The marriage plot

This piece is by someone who is neither a mufti (a scholar, who by training is competent to issue religious decrees or fatwas) nor a faqih (Islamic Jurist), but he is certainly a mustafti (a person who seeks answers of a religious nature). It concerns the November 1 ruling of the Jammu and Kashmir High Court, which comments on the Muslim custom of talaaq. The judgment, delivered by Hasnain Masoodi, raises some basic questions about the custom of arbitrary triple divorce.

Such questions are not new and have always been a subject of debate among Muslims. Champions of women's rights as well as a section of orthodox Muslim scholars have drawn attention to the fact that the permission for triple divorce was granted in the days of the second caliph of Islam, Umar. It was originally meant to protect women from exploitation by men. Now that it has become a source of exploitation, why should we not go back to the Quranic injunction that is considered to be ahsan (the best way) by all our scholars and jurists?

It is said that the act of divorce, though permissible, was not liked by Prophet Muhammad. However, in desperate situations, it is better to dissolve the marriage. In such a situation, according to the Quran, the two parties should each appoint an arbitrator to assess the situation on their behalf and carve out an acceptable way of reconciliation or facilitate a divorce.

The Quran tries to protect the interests of the woman. For instance, if a husband divorces his wife while she is menstruating, the divorce is considered invalid; it reasons that since the wife is not in a position to fulfil the husband's physical needs, his decision to divorce her might have been made on an impulse. There are other provisions to facilitate a reconciliation even after the decision to separate. Masoodi's judgment is quite consistent with the humane approach of Islam. That is probably why, for the first time, even traditionalists and hardliners have not openly come out against it.

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