Talaq and Khula in Islam

What controversy is going on triple talaq in India?

Triple Talaq enables a man to simply utter the dreaded words thrice and unilaterally divorce his wife. According to a survey conducted by Mumbai-based Bharatiya Muslim Mahila Andolan, nearly 92 per cent of Muslim women want a total ban on oral unilateral divorce.

Now India’s supreme court looks set to declare triple talaq, and another law forcing women who re-marry their husbands to first sleep with another man, unconstitutional. Banning the custom would free up to 90 million Muslim women in the country from a potential trapdoor divorce.

It is ironic that many countries have banned this method including the Muslim countries of Saudi Arabia, Indonesia and even closer to home, the neighbouring nations of Pakistan and Bangladesh and yet the practice is still seen as legal and is being misused in our secular country.

Sure enough, as the supreme court has examined triple talaq these past weeks, members of the ruling Hindu nationalist party have raised the prospect of replacing all religious personal laws with a uniform civil code, which some Muslims fear might be Hindu-inflected, and ride roughshod over their beliefs.

The All India Muslim Personal Law Board (AIMPLB) says it will continue to defend triple talaq. Some So-called rationalist/free thinkers and some poets and authors of West Bengal blessed by TMC  say that BJP government is targeting Muslim community through it and banning of triple talaq would indirectly strengthen RSS.   Senior TMC leaders have made it clear that the party will oppose the abolition of triple talaq and imposition of UCC.

We are against BJP/RSS.

 But anyone who is against UCC , should answer a few questions.

1. Should a girl at an age of 15 get married?
2. Should a man be allowed to marry as many women as he wants?
3. Should a man be allowed to chant ‘Talaq’ 3 times in a single sitting or via whatsapp, facebook and message to divorce his wife but not the other way round?

A human being with even an iota of common sense will answer “NO”. But some religious extremist groups, political groups and so called intellectuals have the answer as “YES”.

Congress against hasty steps. “While we stand for equality and fair treatment for women, no hasty step should be taken which may lead to a feeling of alienation amongst any community,” party spokesman R P N Singh told reporters.

Left liberals of India silent on triple talaq.

After all, Muslims are a united Vote bank. To speak against any Muslim ill-practices means to make entire Muslim Community angry and that ends up in losing the Muslim minority votes.

Talaq and Khula: Know the bare truth

Sushanta Kumar, a self proclaimed humanist, blessed by TMC wrote in social media:

“ISLAM does not allow 3 TALAQ…. Persons who are advocating for 3 TALAQ are defaming ISLAM and MUSLIM COMMUNITY… ISLAM gave right to women for KHULLA TALAQ, REMARRIAGE after DIVORCE or WIDOWSHIP and moreover share of FAMILY PROPERTY…. Being a non religious person and student of comparative theology I have nothing to say but those persons are helping RSS indirectly as TASLIMA did…”

Sushanta wrote :

1. Islam does not allow 3 Talaq. (Really?)
2. Islam gave right to women for Khula Talaq. (Is Talaq and Khula one and the same?)

Let us not break our head finding out if Sushanta wrote this out of ignorance or have some other motives.

Rather let us find the answer to the questions.

Can a Muslim man divorce his wife simply by repeating “I divorce you” three times?

Yes. It is a controversial practice called the talaq or “triple-talaq.”

Anytime a wife is not menstruating, a husband may divorce her by saying, “I divorce you, I divorce you, I divorce you,” effectively throwing her out on the street and leaving him free to obtain a new wife.

The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. (Quran verse 2:229)

And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plan for the people who have knowledge. (Quran verse 2:230)

This is one of several hadith in which it is clear that Muhammad practiced the triple talaq and approved of his followers doing the same.

Sahih Muslim (9:3493):

Abu al-Sahba’ said to Ibn ‘Abbas: Enlighten us with your information whether the three divorces (pronounced at one and the same time) were not treated as one during the lifetime of Allah’s Messenger (may peace be upon him) and Abu Bakr. He said: It was in fact so, but when during the caliphate of ‘Umar (Allah be pleased with him) people began to pronounce divorce frequently, he allowed them to do so (to treat pronouncements of three divorces in a single breath as one).

Procedure of Talaq in Islam

There are two ways by which divorce takes place.

Talaq Sunni and Talaq Bidpi (an innovated divorce)

As per Talaq sunni, the husband may initiate the divorce process by pronouncing the word talaq, the formula of repudiation, or a statement of equal meaning in another langauge such as “I divorce you,” at a time when he has not engaged in any sexual relations with her after her last menstruation, whilst his wife  is in a state of purity, that is, she is
not menstruating or in a state of ‘nifaas’, post natal bleeding, and that he declares the divorce once only.

And divorced women shall wait (as regards their marriage) for three menstrual periods,and it is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation.  (Qur’an 002:228)

A single pronouncement is sufficient to suspend the marriage, but after three divorces, the divorce is irrevocable unless the wife has remarried, consummated the marriage, and is divorced by her new husband with honest intention, and not merely to allow her to remarry her former husband.

And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the limits of Allah, which He makes plan for the people who have knowledge.

When three pronouncements of divorce are declared at once, they are considered three separate divorces and the divorce is irrevocable afterwards; a minority opinion of the Hanbali school regards three simultaneous pronouncements as a single divorce, but this is rejected in most legal schools. Confusion over the procedure, status, and binding nature of divorce pronouncements is a common question brought before Islamic authorities.

And so if one of the previously mentioned conditions is violated, the divorce process is
considered as having been carried out in an innovated manner. Talaaq Bidpi, is where a man divorces his wife while she is menstruating or is in a state of post natal bleeding, or that he divorces her after having had sexual relations with her after her last menstruation, or that he divorces her by verbalizing the divorce three times in one utterance or one same sitting.

This is the overwhelming opinion of the majority of the scholars, except that Imaam Ash-Shafi did not consider the utterance of divorce at one time as an act of innovation.

Imaam ash-Shafi’s opinion is refuted based on the hadith colleted by Bukhari and Muslim whereby ibn Umar, the son of Umar ibn Al-Khataab , divorced his wife when she was menstruating. So Umar asked the Muhammad about his sons actions in which he replied: Command him to take her back, and keep her till she is purified, then has another period, then is purified. If he wishes he may keep her and if she wishes he may divorce her before having sexual intercourse, for that is the iddah (period of waiting) which Allah commanded for the divorce of a woman.

Narrated ‘Abdullah bin ‘Umar: that he had divorced his wife while she was menstruating during the lifetime of Allah’s Apostle . ‘Umar bin Al-Khattab asked Allah’s Apostle about that. Allah’s Apostle said, “Order him (your son) to take her back and keep her till she is clean and then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and if he wishes to divorce her he can divorce her before having sexual intercourse with her; and that is the prescribed period which Allah has fixed for the women meant to be divorced.”[Bukhari Volume 7, Book 63, Number 178]

When Muhammad ordered him to take her back then surely the divorce was counted otherwise why Muhammad ordered to take her back rather then saying the divorce is not count?

He divorced her three times. Now he wants to marry her again

If a man divorces his wife three times, she is not permissible for him until she has been married to another husband.

“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allâh. These are the limits of Allâh, which He makes plain for the people who have knowledge” [al-Baqarah 2:230]. 

And it is essential that the second husband have intercourse with her; if no intercourse takes place between them, she does not become permissible for the first husband.

The scholars are unanimously agreed on that, and the evidence for that from the Sunnah is the report narrated by al-Bukhaari (2639) and Muslim (1433) from ‘Aa’ishah (may Allah be pleased with her), that Rifaa‘ah divorced his wife for the third time, and after that she married ‘Abd al-Rahmaan ibn al-Zubayr, and claimed that he had not consummated the marriage with her and she wanted to get divorced from him and go back to her first husband.

The Messenger (blessings and peace of Allah be upon him) said: “Do you want to go back to Rifaa‘ah? No, not until you taste his (‘Abd al-Rahmaan’s) sweetness and he tastes your sweetness.”

Al-Nawawi said:

The words  “not until you taste his sweetness and he tastes your sweetness” are a metaphor for intercourse, likening its pleasure to the sweetness of honey.

In this hadith we see that the woman who has been divorced three times is not permissible for the one who divorced her until she has been married to another husband and he has intercourse with her and then he divorces her and her ‘iddah’ comes to an end. As merely doing the marriage contract with her,  does not make her permissible for the first husband.

Ibn Qudaamah said:

After the Prophet (blessings and peace of Allah be upon him) clearly explained what was meant in the Book of Allah, may He be exalted, and that she is not permissible for the first husband until the second husband tastes her sweetness and she tastes his sweetness, no differing view should be given any consideration and it is not permissible for anyone to follow a different view.

End quote from al-Mughni, 10/549 :

If there is an agreement with the second husband that he will marry her in order to make her permissible for her first husband, or if the second husband intends that without any prior agreement with anyone, and he does not want to marry her (except for this purpose) or stay with her, then this is a ‘tahleel’ marriage and the Messenger of Allah (sa) curse the one who does that. The woman does not become permissible to her first husband by means of this haraam marriage, even if the second husband has intercourse with her.

Ibn Qudaamah  said:

Tahleel marriage is haraam and is invalid according to most scholars. … If it is stipulated that it is tahleel before the marriage contract is done, but it is not mentioned in the marriage contract, or he intended it as a tahleel marriage without that being stipulated, then the marriage is also invalid.

Khula

Khula is the right of a woman to seek a divorce from her husband in Islam for compensation (usually monetary) paid back to the husband from the wife. Based on traditional fiqh, and referenced in the Quran and hadith, khula allows a woman to initiate a divorce through the mutual consent of the husband or a judicial decree.

Holy Quran Chapter 2 Surah Baqarah verse 229 (part):

If ye do indeed fear that they would be unable to keep the limits ordained by Allah there is no blame on either of them if she give something for her freedom (divorce). These are the limits ordained by Allah; so do not transgress them. If any do transgress the limits ordained by Allah such persons wrong (themselves as well as others).

If the wife initiates a divorce for a strong and genuine reason/s, she would be blameless for the divorce taking place in the Sight of Allah Subhanah; but if a wife initiates a divorce for frivolous reason, indeed she will be held to severe account for breaking the sacred institution of marriage.

Sunan of Abu-Dawood Hadith 2218 Narrated by Thawban:

The Prophet (saws) said: If any woman asks her husband for divorce without some strong reason, (even) the odour of Paradise will be forbidden to her!

The difference between khula and talaaq

‘Khula‘ is not regarded as a divorce (talaaq), but it is an annulment of the marriage. The wife cannot go back to the husband after khula‘ except with a new marriage contract.

One of the differences between annulment and divorce is that annulment is not counted as a talaaq, so if you go back to your husband now, he still has the option of three talaaqs.

But if he has given you one talaaq and your ‘iddah has ended, if he does a new marriage contract with you, he only has two talaaqs left.

Any word that is indicative of separation, accompanied by payment of compensation on the part of the wife, is khula.

If the husband utters words of talaaq along with the khula‘, such as if he says, “I divorce you on condition that you return the mahr to me,” this is an annulment of the marriage according to the correct opinion. In other words, the khula‘ is an annulment even if the husband utters the word of talaaq at the same time.

“In Islam a woman is allowed the same divorce rights as a man.” Really?

Consent of the Husband

In case of  talaq ,the wife cannot refuse the divorce and in case of khula, the husband has the right to refuse. In regard to the consent of the husband, husband’s agreement is a basic procedure and essential to the granting of divorce, unless extenuating circumstances apply. While this is the prevailing interpretation, other interpretations suggest that the husband does not have to consent if the grounds of divorce are valid, such as cruelty (darar) or impotence (if undisclosed to bride at time of marriage). In addition, if a husband cannot provide his wife with basic marital obligations, such as shelter or maintenance, a woman may be granted khula. (Ref: Asghar Ali Engineer, The Rights of Women in Islam. New York: St. Martin’s Press. p 137-138)

If the woman is underage, then consent must be given from the guardian of her property. (Ref: Dr. Jamal J. Nasir (2009). The Status of Women Under Islamic Law and Modern Islamic Legislation. Netherlands: Brill p 131)

In almost all cases, a woman must have clear evidence in her favour to be granted khula.  (Ref: Asghar Ali Engineer, The Rights of Women in Islam. New York: St. Martin’s Press. p 137-138)

The laws of khula in particular cannot be found in the Qur’an directly, so a court judge must discern from Hadith and Islamic jurisprudence historical cases what they believe to be valid reasons for divorce. (Ref: Macfarlane, Julie Islamic Divorce in North America: A Shari’a Path in a Secular Society Oxford: Oxford University Press, 2012 p168-169)

Role of the Court

If the husband does not consent to the divorce, a woman often goes to a mediating third party, such as an imam. Only a person versed in Islamic law i.e. a qazi, or Islamic Sharia court judge, can grant the khula without the husband’s consent. When petition for khula is taken to the Sharia courts, a judge is permitted to substitute the husband and annul the marriage. This process of judicial annulment is also commonly referred to as faskh, which typically occurs when the husband refuses to consent to the wife’s decision to divorce.  (Ref: Tucker, Judith E. (2008). Women, Family, and Gender in Islamic Law. Cambridge: Cambridge University Press. p 97-99)

Compensation

Most Islamic schools of law agree that the husband is not entitled to more than the initial amount of dower (mahr) given to the wife.

However, some interpretations suggest that the husband is entitled a greater compensation, while other interpretations suggest that the husband is not entitled to any compensation. (Ref: Asghar Ali Engineer, The Rights of Women in Islam. New York: St. Martin’s Press. p 137-138).

Technically, khula demands that the mahr already paid be returned along with any wedding gifts. Men sometimes prefer and pressure their wives to demand a khula instead of the husband pronouncing a talaq so that the husband can demand the return of the mahr. Another scenario that often arises in khula is that the husband will request an unreasonable financial compensation. This can effectively constrain her from seeking khula because they have no means to support themselves financially with the loss of their mahr and other wedding “gifts.” (Ref: Macfarlane, Julie Islamic Divorce in North America: A Shari’a Path in a Secular Society Oxford: Oxford University Press, 2012 p195-196)

Contradictory stands of BJP

We favour the ban of triple talaq.

At the same time we need to understand the game plan of BJP.

BJP is going all their guns blazing to reform Muslim Personal Law because BJP doesn’t have a Muslim vote bank to lose but there is a Hindu vote bank to gain.

The irony is that all BJP leaders employ the yardstick of modernity to stereotype Muslims and declare aspects of their personal laws out of sync with the times. At the same time, it wields the stick of tradition to beat, quite literally, the Muslim community.

How?

Take cow slaughter, the debate over which BJP has not cite the principles of modernity and economic rationality to argue in favour of it. Instead, BJP invokes the argument of religious sentiment to justify the complete ban on cattle slaughter – not only cows, but also bullocks and oxen, regardless of their age. Is modernity manifest in this position?

In fact, economic rationality, a distinguishing trait of modernity, should inspire BJP to argue in favour of lifting the complete ban on cattle slaughter as it exists in Gujarat, Haryana, and Maharashtra. BJP is in power in these three states.

BJP is talking about the individual’s fundamental right.The restriction on slaughter is imposed to “favour and appease” a section of the society — Jains — but the fundamental rights of the other section of the society, particularly, Muslims are allegedly violated.Will BJP stand up for the fundamental right of Muslim butchers as they are so poignantly doing for Muslim women on talaq issue?

BJP advocates “Let there be a wider debate on this critical issue [triple talaq].”

BJP’s love for debate is a newfound one. Till now, it has shown a penchant for silencing anyone who questions the extant idea of nationalism and the Army’s role in states witnessing secessionism,  Rohit Vemula issue, surgical strike- if it is genuine or fake,Amnesty Report on Blackout in Bastar, Or when a Hindu woman asserts her right to marry a Muslim man or even when teenagers decide to celebrate Valentine’s Day.

Let us face it, BJP wishes to debate the issue of triple talaq because it suits them. BJP leaders know that attempts to reform Muslim Personal Law will provoke the Muslim Personal Law Board to join the slanging match in television studios. Soon, you will see them organise street protests.

The furious debate will turn triple talaq into an electoral issue before Uttar Pradesh goes to the Assembly poll early next year, thereby creating the political ambience for Hindu and Muslim consolidation.

Indeed, Hindutva and Muslim organisations have helped each other grow right through the 20th century. It continues even today. This is why BJP’s modernity is politically expedient. It is a stick to goad Muslims in order to build a Hindu vote bank.