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

 

I discussed the validity of triple talaq with MaulanaZainulAbideen, who was visiting Garden Grove about 15 years back. He was running a huge school of Islamic studies for girls, “JamiathulBannath” in Hyderabad and was teaching Tafseer (Exegesis) there.

When I pointed out to him the above facts (see first part of the article in last week’s issue) and asked him to give his opinion about triple talaq, he said: it is not my opinion that matters but it is consensus. I interjected to mention the name of scholars of Islamic renaissance like Ibn e Thimia and Shah Valiullah who have spoken against it. He said that they are two amongst thousands of Islamic scholars who oppose it. When I put forward to him my argument that Nabi SA was receiving revelation even in individual cases and he could decide based upon it to pronounce separation between a husband and a wife in case of Talaq e Tahreemi (Triple Talaq) with a caveat of disapproval.

Do our scholars also get the revelation to know which of such cases is genuine and justifiable to pronounce such divorces as valid and destroy the lives of families and which one is not? I asked. He was flabbergasted and said: This is an issue on which even Khalif Omar had to relent from his opposition to the practice of Triple Talaq in the face of opposition from consensus (Ijma); I am a small fry to go against the consensus. He further said: In a society where opportunities for husband and wife to be suspicious of each other abound, this practice will continue otherwise people will either kill the spouse on a doubt of infidelity (Honor Killing) or practice “Zahhar”, a practice of abandoning sexual relations with wives giving opportunities to more suffering for women and men both. One may read first 6 verse of Chapter 58 of the Qur’an for more details on Zahhar.

What MaulanaZainulAbideen said may be correct, but Allah put Nabi SA and his wife Aisha RA into a situation of slander and gave the principles of Islamic law to save individuals and societies from the scourge of slander and suspicion (Ch 24). These verses along with many Hadiths related to this episode give a basis to solve the problem of slander and suspicion and to also take care of infidelity.

Unfortunately, these principles of law dealing with consensual sex and slander are being applied in the case of rape where it is difficult to obtain four witnesses to subject raped women into double jeopardy and men into added safety for their crime. The onus of our poor understanding and practice of Islamic law is put on Islam. I am glad that Pakistan has passed a law against honor killing to save girls from the excesses of their own society.

Allah has not foreclosed the admissibility of circumstantial and scientific evidence in case of rape. Allah has provided the procedure of La’Aan to keep both the women and men safe from adverse publicity and punishment in case of false allegation of rape (Ch 24 V6-9). This can happen in camera in the privacy of a court without any fear of adverse publicity to the victim of rape. But for this the court and the individuals must be honest. Problem with any law is not its deficiency but our lack of honesty and we blame the laws, both secular and religious, for our lack of honesty. To enjoy the lives of dishonesty our progressive writers and thinkers have made us believe that God is a myth and morality is relative.

Chief Justice Chadrachud of the Indian Supreme Court tried to solve one fallout of triple talaq in the eighties with regard to alimony, and the process is continuing to this day sparking more debates. A lady by the name of Shah Banoo had petitioned about her pitiable condition after divorce as she had no support from her husband and she had no one to take care of her. The case went up to the Supreme Court and it decided that verse 241 of Ch2 mandates appropriate alimony to the divorced wife as a duty to a pious man. Justice Chandrachud understood the meaning of this verse correctly while the “Islamic scholars” restricted its meaning to giving of Meher which was decided between spouses at the time of marriage, irrespective of the financial status of the husband at the time of divorce. Any other favor was left to the discretion of man.

I brought this issue before MaulanaMujahidul Islam Qasimi (RA), Ameer e Shariah Bihar who was visiting Mysore in the late 80s to establish the Shariah Court which was permitted by the government to lessen the burden on regular courts. The following day when I went to see him at the Islamia College Guest House in Mysore, he was sitting on a mat in the veranda of the Guest House and waiting for his ride to catch the train. When I asked him about his interpretation of the verse and the judgement of the Supreme Court, he said: The verse quoted by Justice Chandarchud is a recommendation and not a mandate. Good men will honor their commitment to good women with whom a divorce becomes inevitable. He further said: By keeping the meaning of this verse as a recommendation and not a mandate Islamic law intends to protect many good men from whom divorce is sought by wives to get millions in settlement. I had to relent with a caveat but then who will decide if the divorce sought is for genuine reasons or for money. He said that that is where belief in God and the accountability of the Hereafter is essential for people to be responsible not just in the matter of marriage and divorce but for everything else. He further said that pious people need no law and for fearless people no law is satisfactory.

Islamic law, like all laws, wants to develop a monogamous society and the verses mentioned by Dr Abdullah point to it. The permission for up to four marriages was given as a first step in a society where there was no limit to the number of wives one could have. It was also to take care of the situation of war widows, mass migration and uncared for women, etc.

Sometime there can be a genuine need to demand a second marriage like the sickness of a spouse. Ordinary people want to live a monogamous life with their loving wife and raise good family and they want the society and the governments to help them in this endeavor by ending the cut-throat competition and greed that has made marriage and home a distant dream for many, opening floodgates to cheap fun and social problems.

A few years back I saw an interview conducted by Larry King in which the owner of the Play Boy magazine appeared with four young girls who had been living with him in his famous mansion for years. He told Larry King that it was not polygamy and they were not his mistresses but it was a “Life Style”. I don’t know where those women are now when the mansion has been sold and this gentleman is living in a part of it. Will someone interview them to find out about how they feel about the upbeat support of the “life style” which they were living in that interview? There are some people who are polygamous by nature as there are people of other sexual orientation. There is a need of legal framework to take care of the rights of such women and their children.  You can call it polygamy or Life Style but it needs laws that are enforceable.

Men are equal in capacity and not equal in achievement; some can’t afford even one wife and some are not satisfied with one, and this is a test in which all of us are being tested in life to see how both the haves and the have-nots behave in their achievement and in deprivation (Ch6 V165). Parity is an ideal and a catchy slogan which helps not those who dream of it and work for it but for those who live their lives by advocating it and promising it, plunging the world into street fights, debts and international conflicts. It is only a microscopic minority of Muslims who practice polygamy giving the same legal and social status to their second wife as the first one. The remaining is keeping their second and third wife in shadow giving them and their children no legal and social status. Still, they undertake a clandestine marriage to assuage their hollow faith of accountability for sin with utter disregard to the more important aspect of honor of these women and their children. It is such people who cause untold miseries to women by carrying on the scourge of Triple talaq, honor killing etc.

A law is neither Islamic nor secular. It is law and it should benefit from all the legal and life experiences of all people. Secularism, as a tenet of liberal democracy, does not mean to banish religion from the Public Square, but to give right to all religions to display and debate their precepts and practices in a fair and civilized way for the people to adopt what is good for them and their society. Religion came to give principles of universal good to the imperfect and fallible man to evolve to perfection. But those who want man to remain imperfect for their advantage used their big mouths, big pockets and strong hands to hijack religion and discredit it by interpreting it to their advantage.

In the true spirit of a model of true liberal democracy, the United States of America, in its Supreme Court which is a Gothic edifice with a  Greco-Roman sprit, the names of Semitic  prophet like Moses, Solomon and Muhammad (Peace be upon all of them) are mentioned along with other top Law Givers to remind us that good and bad is not the monopoly of anyone and we only need a discerning eye to see it and an unbiased mind to accept it and a commitment to the universal values to adopt it in order to benefit from what is good and shun what is not.

 

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Editor: Akhtar M. Faruqui
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