KARACHI: The Indian Supreme Court delivered a landmark judgment on Tuesday, terming instant triple talaq by Muslim men to their wives unconstitutional and un-Islamic, and asked parliament to legislate on Muslim marriage and divorce in six months.
The judgement was delivered by Justice K.S. Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice Abdul Nazeer, who all belonged to different faiths of Sikhism, Christianity, Zoroastrianism, Hinduism and Islam.
The issue gained attention of the world media after Shayara Bano, whose husband had used the three words in one go to divorce her in 2015, approached the court.
Here what needs to be known is that Pakistan’s Muslim Family Law Ordinance, which was enacted in 1961, protects the rights of Muslim women and does not let three talaq take place at the same time.
Throwing light on the issue, Justice Nasir Aslam Zahid told Dawn it was always good, sensible and just to safeguard liberties of every individual.
“One should serve first talaq and then wait for four months to deliver the second. It should be done gradually so that no party suffers.”
Elaborating the matter further, he said: “Our permanent family institutions get destroyed because of short and temporary anger of man. We should not let it happen.”
Known human rights lawyer and social activist, Asma Jahangir, said there was no concept of three instant talaq in Pakistani law and the Muslim Family Law Ordinance did not support it.
“Divorce gets validated only after 90 days and it cannot be validated if the woman is pregnant,” she said.
“Justice Abdul Rashid Commission of 1958, another commission which was formed during the time of prime minister Bhutto in 1976 and Zari Sarfraz Commission of 1984 supported the same view that [a] man should not be allowed to divorce his wife at one stroke.”
Advocate Mohammad Farooq, when contacted, said: “A man is required to inform the union council after giving talaq to his wife. The UC then tries to mediate by sending three notices from time to time to the parties. If man and woman do not reconcile, divorce takes place.”
The chairman of the Muttahida Ulema Mahaz Pakistan, Allama Abdul Khaliq Faridi, said there were different views prevalent in society regarding the process of talaq but the law of the land clearly did not back three instant talaq.
“The Al Azhar University of Cairo, Egypt, declared in 1929 that three talaq given at one time should be considered one. Even Justice Shafi Muhammadi of the Federal Shariat Court declared three talaq un-Islamic.
“Our family laws were formulated during the government of Ayub Khan. It was decided then that three talaq could not occur immediately but there would be a period of 90 days.
“The only purpose of giving time to a divorcing couple is to save the institution of marriage because the ultimate sufferers of divorce are their children.
“We need to go back to Quran and Sunnah and learn from them,” he said.
Human rights campaigner Farzana Bari hailed the decision of the Indian Supreme Court and termed it upright.
She said there were several scholars in the country who did not believe in instantaneous three talaq.
“There is a need to educate the masses that three talaq cannot take place at the same time in Pakistan. People should be taught at mosques, especially during Friday sermons, that there is always a chance for a man to reunite with his wife if he has not served three talaq with gaps in between them.
“No divorce takes place in Pakistan until notices are sent on three consecutive months,” she added.
Mangla Sharma, who is a member of the Managing Committee of the Pakistan Hindu Council and head of its women wing, said: “There is no concept of divorce in Hinduism, as couples only separate. In case of separation, man is supposed to provide lifelong maintenance to his wife if she doesn’t remarry.”
Considering the above, Pakistan’s Muslim Family Law Ordinance of 1961 could be a guide for Indian parliament to legislate on the issue of triple talaq.
Published in Dawn, August 24th, 2017
