Is Triple Talaq and Polygamy Compliant with Islamic Law - Part 1
By Dr Basheer Ahmed Khan
Garden Grove, CA

 

Dr Aslam Abdullah in his article “Marriage and Divorce: A Qur’anic Perspective,”  (Pakistan Link, September 16, 2016) has presented the Qur’anic point of view on monogamy, exception for polygamy and against Triple Talaq in a convincing way. This is in accordance with the advice of the Qur’an to interpret and implement the revelation in the best way (Ch7 V145 & Ch39 V18). But the problem is that Sharia is not derived from Qur’anic verses alone, but also from the tradition of Prophet SA, his companions RAA, collective wisdom of scholars (Ijma), and the Msaleh (needs of time).

Even though each has its place but the priorities are decided not on established rules of exegesis or jurisprudence, but on the inclination of the ruling class, public need and public opinion. The susceptibility of Islamic scholars to the preferences of sovereign governments in every nation in history has also contributed to Islamic law as it exists today.

We have made the Qur’an ineffective by linking the verses with universal application to the situation related to their revelation. Sometime scholars themselves are not unanimous about the situation in which these verses were revealed. The verses given in Dr Abdullah’s article in support of monogamy and against triple talaq, are not used in their general meaning and application by other scholars who are in favor of polygamy and triple talaq. Another reason why there is no unanimity in application of Qur’an in deciding an issue is, that of the many meanings that can be given to a word, as is the case in the Arabic language, the one that is suited to support a viewpoint of a scholar is given priority rather than the one that is best suited in the contextual situation and is in the spirit of the best interpretation in accordance with the letter and spirit of the Qur’an (Ch7 V145 & Ch39 V18). An example of this is the world Tamanni in the chapter of Hajj.

Even though the Qur’an is the first source of Islamic law most of the scholars ignore the Qur’an and go by Hadith in making laws on the pretext that Nabi SA does not speak anything of his own but what Allah reveals to him (Ch53 V30) and is therefore the correct example to be followed than to rely on our understanding of the Qur’an. The verse 30 of Ch. 53 in which Allah says:  NabiSA does not speak of his own desire but what is revealed to him, was to refute the allegation that Nabi SA is making up a story of his journey to Jerusalem and heaven. This verse is also an affirmation to the quality of Nabi SA given in the Old Testament: he shall speak unto them all that I command him (Deuteronomy Ch18 V18), and in the New Testament: he shall not speak of himself but whatsoever he shall hear (John Ch16 V13). While this verse which is specific to a situation is used in its general connotation to use even the weak hadith to form the basis of Islamic Law rejecting unambiguous Qur’anic verse to satisfy our preference in formulating a law rather than honoring the word of God and his messenger.

Nowhere has this dichotomy harmed the practicing Muslims more than in the matter of the injudicious use of triple talaq and in both monogamous and polygamous marriages. Thanks to all the righteous scholars who consider it wrong to give preference to Hadith, no matter how authentic be its chain of narration, and how clear its meaning when the nus of Qur’an goes against it. Because of these righteous scholars we are able to differentiate substance from shadow and grain from chaff with regard to Islamic laws even to know what true Islamic Law is even to this day.

Divorce is sometime essential. How desperate some people are for divorce is evident from this anecdote in my life. A colonel who was sitting by my side as we were eating lunch in the mess said: You Muslims are lucky you can divorce your wife just like that by saying talaq, talaq, talaq three times, whereas my case of divorce is pending in the court for the past several years and I can neither marry nor go back to my previous wife. I am seriously thinking of becoming a Muslim, he said, but my case with my previous wife is foreclosing even this possibility on me.

When we destroy our social fabric by our misdeeds and want to quick fix our problems using religion then we are bound to destroy both ourselves and religion. In one of the interviews on a mainstream channel done with divorced men and women I heard them say that they regret their decisions to divorce their spouses in haste, and that they like their ex-spouse more than the new one and if they had a chance they were ready to reconcile and go back to their previous spouse. The heads of many religious institutions are reconsidering the irrevocable status of marriage in their religions. I only hope that this effort benefits from the good of Qur’anic injunctions and hadith and stays away from their bad interpretations.

Nabi SA considered divorce to be a necessary evil and he said: Of the many things that are permitted by God, the most He abhors is divorce. That is why Allah has laid down details of it in the Qur’an. Allah Swt has also warned of severe consequences for not treating women the right way (Ch65 V8). One of the important reasons why Muslims are suffering these days is because of ignoring the clear instructions which Allah and his messenger SA have given in regard to marital relations and responsibilities. There are very few details in the Qur’an about prayers and other rituals which are the main preoccupation of a practicing Muslim, but issues related to marriage, divorce, childcare, etc. are mentioned in greater detail for a reason. Prayer is for self-development which is essential but improper behavior of an evolved and truly guided person (Muslim) in relation to women whose company he has made permissible on himself in the name of Allah through a covenant. If a Muslim does otherwise it would be an anathema and that is why Allah and his messenger explained family matters in so much detail and has given due weight to the right of both women and men.

The responsibility of men on women exceeds that of a woman on man and that is why he is called a Qay-yim but unfortunately this is understood by men as being the boss over women and not as caretaker and protector (Ch5 V34). Because of the bad example of these so-called “caretakers and protectors” this concept of Qay-yim has gone into disrepute. Many a “liberated Muslim woman” want that they be left alone, they have thus become susceptible to unknown devils. These unknown devils are playing havoc on the women and society both in the name of liberation and protection.

In the Dark Age when Nabi SA was anointed as prophet it was the practice of the rich to have as many wives as they wanted. Not being able to do justice to all of them they would divorce their wives and still hold them as their property and reunite with them at will thus subjecting the women to a life of perpetual insecurity. To end this Allah restricted that a man can keep only four wives at a time and prescribed a procedure of divorce in three stages (Ch2 V 225-233) with opportunity to reconcile over a minimum period of four months and extending it over the whole life if a man had not exhausted all three options. This restriction and restraint was not liked by the ruling elites and they devised the practice of triple talaq to continue their practice of enjoying a fresh girl every night by divorcing one of the four wives by pronouncing words TalaqTalaqTalaq three times to create a vacancy for their new found love. Some kings and princes were not satisfied with this and they kept Harams full of women using the law “What your right hand possess” to take care of war widows, orphan girls and destitutes.

The proper procedure for divorce prescribed in Qur’an is that if there is incompatibility in relations then husband can divorce his wife once and wait for a period of four months (Ch2 V 225-233). Possibility of false positive pregnancy test should not make us abandon this waiting period to avoid future litigations about deciding paternity of a child born after divorce. Apart from foreclosing the possibility of rancorous litigation about paternity, these four months of waiting can give an opportunity to the couple to overcome their differences and enable them to live a life of understanding with the maturity gained from this experience, or if it persists they can separate keeping the chance of remarriage open for them.  During this period if the wife gets pregnant then she stays in her estranged husband’s house to give birth to the baby and take care of it giving the spouses new opportunity to reconcile. The husband has this option of divorce (Talaq e Rajee) thrice in a life time after which he can’t marry his ex-wife unless she had consummated marriage with another man and got divorce from him. This is called Halala. This is mandated in Islamic Law to make any self-respecting man to be extra careful in exercising his right of divorce on some baseless suspicion or silly problem.

But the enlightened sect of scholars who consider triple talaq also as one talaq, Talaq e Rajee, permit remarriage between such divorced couple without Halala. JamiaVellor in Tamil Nadu was one such. Women also have the right to separate from their estranged husband in the event of incompatibility and this process is called Khula (pull out) and both Talaq and Khula will have to be approved by established courts. (To be continued)

 

-----------------------------------------------------------------------------

Editor: Akhtar M. Faruqui
2004 pakistanlink.com . All Rights Reserved.