Divorce laws changed in India

Q158 :Could you please comment on the attached article which appeared in "Indian Express" on changes proposed to the Muslim personal law concerning divorce. May I say that we always welcome any amendment which aims to safeguard the rights of divorced women. The proposed changes are based on a ruling given by the Jamait Ahle Hadith declaring the pronouncement of divorce three times at one sitting as invalid and ineffective. Hence, supporters of this ruling want triple divorce at one sitting to be abolished. This is enthusiastically supported by the All India Muslim Women's Organization.

A158 : The newspaper article which you have sent me speaks of pressure from the All India Muslim Women's Organization to try to reform the personal law affecting divorce to bring it in line with a ruling by the Jamait Ahle Hadith. It goes on to speak of the abolition of a triple divorce at one sitting in countries like Pakistan, Sudan, Turkey, and Egypt. It then refers to certain cases where hardship has resulted, particularly to the divorced woman and her children as a result of the enforcement of the present law which considers a triple divorce as a third divorce. Because this is a highly important subject, I will explain the matter in detail, although I have spoken about it on more than one occasion. It is often easy to misinterpret certain aspects of the question and then draw the wrong conclusions. In this particular instance, we have such a mistake in the newspaper article. For example, the ruling of Ahle Hadith is cited as "declaring the pronouncement of three talaqs (i.e. divorce) at one sitting as invalid and ineffective." I very much doubt that the ruling says so much. Most probably the ruling described the triple divorce as "forbidden", but certainly neither invalid nor ineffective. I will discuss this point further presently. First, let me explain that according to the Islamic system, a divorce can be revoked and the marriage reinstated twice. In other words, a man may divorce his wife once and then be reunited with her in marriage under certain conditions. This whole process of marriage, divorce and remarriage may be done twice. If the marriage is re-established for the third time and then a third divorce takes place, then that divorce is final and no reinstatement of the marriage can be effected unless certain conditions are met. These provide for the woman to get married again first to another man. The marriage must be intended as permanent. When she has lived with her husband for some time and both of them fully intended to stay married for the rest of their lives, the woman is now in a new status. If it so happens in the normal course of life that she gets divorced by her new husband, or if he dies, then when her waiting period is completed, she may be reunited in marriage with her first husband provided that both of them think that they can make it this time. This marriage with another man is conditional after the third divorce. It must be approached as a full marriage intended to last. It cannot be arranged for the particular purpose of making that woman lawful for her first husband. If it is, then the marriage itself is not valid and it cannot produce any effect on her being unlawful to reunite with her first husband. The process of revocable divorce is an aspect of God's grace which He bestows on us in abundance. Problems may arise in any marriage, and if the couple are not careful, a break may take place and a divorce is initiated. When the two of them separate, they might realize that their loss by divorce is too great. They might have a special attachment to each other. They may have young children and they may realize that the divorce is going to have a highly negative effect on them. They may reflect and conclude that with an extra effort on the part of each of them, they could make their marriage successful. Hence, God has allowed a reinstatement of the marriage. This can be done without the need of a fresh marriage contract, if the reinstatement of the marriage takes place within the woman's waiting period. If the waiting period has lapsed, then a fresh marriage contract and a fresh dower are needed. Now if a person divorces his wife three times in one sitting, or on the same occasion, then he is actually trying to override certain provisions of Islamic law which make a remarriage possible. I understand that many people do not realize that divorce is initiated by a single pronouncement of the word of divorce. They mistakenly believe that they have to say it three times. The fact is that a triple divorce on the same occasion, or in quick succession, is an affront to Allah's law. It seeks to reach the position of "no marriage" at one stroke. That is not open to anyone. A man divorced his wife three times in the same session and came to the Prophet to tell him of what he did. The Prophet was very angry. He addressed his companions saying: "Is God's book to be trifled with when I am still living among you?" He then made it clear that the triple divorce be counted as a single divorce, which meant that it was revocable. The Prophet's attitude and his description of the triple divorce as "trifling with God's book" make it clear that such an action is forbidden. Most people in India and Pakistan, as well as in other countries, take the view of the Hanafi school of thought, which is shared by others as well. This view considers that a triple divorce in the same place and on the same occasion counts as three divorces. The scholars who share this view base their arguments on the action of Umar ibn Al-Khattab who felt that people were increasingly resorting to a triple divorce at the same time. He said: "People are precipitating something concerning which they have been given respite. It may be wise to impose it on them." He proceeded to make that imposition. In other words, Umar wanted to punish those people who resorted to a triple divorce at the same time by making it binding. He did not initiate a new ruling. He simply committed people to what they said. He made their words binding on them. It is open to a ruler to impose such a punishment. That is the reason why the Prophet's companions who were alive at the time did not object to Umar's action. They understood it as a punishment which would be valid for a limited period of time. It was the acquiescence by the Prophet's companion that made the scholars like Abu Hanifah adopt Umar's view as binding. They treated it as a verdict unanimously supported by the Prophet's companions. We come now to the conclusion of this discussion by saying that if a man divorces his wife three times on the same occasion, he violates God's law and commits something that is forbidden. His words count as a single divorce. Revoking the divorce and reinstating the marriage requires a fresh marriage contract if the woman's waiting period is over. In any case, it requires a minimum of two witnesses. Practically speaking, it is impossible to effect three divorces at the same time. A man can only divorce a woman who is his wife. When a man says to his wife, "I divorce you", once, he starts a process which gives his wife a new status. She is no longer his wife. Although the divorce process is only at the beginning, the woman is not married to him. How can he, then, divorce her a second time? That is impossible. I need to see the ruling given by Jamait Ahle Hadith in order to comment on it. I believe that it is given on the same lines I have mentioned in this answer. Women's organizations in India may campaign for a reform of the personal law on the basis of Islamic principles. They will find that a number of Muslim countries have adopted the view I have outlined. This is certainly a great step forward.

Our Dialogue ( Source : Arab News - Jeddah )