a Momin.” If Indian Muslim society follows all the above stated points, I hope the society will climb the ladder of prosperity and progress.