Transcript Reforms in Triple Talaq under Islamic Law and

Reforms in Triple Talaq under Islamic
Law and Personal Laws of Muslim
States
Dr. Muhammad Munir
[email protected]
http://ssrn.com/author=1633078
Reforms in Triple Talaq: Outline
• Is legislation in Muslim States based on the
opinion of jamhur or Ibn Taymiyyah?
• Are three talaq in one phrase or three
different phrases in one sitting or in one tuhr
counted as three or one?
• What reforms are carried out in different
Muslim Countries?
• What is the law of talaq in Pakistan?
• How is it interpreted by the Courts?
Reforms in Triple Talaq
• In 1929: Egyptian law provided that a divorce
accompanied by a number expressly or
impliedly shall count only as a single divorce
and such a divorce shall be revocable except
when three talaqs are given one in each tuhr.
Reforms in Triple talaq
• 1935: The Sudanese law of 1935 provides
that, all divorces shall be revocable by the
husband except a third divorce, a divorce
before consummation of marriage and a
divorce for consideration.
Reforms in triple talaq
• 1953: The Syrian law of 1953 combined the
provisions of Egyptian and Sudanese law
• It provided that if a divorce is coupled with a
number, expressly or impliedly, not more than
one divorce shall take place and every divorce
shall be revocable except a third divorce, a
divorce before consummation, a divorce with
consideration (khul) and such divorce is stated
in this law to be irrevocable.
Reforms in triple talaq
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1957 and 1958 of Morocco.
1959: The Law of Personal Status of Iraq.
1976: The Law of Personal Status of Jordan.
1977: Afghanistan.
1984: Libya,
1984: Kuwait,
1992: Yemen
Reforms in triple talaq
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2005: United Arab Emirate,
2006: Qatar,
2009: Bahrain
Pakistan adopted its Muslim Family Law
Ordinance in 1961 which is adopted in
Bangladesh in 1972
Reforms in triple talaq
• 1956: Tunisian Code of Personal Status divorce
pronounced outside a court of law will not have
any validity whatsoever
• under Article 32 no divorce shall be decreed
except after the court has made an overall inquiry
into the causes of rift and failed to bring about
reconciliation.
• 1984: In Algerian law, ‘divorce may only be
established by a [court] judgment preceded by an
attempt at reconciliation by the judge which shall
not exceed a period of three months.
Reforms in triple talaq
• 1956: The Marriage and Divorce (Muslim) Act,
1951 as amended up to 2006 of Sri Lanka
provides that a husband intending to divorce his
wife
• “shall give notice of his intention to the Qauzi
(sic. Qadi)”
• who shall attempt reconciliation between the
spouses “with the help of the relatives of the
parties and of the elders and other influential
Muslims of the area.”
Reforms in triple talaq
• However, if after 30 days of giving notice to
the Qadi, attempts at reconciling the spouses
remain fruitless, “the husband, if he desires to
proceed with the divorce, shall pronounce the
talak (sic. talaq) in the presence of the Qadi
and two witnesses.
Reforms in triple talaq
• Under the Family law of the Malaysian state of
Sarawak, a husband who desires to divorce his
wife has to request the court
• which will look into the causes of proposed
divorce and advise the husband not to
proceed with it.
• However, if the differences are irreconcilable,
then the husband may pronounce one divorce
before the court.
Reforms in triple talaq
• It seems that Muslim States have mostly
adopted the opinion of Ibn Taymiyyah on
triple talaq either explicitly or implicitly
MFLO 1961 in Pakistan
• Background of MFLO:
• In 1955, Muhammad Ali Bogra married his
secretary while still legally married to his first
wife.
• The All Pakistan Women’s Association (APWA)
began an organized agitation throughout the
country.
Background of MFLO
• On August 4, 1955 the government of Pakistan
announced a seven member Commission on
Marriage and Family Laws,
• Dr. Khalifa Shuja-ud-Din (President), Dr. Khalifa
Abdul Hakim (Member Secretary), Maulana
Ihtisham-ul-Haq Thanavi, Mr. Enayet-ur-Rahman,
Begum Shah Nawaz, Begum Anwar G. Ahmad,
and Begum Shamsunnahar Mahmood.
• Mian Abdur Rashid, former Chief Justice of
Pakistan, was appointed as President on October
27, 1955 after the death of its President
Mandate of the Commission
• The Commission was mandated to report on
“the proper registration of marriages and
divorces, the right to divorce exercisable by
either partner through a court or by other
judicial means, maintenance and the
establishment of Special Court to deal
expeditiously with cases affecting women’s
rights.”
Background of the MFLO
• The Commission published its report on June 20,
1956
• The dissenting note of Moulana Thanavi was
published separately on August 30, 1956.
• The Commission invited severe criticism from the
ulama.
• The Commission recommended that 1. three
divorces in one session would amount to one
pronouncement and 2. for a divorce to be
effective two further pronouncements in two
subsequent tuhrs would be necessary.
Commission’s recommendations
• That the legislation should provide that no
person shall be able to pronounce a divorce
without obtaining an order to that effect from
a Matrimonial and Family Court.
• Moulana Thanvi rejected the
recommendations of the Commission.
Thanvi’s Criticism
• He stated, “To put a restriction on the
exercise of this right by making it ineffective if
talaq is not registered or not authorized by
the Matrimonial and Family Laws Court, not
only amounts to tampering with the
injunctions of the faith but also putting
obstacles in the way of dissolution even when
it becomes necessary and desirable.”
S. 7 of the MFLO
• The State ignored Court’s intervention
• S. 7: 1. Any man who wishes to divorce his wife
shall, as soon as may be after the pronouncement
of talaq in any form whatsoever, give the
Chairman notice in writing of his having done so,
and shall supply a copy thereof to the wife.
• … 3. Save as provided in sub-section (5), a talaq
unless revoked earlier, expressly or otherwise,
shall not be effective until the expiration of ninety
days from the day on which notice under subsection (1) is delivered to the Chairman.
S. 7.
• 4. Within thirty days of the receipt of notice
under sub-section (1), the Chairman shall
constitute an Arbitration Council for the purpose
of bringing about the reconciliation between the
parties, and the Arbitration Council shall take all
steps necessary to bring about such
reconciliation.
• 5. If the wife be pregnant at the time talaq is
pronounced, talaq shall not be effective until the
period mentioned in sub-section (3) or the
pregnancy, whichever be later, ends.
S. 7
• 6. Nothing shall debar a wife whose marriage
has been terminated by talaq effective under
this section from marrying the same husband,
without an intervening marriage with a third
person, unless such termination is for the
third time, so effective.
Implications of S. 7
• 1. it refers the issue of divorce to an administrative
body for bringing about a re-conciliation;
• 2. talaq is not effective for ninety days during which
reconciliation shall be attempted between the parties.
• Unfortunately, the reconciliation effort does not
precede the pronouncement of talaq, it follows it.
• 3. although sub-section (1) mentions any form of talaq
(talaq in any form whatsoever) which in turn, obviously
includes ahsan, hasan, as well as talaq al-bid‘a.
• But under Islamic law the procedure for reconciliation
is only possible if only one or two pronouncements are
made.
Implications of S. 7
• 4. Section 7 can be construed to have impliedly
abolished talaq al-bid‘a (triple talaq)
• because it allows remarriage between the two
parties after the divorce without an intervening
marriage or halala, unless this is the third such
pronouncement under section 7(6).
• Reconciliation after triple talaq in one session is
possible according to Ibn Taymiyya, Ibn alQiyyam, the ahl al-hadith and the Shi‘a Imamiyya
because they treat three repudiations in one
session to be one.
Criticism of S. 7
• 1. under Islamic law a third divorce becomes effective
as soon as it is pronounced
• but under section 7 a third divorce will be effective
after ninety days have elapsed from the date of the
receipt of the notice by the Chairman (and not from
the date of pronouncement of talaq).
• 2. under Islamic law, ‘iddat is counted from the time of
the pronouncement
• but under section 7 it is counted from the time the
notice is received by the Chairman.
• problems arise when no notice is sent to the Chairman.
Criticism of S. 7
• 3. under Islamic law divorce of a couple who
have not yet consummated their marriage
becomes effective immediately and no ‘iddat
(waiting period) is required for the woman.
• But under the MFLO every divorce whether
the marriage is consummated or not, will be
effective after the expiry of ninety days since
the receipt of the notice by the Chairman.
Criticism of S. 7
• 4. according to section 7, the ‘iddat of a
woman who is not pregnant is over ninety
days
• but under Islamic law, her ‘iddat is three
monthly courses.
• 5. under section 7 the ‘iddat period of a
pregnant woman is the end of pregnancy or
ninety days, whichever is later.
Criticism of S. 7
• According to the Qur’an, it ends with the end
of pregnancy which may be less than ninety
days.
• 6. under section 7 effectiveness of talaq is
dependent on the notice of talaq to the
Chairman and reconciliatory efforts by him.
• This has no basis in Islamic law.
Judicial Interpretations of Section 7
• Consequences of failure to give notice of talaq
• In 1963 Gardezi case the Supreme Court of
held that where the husband did not give
notice of talaq to the Chairman, he would be
deemed to have revoked the talaq
• This remark of S A Rahman was raised by the
HCs and the SC in subsequent cases to the
standard of a ratio
Judicial (mis)interpretation of S.7
• The dicta of Gardezi case became the ‘Gardezi
rule’
• In 30 years there have been two exceptions to it
because the peculiar circumstances of those
cases
• A woman ‘ld be divorced orally without giving any
notice to the Chairman ‘ld be accused of zina
with her new husband
• Such a husband used to benefit from his own
failure by abstaining to give notice of talaq
• The PWA 2006 put an end to this
The S C overruling the Gardezi case
• In 1993 the S C in Kaneez Fatima case held
that "failure to send notice of Talaq to the
Chairman of the Union Council does not by
itself lead to the conclusion that Talaq has
been revoked. It may only be ineffective but
not revoked."
Kaneez Fatima Case
• It was held that “In case where with the
consent of both the parties divorce is effected
and confirmed in writing under their
undisputed signatures section 7 should not be
strictly construed.”
• The Court opined that “the notice can be sent
at any time thereafter to comply with the
provisions of section 7.”
Kaneez Fatima Case
• The Court held, “So far the observations made
in Syed Ali Nawaz Gardezi's case, it may be
observed that failure to send notice of Talaq
to the Chairman of the Union Council does not
by itself lead to the conclusion that Talaq has
been revoked. It may only be ineffective but
not revoked.”
Another Strange decision?
• In Mst. Farah Naz v. Judge Family Court (2006)
the S C held that
• “[O]ral allegation of Talaq would neither be
effective nor valid and binding on the
appellant.”
• The Court didn’t refer to the Gardezi case or
Kaneez Fatima case
• It was a Divisional Bench decision
• Kaneez Fatima was a larger Bench (5) decision
Inconsistency of the S C
• The S C is inconsistent regarding its
interpretation of S. 7
Triple talaq and Indian Cases
• Unlike Pakistan and Bangladesh there is no
statutory law on talaq in India
• Indian High Courts have ruled that triple talaq
amounts to one
• In Mariam v Md. Shamsi Alam (1947) the man
pronounced triple talaq but wanted to
reconcile but the wife filed for a declaration
that she has been divorced
Case law in India
• The Allahabad H C held that “A divorce
pronounced thrice in one breath by a Muslim
husband would have no effect in law, if it was
given without deliberation and without any
intention of effecting an irrevocable divorce;
such divorce is a form of talq-e-ahsan, and
thus is revocable by the husband before the
iddat expires.”
Case law in India
• In Rahmat Ullah v. State of U.P. (1993) the
Lucknow Bench of Allahabad High Court
• A notice was issued to Rahmat Ullah, under the
U.P. Imposition of Ceiling on Land Holding Act,
1972.
• He pleaded that since he had divorced his wife
Khatoon Nisa the land belonging to her was
mistakenly added to his assets.
• Both Khatoon Nisa and Rahmat Ullah produced a
document to prove their divorce 25 years ago.
Case law in India
• Under the Act, a married woman cannot hold
separate property;
• but a judicially separated wife or a divorcee can.
• The High Court had to rule whether the plea of
divorce was genuine or resorted to only to
defraud the state, and secondly, whether a
woman who is divorced according to the rules of
her personal law is entitled to the same benefits
as a woman who is separated or divorced
through a court decree.
Indian cases
• The Court ruled that the mode of triple divorce,
giving unbridled power to the husband to divorce
his wife at will, cannot be deemed operative as it
has the effect of perpetuating discrimination on
the ground of sex, i.e., male authoritarianism.
• The Court further opined that since the practice
of triple talaq denigrates women, it is in violation
of the Indian Constitution.
• The Court has attempted to force a re-union
between the ex-husband and his divorced wife
without their free consents.
Indian Cases
• Other conditions laid down by Indian Courts
are that triple talaq is that talaq must be ‘for
a reasonable cause’ (Jiauddin Ahmed v.
Anwara Begum (1981)
• 2. talaq must be preceded by ‘attempts at
reconciliation’ by the nominees of the spouses
and
• 3. it ‘may be effected’ if the said attempts fail.
Indian Cases
• However, such reforms should be brought by
the legislators and not through judicial law
making or judicial activism.
• The Indian courts have attempted a rewriting
of Islamic law unknown to the overwhelming
majority of Muslim jurists.
Conclusions
• Many Muslim States have adopted the opinion of
Ibn Taymiyyah regarding triple talaq, i.e. triple
talaq in one session amount to one.
• S.7 of the MFLO has various flaws as many of its
provisions are against Islamic law
• The S C held in the Gardezi case that failure to
give notice of talaq amounts to revocation.
• It was overruled by Kaneez Fatima
• The Farah Naz case has ignored Kaneez Fatima
Conclusions
• Indian High Courts have adopted the position
of Ibn Taymiyyah
• They have also ruled that talaq must be for a
just cause and must be preceded by an
attempt at reconciliation
• The ‘just cause’ condition has no basis in
Islamic law
END
Thank You
Q&A
Dr. Muhammad Munir
[email protected]
http://ssrn.com/author=1633078