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Analysing 'triple talaq' through the spectrum of reason!
It all depends on approaching an issue with a correct perspective and right reasoning. There are many issues which have led a few sections of Muslims to make wrong use of practices, pushing, thereby the entire Islam and its followers to great shame, blemishes and misunderstandings.

Take for example, the case of jehad which in Islam has its positive meaning of fighting with the inferior self for its purification. But a section of Muslims have taken the negative meaning of cleansing the world of infidels to lead Islam to its earlier state of purification.

During the pre-Islamic period known as the age of jahalat (ignorance/illiteracy) woman had no status and were used as a chattel in a male dominated society. An Arab could marry any number of women and kick them away from his house as per his whims. Though talaq was in vogue for the protection of divorced wife, but no one took recourse to this in order to keep the divorced wives in a state of perpetual torture, suffering and helplessness. For these Arabs, women lived on the sheer pleasure and mercy of men.

Among the most important reforms that Islam under the enlightened leadership of Prophet Mohammed (PHUB) made, was raising the social, marital, and gender status of women in the society. Not only wasthe woman declared as the mother of Ummah, but was also given equal place in all walks of social life.

These kind of sweeping reforms for the feminine gender naturally questioned the inhuman treatment of husbands towards their wives particularly relating to the tradition of talaq and thus followed the various injunctions through different chapters of the Holy Quran that restricted the innumerable number of talaqs used by husbands to three different kinds along with a few conditions and with a significant observation that among all the approved laws of Shariah, talaq, leading to a complete disruption of family life, is the most undesirable and worst of Islamic Laws. It is relevant to note that Islam is the first religion that has made provision for a wife to demand talaq from her spouse which is known as Khulah, if she finds it difficult to live with her husband as is mentioned in the Holy Quran in Chapter-II verse 29.

The first kind of talaq is known as talaq Ahsan (talaq-e-rajayee), or a talaq that keeps the door of reconciliation open during a period of three months following one or three menstruation periods within which the couple may ponder and reconcile to start a further conjugal life.

Secondly there is the talaq Hasan that enables the husband to utter one talaq in two different months in a state of purification after intercourse with his wife and thereafter, the couple may rethink and reconcile together to withdraw from complete separation and again start living together to make a happy marital life. This is also known as talaq-e-rajayee. After the completion of three months, both these categories of talaq become talaq-e-Bayeen which means the divorce is complete. If, in any case, a husband desires to reconcile with his divorced wife, he has to clear the dower dues, and enter into a fresh Nikah as per Islamic Law.

The third kind of talaq is known as talaq-e-Bidayat or instant (three talaqs in one instant) which becomes final and closes all the doors of reconciliation. Here it may be noted that to utter three talaqs in one instant or in one sitting is also considered a sin according to a Hadith. The implications of the three talaqs in one instant has been stated in sura Baquar in the Holy Quran (Chapter-II Verse 230). In this type of talaq which is known as talaq-e-Mugallaza reconciliation or reunion is possible only when the divorcee undergoes the process of Halalah.

The Supreme Court in its judgment on 22nd August 2017 had chiefly focused on triple talaq and by a majority of 3:2, had held this practice of talaq-e-Bidayat or triple talaq as unconstitutional which was therefore set aside.

This verdict of the Apex Court on triple talaq has been received with mixed feelings but the real implications of the judgment has not been properly understood by a section of the Muslim community. Although most of the scholars and intellectual thinkers like Ifran Habib, Ram Chandra Guha, Wahajat Habibullah, SY Qureshi and others have welcomed the verdict, a majority of Indian Muslims think that it has interfered with the Sharia or has hit the fundamental rights of Muslims ensured in the Muslim Personal Law.

An impassioned and objective analysis will reveal that it is a narrow approach to the whole issue and needs to be corrected in order to re-orient our stand in a country like India and take the verdict in a correct spirit. In fact, there are many positive points in the verdict which have, in a way, given strength to our stand on the matter.

First and foremost, the verdict has not questioned the validity of the practice of talaq in Sharia nor has it touched the different kinds of talaq mentioned therein.

Secondly, the court, particularly the CJI and justice A Nazeer have held that triple talaq is an integral part of Muslim faith which cannot be questioned.

Thirdly, in his brilliant analysis of the verdict, Prof Faizan Mustafa, the Vice-Chancellor of Nalsar University, correctly pointed out that "for the first time in Indian Judicial History, freedom of religion subject to restriction in articles 25 and 26 has been held to be absolute". He further quotes the CJI who holds "that personal law is part of freedom of religion which courts are duty bound to protect". According to the CJI "Personal Law is beyond judicial scrutiny" and since justice Kurian endorses this view, this part of judgment becomes majority view and binding in future.

(to be concluded)

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of merinews.com. In case you have a opposing view, please click here to share the same in the comments section.
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