Reforms in Triple Talaq under Islamic Law and Personal Laws of Muslim States

Reforms in Triple Talaq under Islamic Law and Personal Laws of Muslim States

Dr. Muhammad [email protected]

http://ssrn.com/author=1633078

Reforms in Triple Talaq: Outline

• Is legislation in Muslim States based on the opinion of jamhur or Ibn Taymiyyah?

• Are three talaq in one phrase or three different phrases in one sitting or in one tuhr counted as three or one?

• What reforms are carried out in different Muslim Countries?

• What is the law of talaq in Pakistan?• How is it interpreted by the Courts?

Reforms in Triple Talaq

• In 1929: Egyptian law provided that a divorce accompanied by a number expressly or impliedly shall count only as a single divorce and such a divorce shall be revocable except when three talaqs are given one in each tuhr.

Reforms in Triple talaq

• 1935: The Sudanese law of 1935 provides that, all divorces shall be revocable by the husband except a third divorce, a divorce before consummation of marriage and a divorce for consideration.

Reforms in triple talaq

• 1953: The Syrian law of 1953 combined the provisions of Egyptian and Sudanese law

• It provided that if a divorce is coupled with a number, expressly or impliedly, not more than one divorce shall take place and every divorce shall be revocable except a third divorce, a divorce before consummation, a divorce with consideration (khul) and such divorce is stated in this law to be irrevocable.

Reforms in triple talaq

• 1957 and 1958 of Morocco.• 1959: The Law of Personal Status of Iraq.• 1976: The Law of Personal Status of Jordan.• 1977: Afghanistan.• 1984: Libya, • 1984: Kuwait, • 1992: Yemen

Reforms in triple talaq

• 2005: United Arab Emirate,• 2006: Qatar, • 2009: Bahrain• Pakistan adopted its Muslim Family Law

Ordinance in 1961 which is adopted in Bangladesh in 1972

Reforms in triple talaq

• 1956: Tunisian Code of Personal Status divorce pronounced outside a court of law will not have any validity whatsoever

• under Article 32 no divorce shall be decreed except after the court has made an overall inquiry into the causes of rift and failed to bring about reconciliation.

• 1984: In Algerian law, ‘divorce may only be established by a [court] judgment preceded by an attempt at reconciliation by the judge which shall not exceed a period of three months.

Reforms in triple talaq

• 1956: The Marriage and Divorce (Muslim) Act, 1951 as amended up to 2006 of Sri Lanka provides that a husband intending to divorce his wife

• “shall give notice of his intention to the Qauzi (sic. Qadi)”

• who shall attempt reconciliation between the spouses “with the help of the relatives of the parties and of the elders and other influential Muslims of the area.”

Reforms in triple talaq

• However, if after 30 days of giving notice to the Qadi, attempts at reconciling the spouses remain fruitless, “the husband, if he desires to proceed with the divorce, shall pronounce the talak (sic. talaq) in the presence of the Qadi and two witnesses.

Reforms in triple talaq

• Under the Family law of the Malaysian state of Sarawak, a husband who desires to divorce his wife has to request the court

• which will look into the causes of proposed divorce and advise the husband not to proceed with it.

• However, if the differences are irreconcilable, then the husband may pronounce one divorce before the court.

Reforms in triple talaq

• It seems that Muslim States have mostly adopted the opinion of Ibn Taymiyyah on triple talaq either explicitly or implicitly

MFLO 1961 in Pakistan

• Background of MFLO:• In 1955, Muhammad Ali Bogra married his

secretary while still legally married to his first wife.

• The All Pakistan Women’s Association (APWA) began an organized agitation throughout the country.

Background of MFLO• On August 4, 1955 the government of Pakistan announced

a seven member Commission on Marriage and Family Laws,

• Dr. Khalifa Shuja-ud-Din (President), Dr. Khalifa Abdul Hakim (Member Secretary), Maulana Ihtisham-ul-Haq Thanavi, Mr. Enayet-ur-Rahman, Begum Shah Nawaz, Begum Anwar G. Ahmad, and Begum Shamsunnahar Mahmood.

• Mian Abdur Rashid, former Chief Justice of Pakistan, was appointed as President on October 27, 1955 after the death of its President

Mandate of the Commission

• The Commission was mandated to report on “the proper registration of marriages and divorces, the right to divorce exercisable by either partner through a court or by other judicial means, maintenance and the establishment of Special Court to deal expeditiously with cases affecting women’s rights.”

Background of the MFLO

• The Commission published its report on June 20, 1956 • The dissenting note of Moulana Thanavi was published

separately on August 30, 1956.• The Commission invited severe criticism from the

ulama.• The Commission recommended that 1. three divorces

in one session would amount to one pronouncement and 2. for a divorce to be effective two further pronouncements in two subsequent tuhrs would be necessary.

Commission’s recommendations

• That the legislation should provide that no person shall be able to pronounce a divorce without obtaining an order to that effect from a Matrimonial and Family Court.

• Moulana Thanvi rejected the recommendations of the Commission.

Thanvi’s Criticism

• He stated, “To put a restriction on the exercise of this right by making it ineffective if talaq is not registered or not authorized by the Matrimonial and Family Laws Court, not only amounts to tampering with the injunctions of the faith but also putting obstacles in the way of dissolution even when it becomes necessary and desirable.”

S. 7 of the MFLO• The State ignored Court’s intervention • S. 7: 1. Any man who wishes to divorce his wife shall, as

soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

• … 3. Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

S. 7.

• 4. Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about the reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

• 5. If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

S. 7

• 6. Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time, so effective.

Implications of S. 7• 1. it refers the issue of divorce to an administrative body for

bringing about a re-conciliation; • 2. talaq is not effective for ninety days during which

reconciliation shall be attempted between the parties.• Unfortunately, the reconciliation effort does not precede the

pronouncement of talaq, it follows it.• 3. although sub-section (1) mentions any form of talaq (talaq

in any form whatsoever) which in turn, obviously includes ahsan, hasan, as well as talaq al-bid‘a.

• But under Islamic law the procedure for reconciliation is only possible if only one or two pronouncements are made.

Implications of S. 7

• 4. Section 7 can be construed to have impliedly abolished talaq al-bid‘a (triple talaq)

• because it allows remarriage between the two parties after the divorce without an intervening marriage or halala, unless this is the third such pronouncement under section 7(6).

• Reconciliation after triple talaq in one session is possible according to Ibn Taymiyya, Ibn al-Qiyyam, the ahl al-hadith and the Shi‘a Imamiyya because they treat three repudiations in one session to be one.

Criticism of S. 7• 1. under Islamic law a third divorce becomes effective as

soon as it is pronounced • but under section 7 a third divorce will be effective after

ninety days have elapsed from the date of the receipt of the notice by the Chairman (and not from the date of pronouncement of talaq).

• 2. under Islamic law, ‘iddat is counted from the time of the pronouncement

• but under section 7 it is counted from the time the notice is received by the Chairman.

• problems arise when no notice is sent to the Chairman.

Criticism of S. 7

• 3. under Islamic law divorce of a couple who have not yet consummated their marriage becomes effective immediately and no ‘iddat (waiting period) is required for the woman.

• But under the MFLO every divorce whether the marriage is consummated or not, will be effective after the expiry of ninety days since the receipt of the notice by the Chairman.

Criticism of S. 7

• 4. according to section 7, the ‘iddat of a woman who is not pregnant is over ninety days

• but under Islamic law, her ‘iddat is three monthly courses.

• 5. under section 7 the ‘iddat period of a pregnant woman is the end of pregnancy or ninety days, whichever is later.

Criticism of S. 7

• According to the Qur’an, it ends with the end of pregnancy which may be less than ninety days.

• 6. under section 7 effectiveness of talaq is dependent on the notice of talaq to the Chairman and reconciliatory efforts by him.

• This has no basis in Islamic law.

Judicial Interpretations of Section 7

• Consequences of failure to give notice of talaq• In 1963 Gardezi case the Supreme Court of

held that where the husband did not give notice of talaq to the Chairman, he would be deemed to have revoked the talaq

• This remark of S A Rahman was raised by the HCs and the SC in subsequent cases to the standard of a ratio

Judicial (mis)interpretation of S.7

• The dicta of Gardezi case became the ‘Gardezi rule’• In 30 years there have been two exceptions to it

because the peculiar circumstances of those cases• A woman ‘ld be divorced orally without giving any

notice to the Chairman ‘ld be accused of zina with her new husband

• Such a husband used to benefit from his own failure by abstaining to give notice of talaq

• The PWA 2006 put an end to this

The S C overruling the Gardezi case

• In 1993 the S C in Kaneez Fatima case held that "failure to send notice of Talaq to the Chairman of the Union Council does not by itself lead to the conclusion that Talaq has been revoked. It may only be ineffective but not revoked."

Kaneez Fatima Case

• It was held that “In case where with the consent of both the parties divorce is effected and confirmed in writing under their undisputed signatures section 7 should not be strictly construed.”

• The Court opined that “the notice can be sent at any time thereafter to comply with the provisions of section 7.”

Kaneez Fatima Case

• The Court held, “So far the observations made in Syed Ali Nawaz Gardezi's case, it may be observed that failure to send notice of Talaq to the Chairman of the Union Council does not by itself lead to the conclusion that Talaq has been revoked. It may only be ineffective but not revoked.”

Another Strange decision?

• In Mst. Farah Naz v. Judge Family Court (2006) the S C held that

• “[O]ral allegation of Talaq would neither be effective nor valid and binding on the appellant.”

• The Court didn’t refer to the Gardezi case or Kaneez Fatima case

• It was a Divisional Bench decision• Kaneez Fatima was a larger Bench (5) decision

Inconsistency of the S C

• The S C is inconsistent regarding its interpretation of S. 7

Triple talaq and Indian Cases

• Unlike Pakistan and Bangladesh there is no statutory law on talaq in India

• Indian High Courts have ruled that triple talaq amounts to one

• In Mariam v Md. Shamsi Alam (1947) the man pronounced triple talaq but wanted to reconcile but the wife filed for a declaration that she has been divorced

Case law in India

• The Allahabad H C held that “A divorce pronounced thrice in one breath by a Muslim husband would have no effect in law, if it was given without deliberation and without any intention of effecting an irrevocable divorce; such divorce is a form of talq-e-ahsan, and thus is revocable by the husband before the iddat expires.”

Case law in India

• In Rahmat Ullah v. State of U.P. (1993) the Lucknow Bench of Allahabad High Court

• A notice was issued to Rahmat Ullah, under the U.P. Imposition of Ceiling on Land Holding Act, 1972.

• He pleaded that since he had divorced his wife Khatoon Nisa the land belonging to her was mistakenly added to his assets.

• Both Khatoon Nisa and Rahmat Ullah produced a document to prove their divorce 25 years ago.

Case law in India

• Under the Act, a married woman cannot hold separate property;

• but a judicially separated wife or a divorcee can.• The High Court had to rule whether the plea of

divorce was genuine or resorted to only to defraud the state, and secondly, whether a woman who is divorced according to the rules of her personal law is entitled to the same benefits as a woman who is separated or divorced through a court decree.

Indian cases• The Court ruled that the mode of triple divorce, giving

unbridled power to the husband to divorce his wife at will, cannot be deemed operative as it has the effect of perpetuating discrimination on the ground of sex, i.e., male authoritarianism.

• The Court further opined that since the practice of triple talaq denigrates women, it is in violation of the Indian Constitution.

• The Court has attempted to force a re-union between the ex-husband and his divorced wife without their free consents.

Indian Cases

• Other conditions laid down by Indian Courts are that triple talaq is that talaq must be ‘for a reasonable cause’ (Jiauddin Ahmed v. Anwara Begum (1981)

• 2. talaq must be preceded by ‘attempts at reconciliation’ by the nominees of the spouses and

• 3. it ‘may be effected’ if the said attempts fail.

Indian Cases

• However, such reforms should be brought by the legislators and not through judicial law making or judicial activism.

• The Indian courts have attempted a rewriting of Islamic law unknown to the overwhelming majority of Muslim jurists.

Conclusions

• Many Muslim States have adopted the opinion of Ibn Taymiyyah regarding triple talaq, i.e. triple talaq in one session amount to one.

• S.7 of the MFLO has various flaws as many of its provisions are against Islamic law

• The S C held in the Gardezi case that failure to give notice of talaq amounts to revocation.

• It was overruled by Kaneez Fatima• The Farah Naz case has ignored Kaneez Fatima

Conclusions

• Indian High Courts have adopted the position of Ibn Taymiyyah

• They have also ruled that talaq must be for a just cause and must be preceded by an attempt at reconciliation

• The ‘just cause’ condition has no basis in Islamic law

END

Thank YouQ & A

Dr. Muhammad [email protected]

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