DURING the reign of the second Khalifa of Islam, Hazrat Umar, legend has it that there was a sudden spurt of talaqs in Arabia. Men were divorcing their wives without assigning any rhyme or reason. Angered by the inhuman manner in which people were interpreting the Koran, the Khalifa ordered that any man found giving his wife talaq should have his head severed. Allama Samsani of Beirut has cited this in Falsafa Shariat-ul-Islam. Triple, instantaneous, verbal talaq, in any event, is repugnant to the spirit of Islam. It has been called talaq-e-bidat which means `talaq of the wrong innovation'.
The clear instruction in the Koran is as follows: At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa. Surah Al Baqr, 226. This means that talaq must be pronounced twice (in two months) and then (a woman) must either be retained in honour or released in kindness. Further it says, it is not lawful for you that you take from women anything which you have given them.
The commandment is clear. Talaq has to be pronounced twice with an intervening period in which to rethink, reconsider and reconcile. For this, the important instruction is to take time, and, once again, take more time, during which period there should be interlocutors from both sides to try to mediate the conflict. After the second talaq, there is still an intervening period, during which the husband has to think about the two choices available to him; either reconcile with his wife in an honourable way, or pronounce the third (irrevocable) talaq with kindness and allow her to go. At the end of the third interval, he must exercise this choice. But then follows the absolute command. If he decides to let her go, he must do so `without taking from the woman anything you have given her'. The spirit of the Koran vis-a-vis the process of divorce and the divorced woman, as reflected in this command to the man, is imbued with sensitivity towards gender.
The same command is repeated in Section 241 of the same Surah as a reminder to Muslims that in matters of talaq (as in other matters) women must be treated with utmost kindness.
Wa lil-mutallaqati mataa-um bil maruf. Haqqan `alal muttaqiin. (And remember for women who have been divorced, they should treated with ihsaan and suluk (kindness and grace). For all pious men this is the duty). The Koran is replete with passages for proper and egalitarian treatment of women. Muslims are commanded never to create impediments if a divorced woman wishes to contract another marriage. If a Muslim wants to exchange one wife for another he is commanded not to take anything from her, even if he has given her a quintaar, meaning, pile of gold (Surah Nisa, Section 20). In the same Surah, Muslims are commanded to give the wife's mehr with good grace at the time of marriage itself, unless she decides to defer it of her own free will.
Talaq is permissible in the Koran only on condition that there is a complete breakdown of marriage. Parting of ways must be graceful, and utmost care is taken to inflict no suffering on the woman. The common practice of impulsively uttering talaq thrice in a go, or writing talaq thrice on a postcard, or hiring a qazi to affix his signature on a scrap of paper, is totally anti-Islamic. No cleric, regardless from which school of Fiqah, can ever condone this form of talaq.
Just as the man is permitted talaq, so also is the woman permitted to take khula. In this matter as in all others, women and men have equal rights in Islam. In Surah Al Baqr (Section 228), there are five words which according to Maulana Abul Kalam Azad's explication of the Koran, altered the status of women for all time to come. The words are: Wa la hunna mislullazi alayhinna bil ma`ruuf. This means that (in matters of husn-e-suluk `beauteous treatment') women have the same rights over men as men have over women. In Section 229 of the same Ayat, a woman is permitted to end a tortuous married life by taking khula although she has to go through the Qazi, unlike the man who does not have to fulfil this condition.
This condition was stipulated, once again, to protect the woman because of the possibility of a patriarchal backlash. Maulana Azad, in his explication, states that if the woman for good reasons takes khula, and if she forfeits part of her mehr of her own free will, it is permissible. The implication here is startling in view of the common practice. Most women are brainwashed to believe that for a virtuous wife, it is incumbent to forfeit her mehr altogether. This they do without understanding their rights; and when the husband pronounces talaq, he can throw her out minus the mandatory mehr, however small. But the clear instruction in Islam is that even if a wife takes divorce, she is entitled to mehr; she may of her own free will give up part of it as bargain for her freedom. As commonly practised, however, it is essential for the woman to forsake her mehr if she takes khula.
The fact of the matter is that we Muslims selectively practice whatever suits our need. We indulge in triple talaq, in polygamy, in dodging mehr and maintenance. We ascribe our actions to our religious sanctions and continuously harp on our religious code. But we blatantly violate the injunctions of Islam. We pronounce triple talaq without following the commands pertaining to it. We marry again and again without adhering to the commands pertaining to second and subsequent marriage. Thanks to the way we practice it, Islam is looked upon by the world as the most anti-gender religion. For this perception, it is we Muslims who are to be blamed. It is time we applied the corrective to our own selves and stop using religion as an excuse for our misdemeanours.
(The author is a writer, founder of the Muslim Women's Forum and former member, National Commission for Women).