By M.J. Aslam
On 22-08-2017, the Supreme Court of India in Shayara Bano v. Union of India in the ratio of 3:2 declared “Triple Talaq” or “Talaq e Biddah” under the Muslim Personal Law as manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation prescribed under the Quran so as to save it. I had way back in 2007 authored a book tiled “The Justification & Rationale of Muslim Divorce Law” that was published by Karnataka Law Journal publications, sister concern of Pulliani & Pulliani, Bangalore, India. Almost all those issues that have been discussed in the judgement of the Supreme Court have had been dealt with by me with all sincerity. In the preface to the book , I had drawn the attention of the Muslim Ulema of India towards Talaq e Biddah that has been damaging the pristine pure picture and procedure of Talaq as commendated in the Quran and Sunnah. I quote here an excerpt from the Preface of the book that will clear what is was its object: “Divorce is one of those subjects of Islamic Law about which a lot of confusion prevails both among the Muslims and the non-Muslims. A large number of the Muslims in general as a whole & especially in India are not well versed with the procedure of Talaq which results in flagrant violations of the procedure for pronouncement of Talaq as laid down in the Holy Quran & Sunnah. This deviation from the actual procedure of divorce has not only obscured the same but in its place innovated form of Talaq (Triple Divorce) has emerged which is causing suffering to many Muslim women. A number of books have been written on the Muslim law of Divorce but the present one is probably the first of its kind for its uniqueness of having dealt with the subject from its conceptual and procedural aspects. The book has been written with an earnest desire to remove some of the cobwebs from the Islamic subject of divorce that have blurred it. In the preparation of the book both traditional and non traditional materials have been used. The position of subject of divorce (Talaq) as practiced & applied in India has not undergone any significant changes except that in the recent years in the backdrop of Shabanu Case (AIR 1986 SC 947) the Parliament passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 and now the Indian courts (Shamim Ara Case
(AIR 2002 SC 3556) [[High Courts in India]] tend to set the trend in conformity with the Quranic injunctions so that all possible measures are adopted for bringing reconciliation between the spouses before the Muslim husband pronounces Talaq and before Talaq is declared valid in the eyes of Muslim Law. The book is an original piece of research work which not only deals with the concept & procedure of Talaq but also with countervailing powers of Muslim wife’s powers of divorce in Islam such as Khula,
Tafwid, Faskh, Lian, Zihar & Ila. It also deals with different theories of divorce and the reasons behind placing the power of divorce (Talaq) directly in the hands of the Muslim husbands. How far the author of this humble work has succeeded in projecting the true picture of the law of divorce in Islam in consonance with the Holy Quran and the Holy Sunnah is for the readers to decide. And, this book will also acquaint the Muslim brethren about the procedure of Talaq in the Quran & the Sunnah. It also attempts to make an appeal to the Ulema (Doctors of Islamic Law & Theology) to seriously
consider the problems arising out of violations of the pristine pure law of Islamic divorce and come out with solutions to the same [Triple Talaq in a single sitting] as has been done in other Muslim countries……..”.
Incidentally, the foreword to the book has been written by Mr. Justice S Abdul Nazeer , the then Judge Karnataka High Court, now Judge Supreme Court of India. Mr. Justice S Abdul Nazeer has been one of the five Judges who constituted Constitution Bench that heard and decided Shayara Bano v. Union of India on 22-08-2017. I would like to quote from his foreword to the book that will further elaborate the theme of the book that has now been sealed and approved ( indirectly) by this judgement of the Supreme Court. He has written: ” The Muslim Law of Divorce is one of those subjects of the Personal
Laws in India about which a lot has been said & written already and the process goes on even today. While the law has been brought in line with the Quranic mandates in most of the Muslim world, nothing substantial has been done in our country to remedy the ills that harm its basic picture.
……….. This book spells out three things:
(i) that the Muslim Law of Divorce stands for modern breakdown theory of divorce.
(ii) that there are scientific & other reasons for placing the power of divorce in the hands of Muslim husband & that the Muslim wife has got countervailing powers of divorce in Islam.
(iii) that innovated form of divorce has damaged the very basic procedure of divorce in Islam & that the Ulema & votaries of the Shariah law should address the problem of Triple Divorce to restore the pristine purity of procedure of Talaq to end long sufferings of many Muslim women in India.
The book is an extremely good attempt by the author to remove misconceptions in the minds of many people regarding the Muslim Divorce Law. The book has its basis mainly on traditional material in that the Holy Quran, the Sunnah & authentic books of great Muslim jurists have been vastly relied upon. The non-traditional material & some relevant case law on the subject have also been used in preparation of this book. The books of eminent authors on human anatomy, physiology & psychology also find a mention in this scholarly work.
A large number of texts have been written in India on Muslim Law of Divorce but the present book outshines for elegantly touching not upon the subtleties but the surmount issues related to the topic. I have no hesitation in observing that this book is a timely addition to the texts on Muslim Law of Divorce & it will be definitely a valuable addition to the libraries of the scholars & lawyers who have a quest for knowledge & who deal with the subject of Personal Laws in India. I may further say that any person after reading this treatise will be free of many doubts in his mind regarding the subject of Muslim divorce law.
I hope that the industry put in by the author & publishers in bring out this small but a masterly piece of literature on the Muslim Law of Divorce will not go waste and that the appeal made through this book to the Muslim Scholars of India to restore the pristine purity to the Muslim Divorce Law of Talaq by remedying its innovated forms will not go unheard”.
Mr. Justice S Abdul Nazeer