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Wednesday, November 17, 2010

Darul Uloom Deoband turns into a Fatwa Factory: Triple Talaq and Women's rights in Islam

Due to Darul Uloom Deoband's historic role and its Ulama's recent social initiatives, one could have ignored a couple of controversial fatwas but the latest fatwa has once again proved that there is something seriously wrong with the seminary, especially the Darul Ifta or the 'Fatwa wing'.

It is no longer an aberration when the Darul Uloom opines that even if a person has uttered the word 'talaq' thrice and his wife couldn't hear it, the divorce takes place.

In fact, the query was about whether the marriage is annulled when a person has said 'talaq' thrice over phone when the wife has heard and it happened in the presence of a witness.

But in the reply, the seminary went ahead and answered something which had not been asked. The mufti said that it is not required whether the wife has heard it or not, or whether there is a witness around. The talaq is valid. Even when the wife has not heard [she is not aware].

I am sorry but this fatwa is unjust, it is clearly against women, it is irresponsible and against the spirit of religion. 'Talaq is valid even if the wife hasn't heard the word thrice, the talaq is valid', is the Times of India report. And though fatwa is a mere opinion that is not binding, it sends a message particularly when it comes from such an institution.

While on one hand, Ulema in many countries accept that 'three talaqs' in one go ought to be considered as one, the Indian Ulama continue to behave irresponsibly. It ruins countless marriages and puts a sense of fear among women.

Fatwa: Darul Ifta's reply to Query number 27275
 Several major Muslim countries have banned the 'triple talaq'. The pronouncements have to be at regular intervals, so as to give the couple a chance of reconciliation. As marriage is a contract, talaq is an option but Islam discourages it, and it is considered a repulsive act though acceptable when it becomes impossible for a couple to live together happily.

Recently, there was a Deoband fatwa in reply to a query from a man who had jokingly typed the word talaq thrice during an internet chat session with his wife and in this case also Darul Ifta had said that the divorce had taken place.

Whether a man is drunk or the wife has not heard it, it is all the immaterial and the Ulama not just pronounce talaq, they in fact seem almost eager to pronounce talaq on every question relating to marital dispute between husband and wife.

Is it a joke? Sorry it's too serious to be a joke. It affects lives, hurts clans and it also serious dents the image of Muslims. When there is no dearth of Ulema, who claim that 'putting out the word talaq in one sitting' is raj'i talaq which is not permanent and woman can return to her husband, the Ulama remain admant.

On one hand, the Deoband Ulema had chartered an entire train and taken it to Hyderabad to deliver the historic fatwa against terrorism, held anti-Terror conferences across the country and now they regularly issue diktats that Muslims must not slaughter cows in India, as it hurts our Hindu brethren. These things have earned them goodwill.

They go the extra mile to ensure that there is political correctness in their approach and statements. However, when it comes to internal issues of the community, particularly, the state of women, they remain rigid. There is no thought given to what leading Sunni scholars have said about the practice of 'triple talaq' and its misuse.

Ideally there should not be any institutionalised clergy in Muslims. However, there is one and perhaps it is needed to an extent. But with its narrow interpretation of Islamic principles, the leading institution has shown itself in poor light.

News in Urdu daily Siasat, Hyderabad published on November 16.

The practice of seeking answer to every issue on website and obtaining online fatwas has created lot of controversies earlier also. In the past, mischief-makers have also misused it by asking frivolous queries and also sought answers on delicate issues, twisting them latter to tarnish the image of the seminary. But now Deoband itself seems scoring self goals with the unique fatwas.

Not just Shias, Sunni majority countries from Indonesia in the far East to Turkey and even Pakistan, have held 'triple talaq' as unlawful. What prevents the Ulama to join heads and think over it? Social movement and proactive role of Muslim community is a must in achieving this objective.

Either it's Deoband or any other institution, it is not above criticism. Ulema must introspect. It is timely that they should go away with their illogical and irrational interpretations. Not just them, the prestige of the community is also at stake.


Archana said...

I think all people - irrespective of their religions, should follow the law of the land, which is the Indian Civil Code, which really gives a fair deal to people without indulging in any religion.

We all - and I'm not talking only about Muslims, but also about Hindus - do a damage to democracy if we give too much of credence to religion where we should not, where a so-called "religious" practice is really against human right.

Hindus have been prohibited from giving and taking dowry but majority of them indulge in it.

In the same way, Muslims ask the clerics these absurd questions about whether a triple talaq on phone is valid and the clerics also give absurd responses to such questions.

Whether it's a Hindu or a Muslim couple, the effort should be on maintaining the marriage and if there are really serious problems, the couple can follow the path of Indian Civil Code and get divorce after one year's separation by mutual consent.

I don't understand why Indians have to make things complicated when there are straight paths available to them in the Civil Code.

It is only for the Muslims to educate their brethren about not following these absurd fatwas, since it is not binding on them to follow them anyway.

This blog is doing a good job in that direction.

Yogi said...

This article is really inspiring....I want to send it out on m y email list. Do let me know who the author is!
Thanks and regards
Yoginder Sikand

urdudaaN said...

This is the result of trying for "religious" and "political" correctness at the same time, and both clashing with each other, achieving none.
If the question "why women cannot divorce?" can be answered in an acceptably rational manner, we don't have to struggle with any other aspect of it.
Alas, Indians want to discuss Islam in terms of 'divorce' and 'kafir' and 'cow slaughter' and not its basic like 'unity of God', 'anti-corruption', 'anti-hoarding', 'anti-exploitation like interest' etc.

indscribe said...
This comment has been removed by the author.
indscribe said...
This comment has been removed by the author.
indscribe said...

Archana Ji: You are right that the aim should to be at solving disputes and to look for reconciliation rather than readily severing the nuptial bond.

In fact, the Darul Qaza institutions [qazi's court] were established in many places for arbitration long ago.

But unfortunately there is hardly any arbitration or attempt for reconciliation. Middlemen and 'dalaals' got active in these places also who would charge extra sum from one side to get decisions in their favour.

Islamic law had long back given women the right to give divorce to her husband. However, at the ground level, things are really bad.

When there are absurd fatwas like the one discussed in the post, you really don't know what to do.

Women's issues are not always understood by men, especially Ulema, who many often tend to give flawed judgments. These things aren't even critically examined.

As far as Common Civil Code is concerned, yes there should be uniformity but this country is so huge and has so many different groups that it was believed that things are difficult to manage by one set of law in terms of personal life [marriage, adoption et al].

For example, it is not commonly known and unbelievable for Northern Indian but it is common for Hindus in Andhra Pradesh that girl gets married to her real mama [maternal uncle]. Younger uncle marrying neice is not a taboo there but it can give a shock to rest.

Or for that matter marriage with first cousins among Muslims and many other communities or tribal laws that are frowned upon my some sections in North.

While Hindus have had numerous reformers, in the 18th & 19th century, Muslims hardly have any progressive socio-religious leadership.

There must be movement from within and real debate on the practice of 'triple talaq'. Anyhow Muslims must consider these issues seriously and ponder over them.

Yogi Ji: Really nice to have you visit this blog. You can put my name as Adnan Alavi or give a link to the blog.

Urdudaan Sahab: Thanks for your comment.

Abdul Ghani said...

If you disagree, that's one thing - present a logical argument and propose a solution. But the shock you claim here is ridiculous. These fatawa are not just pulled out of thin air. That three divorces count as three is the position of all four Sunni schools of fiqh, as practiced in all Muslim countries from the time of the Prophet - alaihis-salat was-salam - until the last century. And, as far as I know, no scholar has ever considered it a requirement of divorce for the woman to hear the initial pronouncement. You would not have found a different judgement in any book of Hanafi fiqh from any time or place. So what would you expect a Hanafi mufti to say in answer to this question?

The fatwas of individual muftis - even as influential an institution as Deoband - are not legally binding. And Muslims in India are free - at least in theory - to adhere to some other sect or marry under the Civil Code. And what on earth does it mean to call the Dar al-Ifta a "fatwa factory?" What else would they produce, toothpicks?

Incidentally, you say that others consider three divorces given at once "unlawful." The Hanafi and other Sunni ulama also consider it unlawful - it is a tremendous sin. But in their view it is also valid and effective.

Abdul Ghani said...

If you propose enforcing a waiting period between pronouncements of divorce, how much of a waiting period do you propose? From a social perspective, what is your evidence that it will be effective in discouraging careless divorce? And from an Islamic perspective, what is your justification in terms of evidence from the sharia?

In Indian public discourse we've never heard a well argued case for considering three talaqs as one from within an Islamic context. For the most part the phrase "outlawing triple talaq" is the favorite of Hindutva mouthpieces and hardly less bigoted upper caste Hindu feminists who do not have the vaguest notion what that inept phrase actually might refer to. Neither the ghair muqallids nor the modernists have any even remotely capable spokespeople to put forward their case.

I would also point out that replacing religious family law with a uniform civil code would not prevent people from applying these fatawa in their own lives - which is exactly what Muslims in Western countries do.

@Archana - Muslims, clerics and individuals, are following the law of the land. The Muslims are marrying under Muslim personal law - part of the law of India since before the existence of the current Republic, and muftis are giving their opinions of what the sharia requires of Muslims. Of course everyone wants to reduce cases of divorce, and of all forms of abuse. But civil law does little to solve this - especially as the Indian judiciary is at least as inept and corrupt as any other institution, religious or secular.

@Dr. Sikand - I'm curious to know what you saw in this rant that you thought merited the time and energy your mailing list readers would have to devote to it?

Archana said...

I understand the argument about the cultural diversity of India and also know about the blood-relation marriage in certain pockets of India.

The point is that we should be able to differentiate between a cultural tradition that is different from the mainstream but is harmless and a cultural or religious tradition that violates human rights and is essentially anti-democratic in nature. The latter has to be eliminated and Civil Code should be followed in such cases, irrespective of religion, ethnicity or any other category.

I think there is no space for allowing a practice that sanctions human rights violations in the name of religion or cultural diversity in a modern democracy.

If we had thought like this in the 19th century, then malpractices such as Sati, child marriage etc could never have been banned in the name of cultural (or religious) diversity.

Blood marriages are bad for the offsprings, it has been scientifically proven and the communities who practise it should be sensitised towards leaving such a practice, rather than protecting such outdated and harmful practices in the name of cultural or religious diversity.

Same applies to other religions in India. In a divorce, there should be enough reasonable ground for divorce and if woman is not earning, she should get maintenance, be it a Hindu, Muslim or Christian couple - that doesn't matter. Religion should not be brought in between.

If you see Hindu tradition, Hinduism actually doesn't recognise divorce at all. A Marriage is for ever in Hinduism. But we have to go by the demands of our modern times and allow divorce where it is necessary and not by what our religion recognises. Same applies to Islam, Christianity and every other religion. the argument of cultural (or religious) diversity is not valid here. This is an issue of human rights according to our today's times and religion has no place in it.

I feel that the clerical orthodoxy in Islam is trying to keep the common Muslim masses under control by giving the argument of religion where it should not be given. It is for educated people like you to make the Muslim masses aware of this and sensitise them towards accepting a modern, democratic lifestyle. Otherwise, the Muslim community will never come out of its shackles of clergy.

Contd below...

Archana said...

You rightfully mention that Muslims haven't modernised as Hindus did in the 19th century. The question is - why has it happened like that? Why don't the Muslims modernise like the Hindus did? My guess is that they blindly follow the clergy, as Hindus used to do till the 19th century.

I strongly feel that we should not protect harmful practices in the name of religion or cultural tradition and follow the Civil Code in such cases. If India doesn't understand this, it will never go forward.

I am not arguing for uniformity at the cost of our diversity, which is our most unique strength. Rather, I am saying that those cultural or religious practices must be protected by all means which are not in violation of human rights. But the ones which violate the human rights must be eliminated regardless of the community.

We should be able to differentiate between the two.

Anser Azim said...

I think Quran is loud and clear about this subject. And interpretations of this done by the people who are expert in these fields not us. Indian constitution and constitutions of the democratic worlds have imbibed many of these laws from biblical and quraanic sources. Here was a genuinie fatawa from Islam city to a question on this subject. I will desist to poke my nose in these matters as they are beyond my expertise.
Here is the quote. though long but answers many of your questions.
Dear Scholar: Assalam-o-Alaikum : I am suffering from a severe problem. My nikah was solemnized a year before but this marriage was not consummated. My husband went to Canada after one hour of our Nikah. We never met alone and this marriage was not consummated. Due to some problems which raised and could not be settled down. In October my husband said through an email that divorce paper are ready and I will send u soon. In December I received a divorce deed from my husband containing the statement ” Now this deed witness that, I the said do hereby divorce Almas Rashid pronouncing upon her Talak, Talak and Talak and by serving all connections of husband and wife with her forever and for good” My questions are: Q1: Is the procedure of divorce is same just like normal case as this marriage was not consummated (without any sexual relationship)? Q2: Is in such case its one divorce effective or it will be considered as tripple divorce effective(According to my husband his intention was of giving three divorces)? Q3: Can I re-marry with the same person without interviening marriage? Please guide me with the referrence of Quraan, hadith and Fiqh. Anxiously waiting for the answer. Please respond me soon. I want to live my life with him, if somthing possible, I want to convince him.

ALLAH swt says:

"There is no blame on you if ye divorce women before consummation or the fixation of their dower; but bestow on them (A suitable gift), the wealthy according to his means, and the poor according to his means;- A gift of a reasonable amount is due from those who wish to do the right thing.

And if ye divorce them before consummation, but after the fixation of a dower for them, then the half of the dower (Is due to them), unless they remit it or (the man's half) is remitted by him in whose hands is the marriage tie; and the remission (of the man's half) is the nearest to righteousness. And do not forget Liberality between yourselves. For Allah sees well all that ye do." (Al-Quran 2:236, 237)

As for the question of waiting period (`iddah) for these women (divorced before consummation) , Allah says:

"O ye who believe! When ye marry believing women, and then divorce them before ye have touched them, no period of 'Iddat have ye to count in respect of them: so give them a present. And set them free in a handsome manner. " (Al-Quran 33:49)

Based on the above ayah if husband has divorced before touching the wife then they have to perform new Nikah for reconciliation.

Those three divorces will be counted as one.

1. Procedure of divorce before consummation is explained above.
2. One divorce will be effective based on the following explanation.
3. You can remarry without Halalah.

A husband who wants to divorce his wife should use the words of divorce with full awareness after much thinking and consideration. Using the words of divorce in haste or anger is not right. The proper procedure is to give divorce when a woman is not pregnant and is not going through her monthly menstrual cycle. Divorce can take place by saying one time "I have divorced you" (talluqtuki) or "You are divorced" (anti taliq). After this the women should spend the time of her `iddah. During the period of `iddah the husband can cancel his divorce and can resume the matrimonial relationship, but if it does not happen then the divorce takes effect and at the end of the `iddah period their marriage ends.

Anser Azim said...


There is no need to repeat the words of divorce more than once. Even one divorce is sufficient to terminate the relationship.

The provision of the second and third divorce is given for a husband who divorces his wife one time and then cancels his divorce, but then after sometime changes his mind and divorces her again second time. Then he changes his mind and resumes the relationship and then again after that he divorces her. The Shari`ah says that now this relationship should end. Marriage is a serious matter. One cannot keep divorcing one's wife and returning her back.

After the third divorce he cannot take her back. The third divorce is called the "irrevocable divorce" (talaq mughallaz). The wife now becomes forbidden to her husband completely. She cannot go back to this husband who has divorced her three times, unless she marries another person who out of his own free will divorces her and then after the `iddah she and her previous husband want to remarry. This is called halalah in the language of the Shari`ah. This rule is given by the Shari'ah to reduce the occurrence of three divorces and to protect the honor of the woman.

Some people misuse this procedure out of ignorance or willingly. There are some people who think that the divorce (talaq) would not happen unless one makes the statement three times. There are others who repeat the words of divorce for emphasis and have no idea that this could be very serious. The jurists (fuqaha') have discussed this issue for the last fourteen hundred years. There were some jurists who took the strict position that three divorces whether uttered at once or separately would be considered as three divorces. According to them, whether a person misused this right knowingly or unknowingly the affect would be the same. If some one uttered the words of divorce three times, then this would be talaq mughallaz and his wife would become totally forbidden for him and they could not reconcile without a halalah. There are, however, some other jurists who emphasize the role of will in marriage and divorce. They say that if the husband used three divorces intentionally as three, then they will be counted as three, but if he repeated the words in anger or to emphasize his point then this is one divorce and he will have the right to resume the relationship with his wife. I feel that the second position is closer to the spirit of the Shari`ah."
May Allah guide us all to the straight path!
Wassalam and Allah Almighty knows best.

Anser Azim

Archana said...

It is really the free choice of the common Muslim population to either make the transition towards modern, democratic norms, or stick to their old ways as prescribed by their Ulemas.

The non-Muslims can't really make them choose either way.

But the result is inevitable. If they choose to hang on to a set of laws which are not in line with the modern democratic norms, they are bound to be left behind, while more and more non-Muslim population makes the transition to modernity and democracy and moves forward.

This gap will keep on growing with time.

The common Muslim population has to understand this and the more enlightened Muslims have a responsibility to get this across in the Muslim population.

indscribe said...

Archana Ji: I totally agree with you that when it comes to violation of the most basic human rights.

Change comes but depends on socio-economical conditions and other factors.

Despite being an educated society, the oppression of women especially widows had reached its nadir in Bengal.

With British came and Calcutta was their capital, this oppression became too obvious and educated Hindus took the plunge.

Either it's the Khap Panchayats among Hindus in Haryana-Northern UP or the regressive Muslim Ulama who deliver absurd judgments, they will eventually be sidelined.

Ghani Sahab: You miss the point. If you are happy with such absurd fatwas, you are absolutely free and entitled to do that.

Anser Sb: Thanks for your valuable post.

Anonymous said...

Couldnt agree more with that, very attractive article

Anonymous said...

Hi Indscribe, I am visiting your blog after a long time. And as usual, it's refreshing. Please keep writing. It's great to hear sane voices in our country.

Best wishes,

aamir sheikh said...

There are hundreds of religious bodies/institutions who MAKE SUCH ABSURD FATWAS WITHOUT ANY BASE. These are simply jokes and nothing else.

Only one law should prevail, the law of Democracy which ensures justice, equality, freedom, personal liberty, religious freedom and so on ...