Private Laws are not known to have been existed in religions other than Islam. Generally, Laws are created and modified as on times. There are no hard and fast rules instructing a person to strictly follow the laws in his religion. Whereas, Islamic Shariat (Laws), even after 1430 years of revelation, is still pursued. It’s compulsory for Muslims to abide by the Shariat Laws.
Even before 1400 years, property rights for women, right to divorce her husband, right to choose her would-be, right to bear witness – all these freedom of rights were given to women only in Islam.
According to Islam, Marriage is considered as a legal contract. Only in the situation where there is no other alternative option to find solution for the dispute between couples, the method for legal separation is chosen in an Islamic manner.
Divorce Method: With reference to the divorce separation between husband and wife The Almighty says in Al-Quran “And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?” (4:21)
The Holy Book Al-Quran gives so much importance on this Issue that even The Almighty questions on such undesirable act of separation between life partners.
“Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard. But those [wives] from whom you fear arrogance – [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.” – (4:34)
Furthermore Al-Quran also advises that
“And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]” – (4:35)
Divorce is the most efficient method (Ahsan). In case of situation, where the life partners unable to live together, then in presence of two witnesses; husband can declare “Talaq” to his wife. It’s enough to pronounce “Talaq” once but during this time the wife should not be in menstrual period (in the sense she should be clean).
From the declaration time of “Talaq”, the wife should go through the process of “Iddah” (Waiting period) for three menstrual periods (approximately three and a half month) at her husband’s residence at his expense. During this period, if they both happened to have sexual relationship and if the husband wishes, he can redeem his marital relationship.
During this period of “Iddah”, the wife shouldn’t remarry anyone else. During this “Iddah” period, if husband and wife didn’t have sexual relationship or if the husband doesn’t redeem the marital relationship, it is to be assumed that the process of “Talaq” is executed.
After that, if the husband wants to take back his wife, then he can do so by giving her “Mahr” (Dower). But it’s compulsory that he should obtain willingness from his wife to do so. On the other hand, if the wife wish to marry someone else it is up to her choice.
Suppose, during the “Iddah” period, if the husband ceases the divorce and takes back his wife and then again if disputes arises among them he may declare “Talaq”. Conditionally, she needs to go through the same process of “Iddah”. This means the same rules apply for the second “Talaq” also.
Incase, even during the second “Iddah” period, if the husband wish to cease “Talaq” and takes back his wife again, (And God forbid) if again dispute arises between them, then the third time the husband should declare “Talaq” and make her to go through the “Iddah” procedure again.
Obviously, the same law applies for the third “Talaq” too. But, after declaring “Talaq” for the third time, the husband obviously loses the privilege of redeeming the wedlock. Unless and until she marries another person and then get divorce from him, he cannot remarry her.
Talaq-ul-Mubara: (Consensual): Incase if husband and wife believe that no longer they cannot continue their matrimonial relationship and if they decide to get apart they can do it in a beautiful manner.
Talaq-ul-Khula: (Woman seeking divorce from her husband) Islam has given ‘Women Rights’ to seek divorce from her husband. If a woman doesn’t like to continue her marital relations with her husband or if the husband’s moral behavior is not proper and if she decides to split up she can freely approach the Qazi or the Jama’at seeking divorce from her husband.
If the husband refuses to give divorce the same administration can break up their wedlock and declare divorce. Even for this, she has to undergo “Iddah” procedure. The wife has to repay the “Mahr” (Dower) which she received earlier.
Questions may be raised such as “How could it be equal rights for a man to give divorce and a woman to ask for a divorce?. People may ask “Is this not injustice to give less rights to woman which seems patriarchy?”
No need to say, this world is dominated by Male creation and has remained physically strong from times unknown. Naturally, it’s not practical for a woman (wife) to declare divorce and expel him away from her life so easily. In nature, a man can harm her, retaliate and take revenge against her. In this case, it may end up in dangerous consequence also.
Taking all this into consideration and valuing the social contribution with the greatest possible protection, Islam has offered legal rights to women to demand divorce. If the divorce is materialized through Jama’at, she automatically entitles the protection of the Jama’at.
Moreover, If a husband wants to divorce his wife, he has to call for the mediators, declare “Talaq” and required to wait for a period of three months. On the contrary if a wife demands divorce she will get in no time. Easily, we may come to a conclusion that in Islam more rights are given to women than men.
“Fasakh” (Order for dissolution of Marriage) :
If the whereabouts of the husband have not been known
if the husband has been insane for a period of two years,
if the husband has been sentenced to imprisonment for a period of three years or more
Likewise if a wife engage in immoral act and if it’s proved
The order for dissolution of Marriage can be claimed through the Jama’at.
For example: if a husband’s whereabouts is not able to be traced for more than four years, the wife can seek the help of Jama’at to file for the dissolution of marriage and they can accordingly cancel the Marriage contract.
Similarly, if a wife indulges in immoral act and if her husband comes to know the adultery act, it has to be proved with four witnesses. Incase, if there are no witnesses, the husband required to swear four times in the name of Allah saying “And thus will cause detriment to myself”. Then the concerned administration can terminate the Marriage contract according to Shariat Law
Talaq-al-Bidah: “Talaq, Talaq, Talaq” or “Triple Talaq” as it is made propaganda, is neither Prophet’s teaching nor followed during the reign of his first companion. This came into practice after that period. That’s why it is named as “Innovated Talaq”.
People assume that divorce procedure is executed just by saying “Talaq” triple times. There are Islamic scholars who also say that even if a husband proclaims “Talaq” this way, it will be considered as only said once. For all marital break-up this method is not followed.
No husband witnessing a wife gone astray by adultery would take back his wife. Only in such abnormal situation this kind of “Talaq” exercise is accepted.
It is not acceptable to apply this Triple ‘Talaq’ method in disputes which can be rectified. This is considered as sin and vehemently condemned by almost all Islamic scholars.
If someone abuses a law, he must be punished legally. Instead, how it could be a proper way to abolish or ban the law itself?
Muslims believe that no one can pinpoint fault or blame their Shariat Law. It’s their faith too.
It’s ridiculous to witness some people demanding “Uniform Civil Code” to bring into force based on Triple “Talaq”.
When there is no equality to fetch water in a common well in this prevailing caste system; when there exists different graveyards for high castes and low castes; when killings takes place in the name of castes, let me ask you where does the equality comes from?
Article in Tamil written by : MGK Nizamuddin & Translated by : Abdul Qaiyum
தினமணி பத்திரிக்கையில் தமிழில் வெளிவந்த கட்டுரை