India and UCC

Triple Talaq, Halala, AIMPLB  and UCC

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Triple Talaq, All India Muslim Personal Law Board (AIMPLB) and Uniform Civil Code (English)

Part 1

Part 2

Triple Talaq, All India Muslim Personal Law Board (AIMPLB) and Uniform Civil Code (Urdu)

Part 1

Part 2

Part 3

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Fatwa on Halala

Shaykh (Mufti) Ebrahim Desai (HA)

Q. When a hus­band divorces his wife three times, she is already trau­ma­tized, why does Shari­ah pun­ish her again by sub­ject­ing her to halalah? Why isn’t a sim­ple nikah suf­fi­cient with­out con­sum­ma­tion? Why should the divorcee be dirt­ied by anoth­er man? I per­son­al­ly won’t return to such a woman. Does­n’t the process of halalah also cre­ate temp­ta­tions of oth­er men in the divorcee?

A. The con­cept of halalah, where the divorcee of three times (Talaq-e-Mugal­lazah) is required to mar­ry anoth­er man and have the mar­riage con­sum­mat­ed as a pre­con­di­tion for her to revert to her hus­band is express­ly men­tioned in the Quran (Baqarah: 230) and many Aha­dith (Bukhari, vol. 2 — pg. 731 H.M. Saeed). Allah Ta’ala is Al-Hakeem (The All-Wise). Every decree of Allah is filled with wis­dom. The full depth of the wis­dom of Allah Ta’ala can nev­er be fath­omed by all the most intel­li­gent peo­ple of the world. We as the slaves of Allah Ta’ala are duty bound to express sub­mis­sion to Allah. He is our Mas­ter and we are His slaves. We have to sim­ply obey the orders of Allah whether we under­stand them or not. Allah out of infi­nite mer­cy has also grant­ed the under­stand­ing of deen to the Ula­ma. That under­stand­ing cre­ates a sense of ful­fill­ment in express­ing servi­tude to Allah. The prac­tice of halalah is the express order of Allah. This was also advised by Rasu­l­ul­lah (sal­lal­lahu alay­hi wasal­lam) to the wife of Rifa’ah Al-Qurazi who was pre­vi­ous­ly mar­ried to Abdul Rah­man Ibn Zabeer. This inci­dent is record­ed in almost every book of Hadith and sev­er­al places in Bukhari. Let us briefly dis­cuss the wis­dom of this decree of Allah. Shari­ah has grant­ed a lofty posi­tion to a woman as a daugh­ter, as a wife, as a sis­ter and as a moth­er. She ascends on the throne of nobil­i­ty as she pass­es the dif­fer­ent phas­es of a woman. My focus here is only on her posi­tion as a wife and main­tain­ing the mar­riage bond.

It is men­tioned in Bukhari that at the time of Jaahiliyah a man could divorce his wife for any num­ber of times and take her back as he wished to. Any noble woman would under­stand the trau­ma of this prac­tice. She can nev­er be focused in life. There is absolute­ly no dig­ni­ty or hon­or for her if she is repeat­ed­ly divorced. Her posi­tion as a wife is always in sus­pense. She was no more than a cheap com­mod­i­ty, in fact worse. The rea­sons for that are clear as she is a human being with feel­ings equal to a man. Shari­ah has restored her with a right of dig­ni­ty and restrict­ed the unlim­it­ed num­ber of divorces. If a man wants her as a wife, he must under­stand the com­mit­ment of mar­riage and the respect of his wife. He knows ahead of time that the lim­it of divorce is three. Shari­ah has advised him that divorce is the most abhorred thing. Rasu­l­ul­lah (sal­lal­lahu alay­hi wasal­lam) said, Ver­i­ly the most abhorred among per­mis­si­ble things is divorce. The hus­band must exer­cise restraint and tol­er­ate his wife just as she too, tol­er­ates him.

If he divorces her express­ly one or two times (Talaq-e-Raji) in one sit­ting or in dif­fer­ent sit­tings then he can uni­lat­er­al­ly take her back with­in the peri­od of iddat. He can­not take her back there­after with­out her con­sent. This is also the rul­ing if an indica­tive divorce (Talaq-e-Ba’in) was issued. It is now her inde­pen­dent right. She must decide whether she wants to live with the man that divorced her and abused her. Once he gives her three divorces, he just can­not have her back. Now it is not even her right to decide to go back to her ex-hus­band. Shari­ah steps in to pro­tect her dig­ni­ty and hon­or and stop abuse against her. A woman by nature gives in more often and eas­i­ly than a man. It is pos­si­ble she may sim­ply sub­ject her­self to her abu­sive hus­band. Shari­ah con­sid­ers her nature and now throws a strong armour around her. She now is the sole right of the Shari­ah. Now nobody owns her. Her abu­sive hus­band needs to be treat­ed with con­tempt. Any noble man who knows the con­se­quences of three divorces and the process to have his wife back will nev­er divorce his wife. He will respect her and tol­er­ate her. The pur­pose of halalah is clear­ly mis­un­der­stood. It is incor­rect­ly regard­ed as an unjust pun­ish­ment to the divorcee. In fact, the insti­tu­tion of halalah is to pro­tect a woman against the abuse of divorce. If a man can­not respect his wife, he is not wor­thy of respect. He must be taught the hard way. This does not mean that halalah is a pun­ish­ment to the woman.

Shari­ah does not impose on her to remar­ry. It is her right. She can choose not to re-mar­ry. If she does mar­ry, it should not be to mere­ly ful­fill a pre­req­ui­site to revert to her ex-hus­band. It is to be a mar­riage of hon­or and dig­ni­ty, a per­ma­nent and nor­mal mar­riage with all its rights. If this mar­riage hap­pens to be unsuc­cess­ful, then again she has the right to mar­ry her ex-hus­band. She does not have to if she choos­es not to remar­ry him.

It is clear from the above expla­na­tion that the con­cept of halalah is:

1. To pro­tect the wife from the abuse of her husband.
2. The hus­band should under­stand the impli­ca­tions of three divorces and exer­cise restraint.
3. If he does not con­tain him­self, he can­not be giv­en an unlim­it­ed right of divorce.

The above expla­na­tion and sub­se­quent points ful­fil you. Now, revert­ing to your points;

1. You enquire why must she con­sum­mate her mar­riage with her new hus­band. Our response is why not. Why did she re-mar­ry? Just to legit­imize her return? She should not enter into a mar­riage with that inten­tion. If she does so, what rem­e­dy is there for a woman who does not accept the dig­ni­ty grant­ed to her by Shari­ah? She is sub­ject­ing her­self to a process for her abu­sive ex-husband.
2. You state you will nev­er return to a woman dirt­ied by anoth­er man. If you feel like that, you can be a per­fect hus­band and nev­er divorce your wife for her to be “dirt­ied” by anoth­er man. If you do divorce her, why would you be wor­ried about her being dirt­ied for you? You did worse to her by your abuse to her than her mere­ly being dirt­ied. An abu­sive hus­band needs the psy­cho­log­i­cal pun­ish­ment of halalah. If the ex-hus­band feels she is dirt­ied, he does­n’t have to take her back if he does­n’t want to. Nobody forces him to do so. It is his choice. He must decide. If he takes her back, why call her dirty?
3. You enquire that her sleep­ing with anoth­er man cre­ates more temp­ta­tions for her. That is cor­rect. The hus­band must real­ize all this ahead of time and exer­cise con­trol. A chaste woman will only ful­fil her­self in a legit­i­mate avenue. She will look after her chasti­ty and respect. We are dis­cussing the preser­va­tion of the dig­ni­ty and hon­or of an Allah fear­ing chaste woman, not just any woman.