Speaking Tree in TOI Edit Page | Jan. 02, 2018
In Islam, there is a prescribed procedure for divorce. First, divorce is considered extremely undesirable. But, if a couple seek to divorce, they have to follow a prescribed course. That is, the husband shall utter the word 'talaq' on three separate occasions to his wife over a period of three months. The intervening period between each utterance of 'talaq' is meant for reconciliation. If, after the end of the third month, the husband finally utters the word 'talaq', then, the two will be divorced.
In the time of the Prophet and the first caliph, Abu Bakr, certain individuals would divorce their wives in one sitting by uttering the word 'talaq' three times, usually in a burst of anger. This is why the Prophet and Abu Bakr would regard the uttering of instant triple talaq as only one talaq, and they did not, therefore, finalise the divorce in such cases.
But the practice of pronouncing 'talaq' in one instance continued till the time of the second caliph, Umar Faruq, who took another decision - he declared that pronouncing 'talaq' in one sitting would be considered final and the couple would be divorced. But, he would flog any man who said 'talaq' three times instantly, as deterrence.
Muftis who came after Umar followed the course set by him. They began to deem the pronouncing of 'talaq' three times in one sitting as irrevocable. Then, in the 13th century, Islamic scholar Ibn Taymiyyah, opined that uttering 'talaq' three times on a single occasion should not be taken as final; it must be regarded as the first step in divorce proceedings. Except for the Salafi scholars, the ulema, or Islamic scholars, did not accept Ibn Taymiyyah's fatwa. Hence muftis continue to issue fatwas according to Umar's precedent. Thus Umar's decision on divorce came to be looked upon as ijma, or the consensus of the Muslim community, that cannot be changed.
Only the Salafi group of scholars follows Ibn Taymiyyah's opinion, while others follow Umar's precedent. In my view, it is wrong to consider Umar's decision as ijma. What Umar did was simply in the nature of an executive order given by a caliph, and it should not have been taken as ijma. But scholars of the later period did not accept Ibn Taymiyyah's opinion, as they thought it was at variance with ijma. But, Ibn Taymiyyah's opinion actually only ran counter to the executive order of a caliph and was not against ijma.
Since the community considers giving talaq as a matter of the shariah, Islamic scholars ought to consider Umar's decision as purely the executive order of an individual rather than raise it to the level of ijma. Secondly, to put an end quite conclusively to the practice of triple talaq, the state can take the stand that it will revive and legitimise the Quranic practice of giving talaq over a period of three months and that if anyone goes against this, he will be punished.
In matters of marriage and divorce, which are very sensitive, Muslims listen to the advice of the clergy. Therefore, the government should encourage Islamic scholars to reach an agreement that Ibn Taymiyyah's opinion was right, while Umar's decision was actually his ijtihad, a personal opinion, which may be either right or wrong. Ijtihad is always subject to correction. Because so many women are suffering due to instant triple talaq and the Bill now going to Rajya Sabha, Muslims must not protest in favour of this practice.
