Tuesday, 8 August 2017

Letting go of instant triple talaq

A. Faizur Rahman in The Hindu





There are enough legal devices within India’s dominant Hanafi school jurisprudence to invalidate it


About two months ago, the All India Muslim Personal Law Board (AIMPLB), through its counsel Kapil Sibal, informed the Supreme Court that it was considering reforms and the gradual giving up of instant talaq but wanted time for it. One of the “reforms” mentioned was a circular from the board asking all qazis to advise the husbands, while finalising the marriage contract, not to resort to instant divorce (talaq-e-bid’a) unless under compelling circumstances. The “compelling circumstances”, however, were not defined.

This is not the first time the AIMPLB has tried to illude Muslim women with the talk of reforms. In July 2004, in its executive committee meeting in Kanpur, the board was widely expected to outlaw instant talaq. But nothing came of it. Muslim women were let down once again in May 2005 when the board’s much-hyped ‘model nikahnama’ released in Bhopal turned out to be a damp squib. All that it contained against talaq-e-bid’a was a casual, non-binding advice to the groom in Section 5 (vii) saying: “Jahan tak mumkin ho ek waqt mein teen talaq dene se bachna (to the extent possible, avoid pronouncing three divorces in one sitting).” 

Reasons for rigidity

This sort of dilly-dallying on reforms renders the assurances given by the AIMPLB to the Constitution Bench unreliable. But what makes the board so unyielding? The rigidity stems from two concepts namely taqleed (uncritical acceptance of a school) and tamazzhub (idealisation of a school) wherein precedence is given to one legal school (mazhab) over the rest.

The four major schools of Sunni law — Hanafi, Maliki, Shafi’i and Hanbali — differ from one another on the basis of the interpretive methodology they adopt to derive law from the Koran and the Prophet’s sayings. And the belief that only the interpretation of their school is correct makes followers exalt the totality of juristic pronouncements of the school (the doctrine of tamazzhub). In taqleed, the adherents just follow their school uncritically even if they don’t elevate it above others.

A subdued emphasis on tamazzhub, and an overt expression of taqleed, is clearly visible in the 30-page “Note on arguments of Mr. Kapil Sibal” submitted to the Supreme Court wherein the issue of instant talaq is reduced to a question of whether or not it is a part of the Hanafi faith because more than 90% of Indian Muslims are Hanafis. 

Such an argument is unacceptable as it is based on the presumption that by mere accident of birth, Indian Muslims are forever obliged to follow the Hanafi mazhab. Nevertheless, the AIMPLB seems to have overlooked the fact that tamazzhub or taqleed cannot be easily invoked in the case of talaq-e-bid’a. In the aforementioned “Note”, the board admits that Imam Abu Hanifa (d.767) “did not record his own understanding of what the Prophet said in writing”; however, his two disciples — Imam Abu Yusuf (d. 798) and Imam Muhammad (d. 805) — immediately upon his death recorded in writing what Imam Abu Hanifa had said about triple talaq.

In other words, Hanafi theologians do not possess any direct statement from the founder-jurist of the Hanafi school that upholds the validity of talaq-e-bid’a.

Case for invalidation

If the definition of tamazzhub were to be stretched to also include the statements of Imam Abu Hanifa’s students, as is being done now by the AIMPLB, would it indicate the inconceivability of reforming the Muslim personal law in India? Certainly not. There are enough reasons and legal devices within Hanafi jurisprudence to outlaw instant talaq.

It can be shown that Imam Abu Hanifa’s own students did not indulge in blind taqleed or tamazzhub. They boldly differed with him on several issues. Imam Abu Yusuf’s Kitab al kharaj, that records the fatwas of Imam Abu Hanifa on financial matters, also contains Abu Yusuf’s opinions that are at odds with his teacher’s. In his research paper, “The Authenticity of Two 2nd /8th Century Hanafi Legal Texts: the Kitāb al-āthār and al-Muwatta' of Muhammad b. al-Hasan al-Shaybāni”, scholar Behnam Sadeghi states that he counted 27 cases in Kitāb al-āthār in which Imam Muhammad disagreed with Imam Abu Hanifa.

The ulama within the AIMPLB will only be following this liberal Hanafi tradition if they abandon, in the interest of Muslim women, juristic opinions that justify the validity of talaq-e-bid’a. After all, the “Note” admits that the nomenclature talaq-e-bid’a is not referred to in the Koran or the Hadees. It is “categorised and interpreted by Islamic scholars”.

It should not be difficult for the AIMPLB to give up anachronistic interpretations of earlier scholars especially when they contradict the Koran. Indeed, Hanafi jurists in the 10th century had abandoned, using exegetic rationales, even authoritative Prophetic hadeeses such as those that allowed women to join congregational prayers in mosques. The reasons cited were taghayyur al-zamaan (change of times) and fasaad al-zamaan (corruption of the times).

Hanafi jurists also resorted to legal stratagems called hiyal (sing. heela) to circumvent or overcome the rigidity of law. Heela is based on a doctrine called tahayyul under which a jurist, if circumstances so warrant, finds a way to legalise what is otherwise prohibited by law. Jurists also had recourse to takhayyur (selecting the most suitable among available legal opinions in a given school of law) and talfiq al mazaahib (derivation of rules from material of various schools of Islamic law).

These instruments were utilised to give effect to the Islamic legal maxim “laa yunkar taghayyur al-ahkaam bi taghayyur al-zamaan wa al-ahwaal”, which means “there is no denying that laws will change with the change of time and circumstances”.

Therefore, if the AIMPLB is really serious about reforms, there are enough legal devices within the Hanafi denominational faith system to invalidate instant triple talaq.

The way forward

For this to happen, the AIMPLB must be willing to reassess its raison d’être and model itself on Koranic universalism rather than legal conformism. It must be open to the idea of its certitudes being challenged, especially in the light of the fact that the founder of the Hanafi school, Imam Abu Hanifa, was himself a model of independent reasoning (ijtihad) and flexibility. He introduced the concept of istihsan, which helps jurists depart from the existing precedent by taking decisions different from those of similar cases, for reasons stronger than those obtained in the past cases.

Applying istihsan, and devices mentioned above, the AIMPLB can easily overhaul the legal methodology that validates talaq-e-bid’a and harmonise it with the intent of the Koran and Prophetic teachings. In pursuance of this, the board may immediately declare talaq-e-bid’a invalid as the first step towards reform. This, of course, entails a difficult shift from rigid tamazzhub and taqleed to adaptable ijtihad. But the benefits are huge.

It would open up Islam to modern interpretations within the framework of its original sources, and in the long run inculcate a sense of tolerance among Muslims for different points of view and equip them to respond positively to the requirements of a multicultural society like India. The question is: does AIMPLB realise the momentousness of giving up its obsessive denominationalism?

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