Arun Shourie on Divorce in Islam

“The question whether in the particular circumstance the wife shall stand divorced or not is ever so often put alongside the question whether in the analogous circumstance a slave would be freed or not: if in those circumstances, according to some previously settled ‘principle of Islamic jurisprudence’, the slave would be freed, the wife stands divorced; if in those circumstances the slave is to continue in bondage, the wife continues as wife.... That perceptual equivalence—between the wife and the slave—marks the Durr-ul-Mukhtar too. There is not a trace of concern for what shall pass on the wife. The concern is with the power of the husband, the concern is that he should not fall short of having his oath prevail.”

“The net result of the much-vaunted shariah is obvious: the woman lives in the sort of dread which a non-Muslim woman cannot even imagine, to say nothing of non-Muslim males. The husband can make her continuance subject to the most humiliating and painful conditions. He can take on other wives at will, without so much as a nominal ‘By your leave’. He can pronounce a revocable talaq at a whim, and ‘resume’ her at will. That the power to resume the wife on whom he has pronounced the talaq once or twice within the iddat period is as absolute as the power to throw her out, that in fact it is but an aspect of the power to throw her out is affirmed repeatedly by the ulema. The wife’s consent is not needed at all, they declare.”

“One can safely presume that Muslim women would want to be liberated from the extreme insecurity it foments as much as non-Muslim women would if the latters’ husbands had been given the same power. The Muslim husband can scotch any thought his wife may have of expressing support for reform by declaring, ‘If you ever question the Triple talaq rule, you will be thrice divorced.’ He can go further and have her demonstrate in favour of her continuing to live in bondage. He can say, ‘Unless you join the demonstration against the Triple talaq judgment (or the Shah Bano judgment, or whatever) on Wednesday, three talaqs on you’—and unless she joins the demonstration she is out without maintenance, without rights, without any authority from which she may seek succour. And our editorialists will marvel at the miracle: so devoted are the women to the shariah, the editors will write, that they are out shouting that they would rather continue in servitude than allow anyone to touch it!”

“To begin with, the rulings of the jurists show that the husband has the total, absolute, unbridled power to tell his wife, ‘Unless you do “X”,’ or, in the alternate, ‘Unless you refrain from doing “Y”,’ ‘you are divorced’. A mere listing of the ‘X’ and ‘Y’ which the Islamic jurists have held to cause, unless complied with, full and final divorce, a mere listing of these takes one’s breath away. It shows that under the much-vaunted Islamic law of marriage and divorce, at a mere statement of the husband the wife must either reduce herself to totally submitting to the whim and fancy of the husband or stand divorced. She has absolutely no option in the matter. Indeed, once he has stated his whim or condition, the husband has no option either: he cannot ex post facto take pity or give in to the entreaties of the wife and let her stay unless she fulfils the condition he had laid down—unless she fulfils it, that is, as completely, and as fervently, and as promptly as he had specified.”

“In glaring contrast to the gloss which modern apologists try to put on the matter, Islamic jurists have faithfully followed the view of women embedded in the Quran and Hadis. They have enforced the true position: that the husband has absolute power in the matter of divorce; that he need assign no reason for throwing his wife out; that he owes the wife no maintenance beyond providing her the barest minimum in the three months following his pronouncement of talaq; and that the wife has no corresponding power. The apologists make much of the fact that in certain circumstances under Islamic law the wife can divorce herself—this, they say, is a unique facility which Islamic law alone gives to the wife. But they glide over two facts about the matter: the wife acquires this power only if the husband delegates it to her; and, the moment the wife exercises this power, that is the moment she dissolves the marriage by divorcing herself she loses even the meagre rights she would otherwise have had upon the dissolution of the marriage. Far from being a facility for the wife, the practice becomes a facility for the husband: by driving the wife to divorce herself, the husband is not only able to rid himself of her, he is able to rid himself of anything that might otherwise have been her due. The total inequality of the relationship is brought home by the hundreds of pages which the law books and the volumes of fatwas devote to what is called ‘Conditional Divorce’. In this form the husband makes the divorce contingent upon some act or event: the moment that act or event transpires, the wife is out.”

“But, to proceed. In the rulings of which the foregoing are representative the wife can survive by submitting herself completely to the whims and fancies, the commands and worse of the husband. The rulings thus entail subjugation, complete subjugation, but only subjugation. At least there is something the wife can do—namely, submit herself completely to the husband’s whims and wishes—to keep herself from being thrown out on the street. The next set of rulings entail much more—they reduce the woman to a condition of terror. For the husband may by his mere statement—a statement he may make in anger, a statement he may make just to emphasize a point, and of course a statement he may make when he in fact wants to plunge the wife into terror—the husband can make the continuance of the marriage contingent on events over which the wife has no control whatsoever. In the face of the hundreds of rulings to this effect which Islam’s canonical law books contain, to maintain, as the apologists do, ‘No religion has given a higher place to women than Islam’, is not just ludicrous, it is chicanery. Three reasons alone explain how such assertions continue to be made, and continue to be repeated in our newspapers: first, hardly anyone among us looks up, or even knows about these rulings—although they are the very stuff of the fundamental books of Islamic jurisprudence; second, echoing, and adopting as one’s own the assertions of Islam’s champions is the way to be secular in India; and third, there is the power of terror—to recall that these rulings are what constitute the truth about the position of Muslim women is to open oneself to the terrorism of Islam’s champions. While reading the rulings, one should assess whether this kind of jurisprudence leaves any room for the kinds of reform that some would like to bring about by relying on ‘the principles of Islamic jurisprudence’ themselves.”

“Whenever attention is drawn to the absolute and inhuman power that the Shariah gives to the husband to throw his wife out, to terrorize her into submission, the apologists say, ‘That is just a smear. Allah and the Prophet have declared repeatedly that of all things, talaq is the worst.’ They have indeed. ... That is all very well. But, having recounted such declarations, the apologists never explain how that which is the most detestable thing has been made so easy for the husband! For, while in theory talaq is said to be so abominable to Allah, in practice the position is entirely the opposite. The jurists repeat the counsel that divorce is something from which one should abstain. But this is just counsel. As to the power, they are unanimous: it is a power which lies with the husband, and it is untrammelled. Should the husband choose to exercise it, no one, and no consideration can save the wife. The counsel itself has the caveat invariably built into it, a caveat large enough to drive an elephant through it: you should not give talaq, the jurists say adding, except when there is need for it! In the typical instance, we read in Durr-ul-Mukhtar, one of the great works of Sunni jurisprudence, ‘And giving of divorce is permissible, according to all (the jurists) because the verses (of the Quran) are unconditional (in this respect). And it has been said by Kamal, that the most correct view is that one should abstain from it, except when there is need for it, for example, in cases of suspicion (about the character of the wife) and old age (of the wife)...’ and so on, each clause permitting that which the previous one had counselled against. In theory talaq may be abominable but in practice the husband has the power—the absolute, unconditional power, a power for exercising which he is not accountable to anyone on earth—to throw the wife out by just uttering the word ‘talaq’... The fatwas enforce these rules with the utmost rigour. They enforce two rules in addition: the rule that, faced with such a pronouncement, the wife has no recourse at all, there is no one, no authority which can intervene to save her as wife; and the rule that once she is thrown out she is entitled to no maintenance at all, save the minimum sustenance during three menstruations, that is she is entitled to nothing at all after three months are over.”