The Quranic Procedure of Talaq
By A.Faizur Rahman
In the article Divorce a two-way street in Muslim law (June 5, The New Indian Express) Mr. Tahir Mahmood succinctly brought out the plight of the Muslim women at the hands of the unscrupulous misinterpreters of the Quranic shariah particularly with respect to their right to divorce. Mr. Mahmood lamented the fact that a Muslim man can render his wife a stranger by one stroke of his tongue as opposed to the deliberately lengthy procedure of khula a women has to undergo to liberate herself from a cruel husband.
Under the present Muslim law the term talaq is exclusively used for divorce proceedings initiated by the husband whereas divorce at the instance of the wife is called khula. But the Quran has nowhere differentiated between talaq and khula. In fact, the word khula finds no mention in the Quran. Even while talking about the right of men to divorce their wives the Quran confers upon the Muslim women rights similar to men as the following verse shows; .and women shall have rights similar to the rights against them, according to what is equitable; ( 2:228)
Therefore, it may not be wrong to deduce from this statement that although the Quran discusses procedure of talaq only for men the law for women is the same. Moreover, as marriage in Islam (according to 4:21) is a solemn contract (meesaaqan ghaleeza) both parties have equal rights to revoke this covenant in accordance with the Quranic procedure if the other party breaches it. Also, as the Quran is based on principles of natural justice there is no question of granting legal superiority to men on any issue including divorce. In this context, it becomes imperative to look at the procedure of divorce as explained in the Quran to have a better understanding of marital rights in Islam.
Four steps before the first talaq
(As laid down in 4: 34-35)
As a first step, when there is a marital discord, the Quran advices the husband to reason out (izu hunna) with his wife through discussions. If differences persist, then as a next step, the parties are asked to sexually distance themselves (wahjuru hunna) from each other in the hope that this temporary physical separation may encourage them to unite.
And if even this fails, the husband is instructed, as a third step, to once again explain (wazribu hunna) to his wife the seriousness of the situation and try to bring about a reconciliation. In pursuance of wazribu hunna, the husband shall explain to his wife that if they do not resolve their differences soon enough, their dispute may go beyond the confines of their house and become common knowledge which may not be in the interest of both parties. This would be true because, if the dispute still remains unresolved, as a fourth step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution.
(As laid down in 2:228-232 & 65:1-4)
It is only after the failure of the aforementioned four attempts at reconciliation that the Quran allows the first talaq to be pronounced followed by a waiting period called the iddah. Not more than two divorces can be pronounced within this period, the duration of which is three monthly courses (2:228-229). For women who have passed the age of menstruation the period of iddah is three months and in the case of pregnant women it is till the termination of pregnancy (65:4).
And if the parties are unable to unite during the period of iddah as envisaged by verse 2:228, the final irrevocable talaq can be pronounced, but only after the expiry of the iddah (2:231). Once the final talaq has been invoked the marital bond is severed and the parties cease to be of any relation to each other. However, even after the period of iddah has lapsed, the Quran offers the contending parties a chance to reunite, provided the final talaq has not been pronounced. It says, When you divorce women and they complete their term (iddah), do not prevent them from marrying their husbands if they mutually agree on equitable terms (2:232). In other words, after the expiry of iddah, as per verses 2:231 & 232, the parties are given the options of remarriage and permanent separation- the separation being the third and the final irrevocable talaq to be pronounced in the presence of two witnesses (65:2).
Thus, it can be summarised from the above discussion that after four serious attempts at reconciliation a Muslim husband is permitted to divorce his wife once or twice within the period of iddah to resume conjugal relations without having to undergo the procedure of remarriage. After the expiry of iddah he can either re-contract the marriage on fresh and mutually agreeable terms or irrevocably divorce her by pronouncing the third and the final talaq. It is understood here that the woman cannot be left hanging without either being united with her husband or irrevocably divorced. The parties have to decide one way or the other within a reasonable period of time. This is clearly implied in the verse 2:231 which says but do not take them back to hurt them or to take undue advantage. If anyone does this he wrongs himself.
However, to emphasise the sanctity of the marriage tie and the enormity of breaking it for frivolous reasons, the Quran warns that once the parties choose to separate after the expiry of the iddah, they cannot entertain hopes of marrying again unless the wife takes another husband and he divorces her (2:230). It is understood here that a divorce may result only if the new husband has serious differences with his wife, and in the rare event of such differences cropping up, he is required to follow the Quranic procedure of divorce as discussed above.
Step by step summary of the Qur’anic procedure of talaq
1. Husband and wife to reason out through dialogue izu hunna
2. Temporary physical separation wahjuru hunna
3. More convincing to effect reconciliation wazribu hunna
5. First talaq followed by iddah
6. Options within iddah - 2nd talaq or resumption of conjugal relations without re-marriage
7. Options after iddah - Re-marriage or final separation through third talaq.
It is therefore clear that the concept of instant triple talaq is alien to Islam as it goes against the very spirit of the procedure of divorce laid down in the Quran. Even the Prophet when he was informed about a man who gave three divorces at a time was so enraged that he said, Are you playing with the Book of Allah who is Great and Glorious while I am still amongst you?(Mishkat-ul-Masabih).
Furthermore, in the absence of any initiative from Muslim
theologians to abolish it, courts in
(The writer is a Chennai based peace activist and a student of comparative religion. He can be reached at firstname.lastname@example.org)
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