Is Talaq Given in Extreme Anger or in an Inebriated Condition Valid?
Dr Radhasyam Brahmachari
Talaq is a Talaq:
It has been mentioned in the previous article http://www.archive2012.faithfreedom.org/wordpress/?p=9467 that in 2001, a full Bench of the Bombay High Court ruled – “Mere pronouncement of talaq by the husband or merely declaring his intentions or his act of having pronounced the talaq is not sufficient and does not meet the requirement of law.” It should be mentioned here that, even the Muslim ulamas are also divided in their opinion on this point. According to a conservative school, including the followers of Imam Abu Hanifa, “a talaq is a talaq”. It is valid irrespective of whether arbitration and reconciliation have been sought. These schools maintain that, utterance of the word ‘talaq’ thrice is sufficient for a Muslim man to divorce his wife. It should be mentioned that, M Hidayatullah, in his “Principles of Mehamedan Law”, had expressed exactly the same view and wrote, “As soon as the husband pronounces the word ‘talaq’ thrice, the marriage gets dissolved irrespective of time and place, and divorce becomes operative from that very moment.”(Tripathy Publishers, 1980, p-324)
These schools further hold that triple-talaq conveyed to one’s wife on telephone, or by e-mail and even via SMS, is valid. So, mufti Salim Akhtar, who runs a madrassa in Mumbai, says, “Such talaqs are valid if the husband confirms in person that he had pronounced them.” He also considers a talaq valid, if the husband pronounces triple talaq even in the point of rage or in abnormal or intoxicated state, and even if in a dream. In June 2005, Raza Ali Khan, an Indian vocalist, divorced his German wife by posting her a telegram and he then remarried. In March 2006, a couple Aftab Ansari and Sohela Bibi, residing in Jalpaiguri, West Bengal,were ordered by the local imam to live separately because Aftab had allegedly uttered the word ‘talaq’ thrice in dream.
But some other schools maintain a different view. “Ideally there should be elders from both sides as arbitrators and they must try to resolve the dispute between the couple. Talaq should be uttered only after the reconciliation has been exhausted. But if the procedure is not followed, it does not mean that the talaq becomes invalid”, said Mufti Abdul Ahad Falani, a qazi (judge) of the All India Muslim Personal Law Board (AIMPLB). It has been mentioned that while the Muslim clerics and ulamas discuss the matter in presence of non-Muslim and civilized audience, they denounce talaq-e-bidat (or triple talaq) in which the husband divorces his wife by uttering the word ‘talaq’ in one sitting. On the contrary, they try to highlight talaq-e-ehsan, in which a couple is given three months time to separate if they wish. The separation period gives the couple an opportunity to patch up their differences.
Renowned Muslim scholar and an apologist Asghar Ali tries his best to convince that the Koran does not approve talaq-e-bidat and said that this method (i.e. talaq-e-ehsan) alone should be valid. He wants the Shariah courts in India to follow the said Koranic injunction and allow talaq-e-ehsan as the valid decree of divorce. But the arguments of Asghar Ali do not seem to be tenable as we have seen that the Koran in this regard says, “Ye may divorce your wives twice; and then either retain them with humanity or dismiss them with kindness ….” (2:229). “But if the husband divorces her a third time, she shall not be lawful for him, until she marries another husband. But if he also divorce her, it shall be no crime in them if they return to each other again, if they think they can observe the ordinance of Allah” (2:230).
In these verses of Koran, Allah does not mention that the talaq should be served through a period of three months. On the contrary, these verses support the view of M Hidayatullah. However, many Islamic countries, including Pakistan, Tunisia and Indonesia, follow talaq-e-ehsan and have banned triple talaq or talaq-e-bidat. In some Islamic countries, a divorce is accepted only when it is supported by a legal decree.
But in India, such discussions are only rhetoric, as the Government of India, run by Muslim appeasing political parties, is afraid to bring any modification in the ongoing talaq-e-bidat, for fear of inviting annoyance of the Muslim mullahs and clerics and consequent loss of their votes. However, as has been mentioned earlier, Indian judiciary often follow the arguments against talaq-e-bidat to provide relief to the destitute Muslim women, who have been thrown into utmost misery by talaq-e-bidat.
For example, advocate Nilofar Akhtar, who has been fighting for equal rights for Muslim women in matters of divorce for over a decade, says, “Muslim men have manipulated the law and legitimized a unilateral decision of divorce. The Koran wants one witness from each side before the talaq is pronounced.” But in practice, we have seen how Shoaib Malik has smoothly divorced his ex-wife Ayesha by saying “talaq, talaq talaq” over a cell-phone, to the satisfaction of the Muslam clerics and ulamas. None of them, who assert that a 3-month period of arbitration should precede the pronouncement of talaq, came forward to declare the talaq between Shoaib and Ayesha was illegal or unlawful.
Talaq in Abnormal or Inebriated Condition:
From the above discussions, it becomes evident that, so far the Muslim community of India is concerned, triple talaq, or talaq-e-bidat, or Instant talaq is an established institution. Furthermore, it is at par with the rule laid down by Allah through the Koranic verses (2:229) and (2:230); and the view expressed by M Hidayatullah in his “Principles of Mehamedan Law”. It would be relevant here to mention that this institution of instant talaq is not an invention Islam but it was prevalent in the pre-Islamic Arabia and Allah or Prophet Muhammad introduced it among the Muslims without any modification for fear of earning a displeasure of the pastoral and nomadic Bedouins. In fact, in pre-Islamic Arabia, women were no better than sex-slaves. Well off Arabs used to marry so many women and create big harems. For example, there were 16 wives in the harem of Prophet’s friend Abu Bakr in Mecca. Moreover, they used to let their wives on hire and exchange them with one another.
An example may be presented here in support of the above.view about instant talaq. A follower of the Prophet, called Abdur Rahman, came to Medina as a muhajir and took shelter in the house of his friend called Saad bin Rabi (an Ansar). At that time, Abdur Rahman had 16 wives in his Meccan harem. Saad considered it his duty so that his friend Abdur Rahman might not suffer for want of a woman. So after dinner, Saad called his two wives and asked Abdur Rahman to select one of them. As soon as he selected one by pointing his finger, Saad divorced her by uttering talaq thrice and ordered her to sleep with Abdur Rahman. From the above narrations, it is not difficult for the reader to understand that, uttering the word talaq three times is more than sufficient for a divorce to be operative and the question like whether the husband utters talaq in normal or inebriated condition becomes irrelevant.
Talaq in an Inebriated Condition is Equally Valid:
A report appeared in the December 22, 2006, edition of the Ananda Bazar Patrika, a Kolkata based leading Bengali daily, said, “A divorce pronounced by a Muslim man in an inebriated condition has come to haunt him”, as he has been forced to live away from his wife and children by the villagers led by the local orthodox leaders. Mohammad Akhtar (55) was forcibly separated from his wife Sakina Khatoon and their 3 children in Parbodhi village near Hajipur in the Vaishali district of Bihar, nearly 35 Km away from Patna. Compelled to adhere to the interpretation of the Islamic law of divorce by a local religious group, Akhtar was upset and frustrated for being separated.
As a matter of fact, Akhtar, a tailor by profession, shouted “talaq, talaq, talaq” during a domestic quarrel on December 20, 2006, when he was in a drunken state. “I frankly and honestly admit that, even if I pronounced ‘talaq’ thrice to my wife, it was in a drunken condition. I hardly recall that I did it”, he said to his neighbours, who overheard his uttering talaq thrice and forced him to live separately. Sakina said that she was willing to live with Akhtar, but the villagers were forcing her to live separately. Maulana Inamul Haque, a religious leader of the village, said, “Alcohol is prohibited in Islam. If someone consumes it and then pronounces talaq three times, it will be treated as a divorce.”
In such a situation, the verse (2:230), that says “But if the husband divorces her a third time, she shall not be lawful for him, until she marries another husband. But if he also divorces her, it shall be no crime in them if they return to each other again, if they think they can observe the ordinance of Allah”, becomes operative. So, if Sakina wanted to reunite with her husband again, she, according to the said Koranic verse (2:230), should undergo the procedure called halala, or to marry another man and obtain divorce from him. But Akhtar opposed the process vehemently and said, “I will commit suicide if this happens. I am against Sakina’s marriage with someone else before reuniting with me.”
While commenting on this dirty Islamic procedure, Sir W Muir, the celebrated biographer of the Prophet, writes, “However unjust or injurious the action, how much soever the result of passion or caprice, however it may affect the interests not only of an innocent wife, but also of her innocent children, however desirous the husband may be of undoing the wrong, – the decision cannot be recalled; the divorced wife can return to her husband but on one condition, and that is that she shall first be married to another man, and after cohabitation (to the fullest ectent) be again divorced” (The Life of Mahomet, Voice of India, 1992, p-337).
Such a temporary marriage is also called Hilla Marriage and the man who marries the divorced woman is called a Mostahel. In general, in Muslim society, a man from the street is engaged to act as a mostahel, and sleep with the divorced woman for a night, of course by exchange of cash. Sometimes, it happens that husband appointed one of his most trusted friends or a trusted kin to act as a mostahel, but in the morning he, instead of returning the woman to her husband, took her to his house as his third or fourth wife.
To narrate the inherent ugliness of the procedure called halala, Sir W Muir further writes, “Many lovers or gallants cause less shame to a woman than one Mostahel. …. In order to regain his wife, a man hires (at not considerable rate) some peasants, whom he choses from the ugliest (so that he may not leave a permanent impression on the woman) in the streets. …A case is mentioned by tradition in which Mohammad himself insisted on co-habitation with another husband, before married life could be retuened to, and in language which one may hope, prurient tradition has fabricated for him. … It must not be forgotten that, all the immorality of speech and action connected with this shameful institution and the outrage done to the female virtue (not necessarily for any fault of the wretched wife, but the passion and thoughtlessness of the husband himself) has solely out of the verse (2:230) of the Koran quoted above” (W Muir, ibid, p-337).
The tradition, which W Muir indirectly mentioned, is Sahih Muslim-3354. This hadith narrates that, one day a woman met Muhammad and said that she intends to get a quick divorce from her second husband, so that she might reunite with her original husband in no time. Then the Prophet told her, “You cannot do it. You should taste his sweetness and he should taste your sweetness to the fullest extent and then only you may seek a divorce from him.”
The Story of Jahiruddin Mollah and Sakina Bibi:
According to a report appeared in the June 29, 2007, edition of the Ananda Bazar Patrika, a couple Jahiruddin Mollah and Sakina Bibi, residing at Bagpara, under the police station of Maheshiala, in the southern fringe of Kolkata, have lodged a complaint with the police allegeing that they have been ostracized because they were living together after a talaq.
The couple also sought police protection saying that they were being threatened by the neighbours. The neighbours, however, denied the allegations. Police said that Jahiruddin (24), a tailor, and Sakina Bibi were married in 2000, and they have two sons and a daughter.
On August 21, 2004, Jahiruddin, while he was in a drunken state, uttered “talaq, talaq, talaq” to Sakina, after a brief domestic quarrel. The next day, he visited Maulana Mohammad Yusuf Mondal, the imam of the Ashuti Bagpara Jam-e-Masjid, and narrated to him what happened in the previous evening. The Maulana asked him to respect the Muslim Personal Law and live separately. “Everyone living in the society must follow laws”, the imam reportedly told Jahiruddin. He explained the Koranic Verse (2:230) to him and said, “If you want to live with your wife, she must first be married to another man. If she gets a talaq from him, only then you can re-marry her after three months of iddat.”
But the couple continued to live together defying the directive of the imam. Though, there are differences of opinion among the Muslims regarding talaq given by a husband in an intoxicated condition, a good section of the neighbours became angry upon the couple for disobeying the words of the imam. “The family was living under constant threat from the neighbours. Jahiruddin and Sakina were forced to take shelter at a relative’s house for nearly two years. Finally they returned to Bagpara a few months ago”, said the police. Samsuddin Baig, a local political leader, said, “They should have abide by the imam’s words. They cannot live together after a talaq.”
While commenting on the developments, S N Gupta, the superintendant of police, South 24 Pargnas, said, “The local police station has been asked to keep a watch on the situation and, if needed, provide protection to the family. The local grocer is not allowing them to enter the shop and the man is not allowed to work. We are trying to help the family.” While talking to the reporters, Sakina Bibi is reported to have said, “The law of Allah and my neighbours are trying to turn me into a prostitute.”
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