Islamic jurisprudence
Islamic jurisprudence (fiqh) has developed from four roots (usul al-fiqh):- (1) The Quran; (2) the hadis3 or sunna; (3) Ijma4;; and (iv) Qiyas5. Employing these usul al-fiqh, the ulema (the learned) conducted a scientific and systematic inquiry. This is known as the process of ijtihad. Through this process of ijtihad sprung out various schools of law each of which owed its existence to a renowned master6. For example, the jurisprudence (fiqh) developed by Abu Hanifah and continued by his disciples came to be known as the Hanafi school. The Maliki school owed its origin to Malik b. Anas, the Shafie school to al-Shafi’i, the Hanbali school to Ibn-Hanbal and so on. These are the sunni schools. Similarly, there are shia schools such as the Ithna Ashari, Jaffariya and Ismaili schools. In India, muslims are predominantly sunnis and, by and large, they follow the hanafi school. The shias in India largely follow the Ithna Ashari school.
In essence, the Shariat is a compendium of rules guiding the life of a Muslim from birth to death in all aspects of law, ethics and etiquette. These rules have been crystallized through the process of ijtihad employing the sophisticated jurisprudential techniques. The primary source is the Quran. Yet, in matters not directly covered by the divine book, rules were developed looking to the hadis and upon driving a consensus. The differences arose between the schools because of reliance on different hadis, differences in consensus and differences on qiyas or aql as the case may be7.
The question which arises is, given the shariat and its various schools, how does a person proceed on an issue which is in dispute? The solution is that in matters which can be settled privately, a person need only consult a mufti (jurisconsult) of his or her school8. The mufti gives his fatwa or advisory decision based on the Shariat of his school9. However, if a matter is carried to the point of litigation and cannot be settled privately then the qazi (judge) is required to deliver a qaza (judgment) based upon the Shariat10. The difference between a fatwa and a qaza must be kept in the forefront. A fatwa is merely advisory whereas a qaza is binding11 Both, of course, have to be based on the shariat and not on private interpretation de hors the shariat12.
The Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of dissolution of marriage recognised by it.
In India, the confusion with regard to application of customary law as part of muslim law was set at rest by the enactment of The Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the 1937 Act reads as under:
2. Application of Personal Law to Muslims.– Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law ( Shariat ).
The key words are ‘notwithstanding any customs or usage to the contrary’ and ‘the rule of decision in cases where the parties are muslims shall be the muslim personal law (shariat).’ This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are muslims to apply the muslim personal law (shariat) irrespective of any contrary custom or usage. This is an injunction upon the court13. What is also of great significance is the expression — ‘dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat.’ This gives statutory recognition to the fact that under muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in place, though with differing amplitude and width under the different schools, in an attempt to take care of all possibilities. Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return14. Mubaraat is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband. It is important to note that both under khula and mubaraat there is no need for specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of dissolution of marriage is quite common in India.
Ila and Zihar as modes of divorce are virtually non-existent in India. However, lian is sometimes resorted to. If a man accuses his wife of adultery (zina), but is unable to prove the allegation, the wife has the right to approach the qazi for dissolution of marriage. In India, a regular suit has to be filed. Once such a suit is filed by the wife, the husband has the option of retracting his charge of adultery, whereupon the suit shall fail. However, if he persists then he is required to make four oaths in support of the charge. The wife makes four oaths of her innocence, after which the court declares the marriage dissolved. This is the process of dissolution of marriage by lian.
The Dissolution of Muslim Marriage Act, 1939
At this juncture it would be relevant to mention the Dissolution of Muslim Marriages Act, 1939 which enabled muslim women of all sects to seek dissolution of marriage by a decree of the court under the various grounds enumerated in Section 218 thereof which included the husband’s cruelty, impotency, failure to maintain, leprosy, virulent venereal disease, etc. Section 2(ix) of the 1939 Act contained the residuary clause entitling a muslim woman to seek dissolution of her marriage through a court on any other ground which is recognised as valid for the dissolution of marriages under Muslim law. So, the position after the 1937 and 1939 Acts is that dissolution of a muslim marriage is permissible by the modes of talaq, ila, zihar, lian, khula and mubaraat (as mentioned in the 1937 Act) as also on a wife’s suit under the 1939 Act, on any of the grounds mentioned therein or on any other ground which is recognised as valid for the dissolution of marriages under Muslim law which would include lian. Divorce through talaq, ila, zihar, khula and mubaraat takes place without the intervention of the court. Divorce under the 1939 Act (which would also include lian) is through a wife’s suit and by a decree of the court. The muslim wife, therefore, can seek divorce either outside the court (through khula) or through court (under the 1939 Act or lian). She can also put an end to the marital tie by pronouncing talaq upon herself in the case of talaq-e-tafwiz where the husband delegates the power of pronouncing talaq to his wife. On the other hand, the muslim husband can dissolve the marriage only outside court through talaq (ila and zihar being virtually non-existent in India). Both the husband and wife can mutually decide to dissolve the marriage, again without the intervention of court, through mubaraat.
The 1939 Act introduced a very salutary principle into muslim law as it is administered in India. This is the principle of applying beneficial provisions of one school to adherents of other schools as well. The Statement of Objects and Reasons19 of the 1939 Act clearly indicates the application of Maliki law to all muslim women seeking divorce through court. It was specifically noted in the said Statement of Objects and Reasons that ‘the Hanafi Jurists, however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the Maliki, Shafii or Hambali Law’.
Talaq and its three forms
I now return to the central point in this case – talaq. This mode of dissolving a marriage is unique to muslim law. In this connection the Supreme Court, in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, , observed:
19. There can be no doubt that under the Mahomedan law the commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognised by the law. A divorce given unilaterally by the husband is especially peculiar to Mahomedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple declaration because other laws viz. the Hindu law or the Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law.
Three forms of talaq have been in existence – (1) Ahsan talaq; (2) Hasan talaq; and (3) Talaq-e-bidaat.
Ahsan talaq : When the husband makes a single pronouncement of talaq during a period of purity (tuhr) followed by abstinence from sexual intercourse for the period of iddat, such a talaq is called ahsan talaq. A divorce of this kind is revocable during the period of iddat. It becomes irrevocable when the period of iddat expires. It is irrevocable in the sense that the former husband and wife cannot resume a legitimate marital relationship unless they contract a fresh nikah with a fresh mahr. This is subject to a limitation and that is that if the talaq was the third time such a talaq was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This latter process is known as halala23. However, the process of halala cannot be employed as a device to re-marry the same spouse but, it must happen in the natural course of events. It is, in effect, a near impossibility and, for all intents and purposes, the third talaq brings about a final parting of the erstwhile spouses.
Hasan talaq: Where the husband makes a single pronouncement of divorce during three successive tuhrs, without any sexual intercourse during the said tuhrs, the divorce is known as hasan talaq. The first two pronouncements are revocable. The third is irrevocable. The first two pronouncements can be revoked during iddat. The third, cannot be. And, after iddat, the former husband and wife cannot even enter into a nikah unless the said process of halala is completed.
Talaq-e-bidaat: Where three pronouncements are made in one go (triple talaq) either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying ‘I divorce you three times’ or ‘I divorce you, I divorce you, I divorce you’ or the much publicised ‘Talaq, talaq, talaq’.
Sanctity and effect of Talaq-e-bidaat or triple talaq
There is no difficulty with ahsan talaq or hasan talaq. Both have legal recognition under all fiqh schools, sunni or shia. The difficulty lies with triple talaq which is classed as bidaat (an innovation). Generally speaking, the shia schools do not recognise triple talaq as bringing about a valid divorce26. There is, however, difference of opinion even within the sunni schools as to whether the triple talaq should be treated as three talaqs, irrevocably bringing to an end the marital relationship or as one rajai (revocable) talaq27, operating in much the same way as an ahsan talaq.
When a difference of opinion is discernible within a particular school, normally the dominant opinion is taken as representative of the school. But, this does not mean that a qazi, when required to render a decision in a specific case, cannot, in the interest of justice and equity, adopt the view of the minority within the school28. It is also interesting to note that traditionally the qazi gave the ruling based upon the school which he followed29. So, if he was a follower of the hanafi school he decided cases on the basis of hanafi fiqh. Consequently, if a dispute were to be brought to a qazi who followed shafei fiqh he would decide according to shafei precepts. In India, the secular courts while applying muslim law to muslims in accordance with Section 2 of the 1937 Act have adopted the principle of applying the fiqh to which the parties belong30. Meaning thereby, that hanafi principles would be applied to adherents of the hanafi school and ithna ashari law to ithna asharis and so on. This, however, has not been strictly followed, perhaps in ignorance. Clearly, a qazi or a judge is permitted to apply a minority view within a school of fiqh to adherants of that school. He is also permitted to apply a view taken by a school of law of which the parties are not members of. This can be done in the interest of justice and equity and to avoid hardship to any one or both the parties provided, of course, that what the judge proposes to do is not contrary to a basic tenet of Islam or the Quran or a ruling or saying or act of prophet Muhammad.
It is accepted by all schools of law that talaq-e-bidaat is sinful. Yet some schools regard it as valid. Courts in India have also held it to be valid. The expression – bad in theology but valid in law – is often used in this context. The fact remains that it is considered to be sinful. It was deprecated by prophet Muhammad. It is definitely not recommended or even approved by any school. It is not even considered to be a valid divorce by shia schools. There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history33 but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad.