Question: Why is it happening? Why are women protesting the abolition of triple Talaq when it is something that they should welcome?

Answer: Emotional knee jerk reactions born out of fear. You see the problem is that Modi and the Government have a very bad image, quite rightfully. So, anything that is seen as coming from them will immediately get rejected. Also, we have always had a high aversion to anyone who we consider an ‘Outsider’ saying anything about our law, more so about trying to change it. 

People must distinguish between two facts: Nobody can change a law that someone else made. But they can say that it will not be recognized in the land where they rule. That is essentially what the Supreme Court means when it says that it doesn’t recognize triple Talaq. It is not changing the law because within the Islamic Shari’ah it has no authority to do so. However, it is saying that it, as the Supreme Court of India, doesn’t recognize this law, will not follow it, will not rule in accordance with it, will reject it if a case comes before it and declare the divorce, so given, to be invalid. All this, the Supreme Court, is at full liberty to do. To illustrate, what do you think will happen if an American Muslim gives triple Talaq to his wife in America and she goes to court? The judge will rule that it is invalid. Will you say that American law has banned triple Talaq? They will do the same with Talaq Ahsan. With Nikah, with inheritance, with all Islamic laws as they don’t recognize them as valid in their land. 

So also in the case of the Supreme Court; what ‘not recognizing or banning’ means in effect is, that if a man gives his wife Talaq by pronouncing it thrice in the same sitting and she accepts it, there’s nothing more to be said. But if she goes to court, it will be overturned and not recognized. This is already happening. That is what I meant when I mentioned the Shamim Ara vs State of UP case of 2002. The Supreme Court declared the Talaq given in the past invalid. What was that Talaq? Triple Talaq. What the AIMPLB should have done is to implead itself and challenged this judgment. They didn’t do that. That remains to this day, 14 years later. Subsequently the courts have ruled according to this judgment multiple times and there is not a single instance where a court ruled that the triple Talaq given in one sitting was valid. 
That is also what is meant when they say that Supreme Court ‘banned’ triple Talaq. Banned means that the court has declared this law to be invalid in its sight – meaning that the court doesn’t accept it as a law. The court can’t go into every house to enforce it. But if a case comes before it, this is what it will rule. As I said, this is already happening and anyone who wants to test it, is welcome to go to court to see if it will protect the triple Talaq in one sitting. 

Muslim women are protecting the triple Talaq because in public they don’t want to look like they are criticizing Islam. I am with them in this respect. In public I also say, ‘Hands off’, to everyone else. However, what must happen in private is some education, which is lacking. Education about what marriage is, what Talaq is, about the rights of inheritance of women (brothers swallow their sisters’ rights and their wives – who are also women – support them). Education about treatment of women, about domestic violence and men oppressing women. Education about the Shari’ah itself that there are two parts to it – A Divine part and a Juristic part. Most people don’t understand this and think that everything in the Shari’ah is directly revealed in the Quran. It is not. Ijtihad has always played a very big role in the evolution of the Shari’ah. It is only in the last 150 years of so that the doors of Ijtihad have been shut. Don’t ask me why.

That is incidentally where the so-called Ghair Muqallideen came from. When you shut the doors of Ijtihad, everyone becomes a Mufti. When those who have the knowledge and the responsibility to do Ijtihad refuse to do it (whatever be their reasons) then those who have neither the knowledge nor the authority, start to make rules. Whose fault, is it? When Muslims talk about reforms in the Shari’ah, nobody means that the Quranic or Divine part should be changed. If any Muslim says that, then they have denied the validity of the Qur’an and thereby they have left Islam. But the same sanctity doesn’t apply to the Juristic part. The Imams of Fiqh are not Allah or His Messenger. They are Ulama. Their service to the Ummah is unquestioned. And that service is that they did things which were essentially not present at the time of Rasoolullah to make the application of the Divine law current and easy for people. And they ruled on matters which were new and for which you can’t find answers in the Qur’an and Sunnah. While doing this naturally the basic rule is that the new ruling must not violate the Word of Allah or the Ruling of His Messenger

Imam Shafee codified the Usool of Fiqh and built his Fiqh and legal teachings on the foundations of the principles and methodology he expounded in his book Ar-Risalah. In his book, al Bahr al Muhit, al Zarkashi (d 794 AH) devoted a chapter to this, in which he said: “Al Imam al Shafi’i was the first to write about Usul al Fiqh. He wrote the Risalah, Ahkam al Qur’an (Legal Interpretations of the Qur’an), Ikhtilaf al Hadith (Conflicting Hadith), Ibtal al Istihsan (The Invalidity of Juristic Preference), Jima’ al ‘Ilm (The Congruence of Knowledge), and al Qiyas (Analogical Reasoning)-the book in which he discussed the error of the Mu’tazilah group, and changed his mind about accepting their testimony. Then, other scholars followed him in writing books on al Usul.” This is one of the greatest example of Ijtihad. Another is the classification of the Sunnah into Muakkadah and Ghair Muakkadah.
Imam Abu Hanifa introduced the term ‘Wajib’, differentiating it from Fardh. There are many other examples of Fiqhi terminology that didn’t exist at the time of the Sahaba but which today we accept unquestioningly. All these are examples of the very dynamic and healthy tradition of Ijtihad in Islam. 

The Imams of Fiqh introduced terms like Makrooh and further, Makrooh Tahreemi wa Tanzeehi. The Sahaba would have looked at you in amazement if you mentioned Makrooh Tahreemi wa Tanzeehi to them. For them there was only Halal and Haraam. The concept that something can be prohibited yet not punishable in the same way, was foreign to them. Either something was permissible and you did it. Or it was not and you abstained. But that something was not ‘really’ permissible but you could still do it if you liked and you would not be punished in the same way as you would have been if it had been Haraam; would have been totally foreign to the Sahaba. The classic example of this is the difference of opinion about smoking between the Ulama of India and the Middle East. For the latter, it is Makrooh Tahreemi. For the former it is Haraam. However, cigarettes are not mentioned in the Quran or Sunnah.

Interestingly while claiming that the doors of Ijtihad are shut, modern Ulama have chosen to make Ijtihad in some areas. For example, in ruling that women are not allowed in Masaajid. Today this is the standard ‘ruling’ of all Hanafi and Hanbali Ulama. However, Rasoolullah’s hadith in Bukhari states clearly, ‘Abdullah ibn Umar ® narrated from Rasoolullah who said, ‘Do not stop the women slaves of Allah from the Masaajid of Allah.’

In another narration Salim ibn Abdullah ibn Umar said, I heard Abdullah ibn Umar ® say, ‘I heard Rasoolullah say, ‘Do not stop your women from the Masaajid when they ask your permission to go there.’ His son (Abdullah ibn Umar®’s son) Bilal said to him, ‘By Allah we certainly will stop them.’ Abdullah ibn Umar ® turned towards him and cursed him in very bad language, I never heard him abusing anyone like that and then he said, ‘I am informing you of something from Rasoolullah and you say, ‘By Allah we certainly will stop them?’ In yet another narration also in Bukhari, Abdullah ibn Umar ® said, ‘Rasoolullah said, ‘Do not stop the women from going in the night to the Masaajid.’ 

There is plenty of evidence to show that women and children went to the masjid in the time of Rasoolullah and the Khulafa Rashida and that it was only much later that the prohibition was brought about. The Imams of the Zahiri school like Ibn Hazm and others have held that the command to establish Salah doesn’t differentiate between men and women and so both are obliged to pray and to pray in the masjid if that is possible. And that to go against the Hadith of Rasoolullah to allow women to go to the Masaajid, claiming that conditions had changed, was not permissible.

It is later that others ruled based on various reasons they gave and the basis of a Hadith where Rasoolullah said, ‘It is preferable for women to pray at home’, that it is not permissible for women to pray in Masaajid. They did this despite the many Ahadith where Rasoolullah commanded that women must not be prevented from going to the Masaajid even though it is well known that a command supercedes a permission or preference. I will not go into the juristic arguments and justifications for these rulings or say anything about what is right or wrong, but I have quoted this to show that there is a difference between Divine command and juristic law. This means that the door of Ijtihad was wide open. So, what happened to that suddenly?

That is the question in the minds of all thinking and reasoning Muslims and on the tongues of those with the courage to verbalize their thoughts. I am quoting this case as one which proves that Ijtihad was and is done to this day when it is seen as necessary. I submit that in the case of triple Talaq it is certainly necessary. The ruling that triple Talaq in one sitting is valid, is itself Ijtihad and it was done to help women and punish men. So, what is the problem with changing it and going back to the ruling in the Qur’an and Sunnah when we see that the very purpose of this ruling (to punish errant men) is no longer being achieved? What is the need to stick to a Bid’a (Talaq-e-Bidat) when we have a Sunnah (Talaq Ahsan) which we can and should follow?

In short if our Fuqaha exercise their authority to make Ijtihad and re-look at the issue of triple Talaq, which is not a Divine ruling but a juristic (Fiqhi) one, the matter can be easily resolved. Imam Ibn Taymiyya did that and ruled against it already. Interestingly, as we speak, Hanafi Ulama send cases of triple Talaq to Ahle Hadith Ulama to be resolved knowing well that they will rule that the three Talaqs are equal to one and so the marriage is not dissolved. Yet they (Hanafi Ulama) will not adopt this ruling publicly. Even more amazingly Ahle Hadith Ulama have sided with the Hanafi Ulama of the AIMPLB in this case, thereby going against their own ruling which they follow. What that does to their credibility is something that only they are impervious to. None so blind as those who choose to blindfold themselves. Truly the ways of the ‘learned’ are wondrously mysterious. May Allah have mercy on us all.

Triple Talaq as it is used in India is an oppression of women. The arguments which have been used in its favor make no sense at all and have made us the laughing stock of the nation. That the number of women affected by it are few or many makes no difference. A law must be just for everyone. People may ignore the law and be unjust and they will then be culpable. But if the law is itself unjust, then you can’t fault people for what happens. Triple Talaq in one sitting goes against the Ayaat of the Qur’an and the rulings of Rasoolullah. We need to rule according to the Qur’an and Sunnah. Whatever happened in the past which led to triple Talaq being recognized (we are all aware of the historical issues) was valid then in the circumstances of 7th century Arabia. Its purpose was to help women and punish errant men, as I have mentioned earlier. This is not happening in India any longer so that very purpose (Maqsad) of the Ijtihad is not being fulfilled. To treat triple Talaq as one or to remove it altogether will once again fulfill the purpose of the ruling which was to protect women from being exploited. It is the duty of our Ulama to consider this seriously and act. 

Only Divine law is valid for all times and places. Juristic law is changeable and came into being because change is permissible. If juristic law is not working in a place and instead of protecting the very people it was designed to protect, has become the means of their oppression; then it must be changed. It is our Ulama who must change it. Nobody else has that authority. I hope we can persuade our Ulama to do what they also know they must do.

It is shameful for us as Muslims in India that a secular body like the Supreme Court needs to intervene to force us Muslims follow the law of our own religion.