‘Supreme Court has already declared triple talaq invalid’: Legal expert Faizan Mustafa

On May 11, the Supreme Court is set to decide whether triple talaq is unconstitutional. Should it indeed declare the practice unconstitutional, as is widely expected, what would be the implications? What does unconstitutional mean? Will the system of halala, or intervening marriage, stand annulled? And, above all, will it uplift Muslim women economically and socially?

Scroll.in put these questions to Dr Faizan Mustafa, vice chancellor of Nalsar University of Law, Hyderabad. He explains all you would want to know about Muslim Personal Law, the forms of divorce in Islamic law, and the implications of the Supreme Court declaring triple talaq unconstitutional. Excerpts from the interview:

The Supreme Court has been petitioned to declare triple talaq unconstitutional. What does the word “unconstitutional” mean?
The Indian Constitution has not explicitly conferred the power of judicial review, which also includes the power to declare any law unconstitutional, on the higher judiciary. This power is, basically, implied in Article 13(1) of the Constitution, which says that any law inconsistent or in contravention of the fundamental rights shall be void to the extent of inconsistency or contravention.

The Indian judiciary, as custodian of the Constitution and guarantor of the fundamental rights, has not only assumed this power under Article 13(1) but held it to be the basic structure of the Constitution. Moreover, Article 13(3), in its definition of “law”, neither mentions enacted law, that is, Act of Parliament or state legislature, nor talks of “personal laws”. Nevertheless, in several cases courts did strike down laws passed by competent legislatures. It is unfortunate that Indian courts have been indulging in the strict scrutiny of laws passed by competent legislatures and, at times, sitting on judgements even on policy matters best left to the wisdom of government.

Article 13(3) basically talks of “laws” made by the executive such as ordinances, bye-laws, orders, rules, notifications, and also refers to customs and usages. Technically speaking, personal laws and customs are different, though the Narendra Modi government has taken the stand that customs also include Muslim Personal Law.

But the Shariat Act was passed in 1937 so that Muslims are not governed by un-Islamic customs. Thus, the 1937 Act was passed to undo customary laws.

In that case, the question arises as to what constitutes Muslim Personal Law?
Muslim Personal Law in India is not entirely Islamic law. It consists of three parts – opinions of Muslim jurists (which are not codified), decisions given by British and Indian judges, most of whom were non-Muslim. Most decisions have held triple divorce as valid. Third, it includes laws that have been enacted by Parliament such as the Shariat Act, 1937; Dissolution of Muslim Marriage Act, 1939; Muslim Women (Protection of Rights on Divorce) Act, 1986; Waqf Acts, etc. Only the enacted part –Acts – contains “laws” within the meaning of Article 13.

Opinions of Abu Hanifa (who established one of the five schools of Islamic jurisprudence, Hanafi) and other jurists given over 1,000 years ago cannot be struck down as unconstitutional. Can we, for instance, ask the Supreme Court to declare (19th century legal philosopher) John Austin’s opinion on sovereignty or, for that matter, the Hindu law-giver Manu’s view as unconstitutional? This cannot and should not be done.

In the Shamim Ara case in 2002, the Supreme Court laid out the procedure for divorce under Muslim Personal Law. Again, the Delhi and Guwahati High Courts had earlier ruled that a talaq pronounced thrice in one sitting should be counted as one. Given this past, in what ways would it be a departure if the Supreme Court were to declare triple talaq unconstitutional?
The Shamim Ara judgement did not specifically say three divorces pronounced in one sitting will be counted as one. But it did quote with approval several High Court decisions which counted three divorces as one, and ruled that divorce had to be for a reasonable cause and preceded by efforts at reconciliation between the divorcing couple.

Thus, in effect, as far as the law laid down by the Supreme Court is concerned, the option of triple divorce is no more available. This is why I consider the current legal challenge to triple divorce unnecessary. At best, the Supreme Court may reiterate its decision in Shamim Ara case and explicitly declare that three pronouncements in one sitting will now be treated as just one revocable divorce.

In my opinion, the court should make the nikahnama (a contract that is drawn to spell out the rights of the marrying couple) mandatory. The nikahnama should include conditions like no triple divorce would be given or no second wife will be taken, etc.

“Juristic opinions given over 1,000 years ago cannot be struck down as unconstitutional. Can we ask the Supreme Court to declare John Austin’s opinion on sovereignty or, for that matter, the Hindu law-giver Manu’s view as unconstitutional? This cannot and should not be done.”

A term like “one revocable divorce” would be all Greek to most people. I guess the import of triple talaq cannot be understood unless people know how the three forms of talaq – Ahsan, Hasan, Talaq-ul-Biddat – differ from each other. Could you explain the differences?
The Quran lays down an elaborate procedure for divorce, which the All India Muslim Personal Law Board has now accepted. Muslim women who went to the court were demanding nothing more than reverting to the Quranic procedure of divorce, which, in their opinion, was the right way to dissolve a bad marriage.

Under the Quranic scheme now adopted by the board, divorce involves seven steps.

First, if there are differences between spouses, they will try to amicably resolve them by talking to each other in the spirit of forgiveness. Two, if they fail to resolve their differences, they may temporarily withdraw from each other’s company even though they continue to live in the same house.

Should these two measures fail, there is the third stage: the couple should try sincere reconciliation within their families or appoint an arbitrator from each side who would leave no stone unturned to bring about reconciliation between them.

However, if arbitration does not yield positive results and there are visible signs of marriage having broken down irretrievably, only one divorce (or talaq) is to be pronounced by the husband. This single pronouncement is to be compulsorily followed by the waiting period of three months (called iddat) or until the delivery of the child if the wife is pregnant.

In case the husband and wife change their mind during the waiting period and want to stay married, the divorce would stand revoked. If talaq isn’t revoked within the waiting period, divorce would become complete at the end of three months or until the end of pregnancy. This system is known as Talaq-e-Ahsan, where only one divorce is enough to dissolve marriage. Jurists have termed it as the “most approved” form of divorce.

What about Talaq-e-Hasan?
If one divorce is pronounced each month for three months – of course, preceded by above steps – it is called Talaq-e-Hasan or the “approved” form of divorce.

Finally, if three divorces are given instantly without the above mentioned seven steps, as also without any effort of reconciliation through arbitration, it is called Talaq-e-Biddat or the “most disapproved” form of divorce.

But isn’t the system of pronouncing talaq three times in one sitting an innovation? After all, it is not mentioned in the Quran. How did this innovation come about? Why do ulema and clerics insist on persisting with it?
There is no unanimity on this issue. Juristic opinion is divided. The Quran itself declares: “Divorce can be pronounced twice: then, either honourable retention or kind release should follow…Then, if he divorces her, she shall not be lawful to him unless she first takes another for a husband.”

This verse, in Arabic, uses the expression “Al-talaqu marratan”, which means that divorce may be pronounced twice. The term “marratan” implies that there should be a sufficient interval between the two pronouncements of divorce.

For instance, if I were to say “I went to your office twice but you were not there”, it cannot mean that I went to your office twice at one go. There has to be a reasonable interval between my two visits. Likewise, there has to be a gap between two divorces. Therefore, pronouncing triple divorce in one sentence – I give you talaq, talaq, talaq – or three sentences at one go – I give you talaq, I give you talaq, I give you talaq – is against the Quran.

But Imam Bukhari (a 9th century Islamic scholar) considered triple divorce as valid from the above verse. He lay emphasis on the words “if he divorces her”, which means the third time.

In fact, except for Ahl-e-Hadees, most Sunni schools consider triple divorce (in one sitting) valid. Even Hasan, son of Ali and grandson of Prophet, whom Shias follow, probably gave triple divorce to Aishah Khathmiya. After her waiting period, when Hasan sent her a gift, she said, “This is a very small gift from the beloved from whom I have been separated.” On learning this, Hasan broke into tears and said: “Had I not heard from my grandfather the prohibition about such a woman, I would have taken her back in marriage.”

But there are opinions to the contrary as well.
Some jurists are of the view that once on hearing that someone had pronounced triple talaq, the Prophet turned red. He stood up and reportedly said, “You have made mockery of the Quran in my lifetime.” This has been interpreted to mean that triple talaq is not valid.

Others argue that had divorce not become effective, the Prophet would not have become so angry. There are other instances, too, where triple divorce was enforced by the Prophet if the intention was to give three divorces. On the other hand, if talaq was pronounced thrice with the intention of just emphasising it, it was taken to mean merely one revocable divorce.

Sahih Muslim and Abu Da’ud (two of the most authentic collections of Hadith, or the traditions of the Prophet) tell us that during the Prophet’s life as well as in the reign of the first Caliph Abu Bakr and the first two years of Umar’s rule, three divorces given at a time were taken as one divorce only. But after complaints that people were misusing this practice, Umar enforced triple divorce.

So, despite the Quranic injunction, Umar was compelled to enforce triple divorce because a strange new situation had arisen. When the Arabs conquered Iraq, Syria, Egypt and other nations, they wanted to marry the women prisoners whose beauty captivated them. But the women insisted that their suitors give irreconcilable and irrevocable divorce to their wives. This was because they feared that the Arabs may revoke the divorce later and resume marital relationships with their wives. To satisfy them, the men would pronounce triple divorce and pretend they had divorced their wives irrevocably.

Umar, a tough administrator, understood the devious designs of his men and started to not only enforce triple divorce but also punish the offenders by flogging.

Although the dominant juristic view holds triple talaq in one sitting to be valid, there are powerful dissenting voices in each school of jurisprudence as well. Thus, there is room to treat three divorces as one revocable divorce. Indian ulema should consider adopting this alternative view.

This is the first part of a two-part interview.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid. It is available in bookstores.