The Controversy in Brief
The stand of the Council of Islamic Ideology, Pakistan, is that giving irreversible divorce at the first occasion of separation (i.e. pronouncing divorce three times) is a punishable offense because it is against the Qur’an, and it inflicts immense suffering on the women and children.
To us, all these claims—instant triple divorce is (i) punishable, (ii) against the Qur’an, (iii) inflicts suffering on the women, (iv) inflicts suffering on the children—are wrong. The reality is as follows:
The urge to divorce is subjective, STRONG (even may be overwhelming), and directed to get rid of one’s discomfort with one’s spouse. Therefore, thoseMEN who give a triple divorce on firm realization that their relationship has become so uncomfortable that they do not want to have it now and in future as well, they must not be blamed for any impropriety; it is the level of discomfort GOD has given the right to irreversible divorce for. However, since men are in general prone to give three divorces impulsively (not on sound judgment), both men and women should be educated about marriage and divorce. Even then, if any of these men pronounces a triple divorce, he must not be punished because (i) GOD has given him the RIGHT to three divorces, and (ii) there is no way to claim that his SUBJECTIVE discomfort was not enough to warrant three divorces.
NB:
Women should also be educated because they usually
either play a provocative role
or ignore the threat of incoming divorce.
Regarding divorced WOMEN, the Sustainer God has not created women to live at the mercy of their ex-husbands; so, they must not be blamed for these women’s sufferings after divorce. As a matter of fact, their sufferings nowadays are due to their own inapt attitude, their grabbing children, Muftis and judges’ wrong decisions about child custody, their close relatives’ reluctance to support them, the people around them stigmatizing them, people taking advantage of their insecure position, and the governmental inaction to redress the social and workplace injustices being done to them.
Regarding the CHILDREN, custody must be given to their fathers; this is the law of the Qur’an (2:233, 65:6-7). This continues fathers’ day-to-day involvement in and support for their upbringing, health, education, and career. And mothers loose nothing in it. They have visitations rights; and once these children are grown up and in case they need their help, it is incumbent on these children to serve their mothers too.
The Council’s Caliber is Questionable
(I) The right of two reversible and one irreversible divorces is allotted by God at the time of the first marriage. So the pertinent questions are:
(a) Why is the right of irreversible divorce given early on,
while it is to be used at the third occasion of divorce?
(b) Is it sensible to grant the right of irreversible divorce
at a time when it is unlawful to use?
(c) Isn’t it a legal contradiction to allow the right of irreversible
divorce and to disallow its use at the same time?
In fact, the conferment of the right of irreversible divorce at the time of the first marriage is clear evidence that it may be used at the first occasion of separation. But this clear evidence is not visible to the scholars of the Council of Islamic Ideology, Pakistan. Doesn’t this show that they are incapable of juristic or ideological works?
(II) If only one divorce is lawful to give at one occasion, Wise God should have given the right to only one divorce at the time of the first NikaH (marriage service). And after this right is used up and reunification is effected, Wise God should have conferred the right of the second divorce at the time of the reunion. And when this second divorce is employed and reunification is committed, Wise God should have granted the right of the third divorce (which is irreversible) at the second reunion.
While this STRAIGHTFORWARD distribution of divorce-rights—the right to one divorce at the first marriage as well as at each reunification—is well within the human capacity to create, why is it NOT present in the divine scheme?
This apparent mismatch points to one of the two possibilities:
either God is unwise,
or today’s popular scholars do not get the divine wisdom.
Therefore, it is on the scholars of the Council of Islamic Ideology, Pakistan, to clarify which party is BRAINLESS: God or them?
(III) These scholars do not realize that all causes of divorce are NOT ALIKE, they differ in nature and severity, and some of them are so discomforting that man would not like to have the relationship now and ever.
On top of it, this discomfort is purely subjective and situation based. Therefore, a law cannot decide on whether revocable or irrevocable divorce is appropriate to get rid of one’s agony. Rather the person himself should be given the power to decide.
(IV) God gives great importance to honest communication.
This follows that if there is FIRM decision that the current relationship is so discomforting that reunification shall not happen, it is better to express this decision by giving irreversible divorce. And one MUST NOT leave the woman and the two families and friends in confusion.
But the Council of Islamic Ideology (Pakistan) is compelling people, by threatening to punish them, to hide such decision on the name of Qur’anic law. How can God promote being untruthful or secretive about the decision that impacts one’s mate and the two families?
The Council’s More Irregularities
God better knows whether the scholars of the Council of Islamic Ideology (Pakistan) are acting in arrogance that they have extraordinary insights as compared to what has been for 14 centuries, or they are deliberately incorporating in Islam the feminism of today in order to appease the modernists and secularists. We are plainly pointing out the irregularities that are visible.
(1) January 4, 2018; DawnNewsTV; Report by Qalb-e-Ali:
“The Council of Islamic Ideology (CII) supported the imposition of punishment for giving three divorces at an occasion. Speaking to the media yesterday, Dr. Qibla Ayaz (the chairperson of CII) expressed his opinion on the recent verdict of the Indian Supreme Court against instant triple divorce.”
It is very painful that the Council of Islamic Ideology (Pakistan) has agreed to the Indian top court’s verdict by its three non-Muslim judges—the decision was 3:2; the Muslim judge disagreed and so did the Sikh judge (the chief justice); the bench comprised 5 judges of different religious orientations to offset bias against Islam. Technically, there should have been equal number of Muslim and non-Muslim judges to neutralize the bias. Anyway, the majority judges wrongly claimed that an instant triple divorce is not in the Qur’an, so it is punishable.
The Islamic council’s agreement with the Indian Supreme Court has dishonored all the Muslim jurists of the past who never punished for pronouncing three divorces instantly. Now non-Muslims may pick up the lead from the Council of Islamic Ideology (Pakistan) and say that even on common subjects like marriage and divorce, the understanding of Quranic verses by all the Muslim jurists of the past (the Supreme Court made no reference to Hadith) was poor and wrong. Therefore, Islam is practically not the system of the Qur’an but the system of Muslim jurists who failed to understand the Qur’an. Furthermore, in the Family System of Islam, men have been treating women as toys for the last 14 centuries.
What comment on this performance of the council
is appropriate, we are leaving it to the readers.
<p(2) In divorce process in the US, Canada, Australia, New Zealand, all the time taken is associated with the court’s processing of the petition as well as reaching verdicts on the disputes about alimony, asset division, child custody, child support, etc. When the courts of the developed world do not stipulate a time-frame to rethink or reconcile, from which principle of justice it should be incumbent in Islam?
Logically, when someone does not want to live with his/her spouse, why is he/she be compelled to reconcile?
(3) September 27, 2018; DawnNewsTV; Report by Javed Hussain:
Speaking to the media after the council’s several-hour long session, Dr. Qibla Ayaz (the chairperson of CII) said the meeting considered setting up sentences for the perpetrators of the offense of instant triple divorce … and there already exists the approval to declare it punishable. Women and children are badly affected. And they also have negative effects on health and education.”
Here, the chairman reminded of the APPROVAL of the council’s former members to declare this act punishable; he did not say that the PROOF of this offense already exists. It exposes their mindset that their APPROVAL is good enough to convict a person, and the PROOF of the offense is not necessary at all.
Is it right to sentence people on the APPROVAL of some scholars, rather than the PROOF of a crime?
(4) Please note that in the several-hour long meeting, the council could not find evidence that the act of instant triple divorce is punishable—while everyone comes to the meeting after his homework. And this failure has not been in this meeting alone, but for many years the council has failed in this pursuit. This continued failure of the council is clear evidence that this act is not punishable.
(5) The next point in the chairman’s talk is:
“women and children are badly affected.”
Let us take the case of women first:
The act of an instant triple divorce can be regarded as an offense only if it is the duty of a man to take care of his woman life-long. But this is not the case. A man does not have any obligation toward the woman if divorce happens. Therefore, how is a husband responsible for the hardship of his ex-wife after divorce?
Women’s suffering is an illegitimate ground which was ironically upheld in the Supreme Court of India too. According to India Times of Aug 22, 2017 (reported by Dhananjay Mahapatra):
“The SC said triple talaq violates the fundamental right
of Muslim women as it irrevocably ends marriage
without any chance of reconciliation.”
It is a joke that women have the fundamental right that men must leave a scope for reconciliation after divorce. God knows from where these judges have learned the fundamental rights. And the Council of Islamic Ideology, Pakistan, supported this verdict; it is pathetic.
Because of the influence of Hindu culture, it is common in the subcontinent that people feel strongly about the loss of husbands’ support to divorced women. The five Muslim women who went to Indian Supreme Court also took this loss very hard, and whined about losing it—you can still watch some videos on the internet. But this continued support from a husband is not legitimate in Islam if marriage becomes discomforting to man or wife, and he or she goes to end the marriage.
The Islamic Council’s stance is also against the Qur’an:
وَإِن يَتَفَرَّقَا يُغْنِ اللَّـهُ كُلًّا مِّن سَعَتِهِ ۚ وَكَانَ اللَّـهُ وَاسِعًا حَكِيمًا
Translation: “And if both of them separate [by divorce], God will make each of them financially independent from His immensity. And God is All-Embracing, Wise.” (4:130)
But the Council of Islamic Ideology, Pakistan, claims that an irreversible divorce inflicts too much suffering on the women. So, it is on these scholars to decide who is correct, God or them?
Looking another way:
When a man refuses reunification after a single divorce (which is considered just by all Muslim scholars and the whole world), the woman suffers the same woes what the chairman and the Indian Supreme Court have referred in connection with an instant triple divorce. Therefore, calling a single divorce to be just while a triple divorce to be unjust is merely a double standard.
<p(6) Now let us look at the alleged suffering of these children:
A husband, who is the head of the family institution, divorces (separates) his wife and not his children. Therefore, the children must keep belonging to father’s institution as they did before. This is why the Qur’an gives the father the right to child custody from the day one of separation. If the man and the woman AGREE, he will put the baby in her care, NOT custody, for the period of suckling ONLY. And he will pay for the child care. In Islam, child custody and child support are not two different things but one. And mother has the child-visitations rights.
NB: In Western system, man and wife are equal; therefore, children are usually placed in mothers’ custody for better nursing. To the contrary in Islam, man is the head of his home institution. Therefore, it is against intellect to give children to the divorced wife because it would amount to demolishing his own institution by removing his unbearable secretary, the wife. A divorce is brought about to remove an intolerable disturbance from home (a place of peace), not to break it down.
If a father refuses to take the child custody or ignores his children in his custody or does not pay his ex-wife during her suckling period, it is a punishable offense (criminal neglect).
However, in most cases the suffering on these children befalls because the mothers hold them. Note the wording of Mr. Chairman: “Women and children are badly affected.” When women in financial distress are bent on keeping children in their custody, suffering on these children is bound to come. Here, all the blame goes to these women, their families, the Muftis, and the Islamic Ideological Council, Pakistan.
Let us look at the verse on child custody:
وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ ۖ لِمَنْ أَرَادَ أَن يُتِمَّ الرَّضَاعَةَ ۚ وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ ۚ … وَعَلَى الْوَارِثِ مِثْلُ ذَٰلِكَ … وَإِنْ أَرَدتُّمْ أَن تَسْتَرْضِعُوا أَوْلَادَكُمْ فَلَا جُنَاحَ عَلَيْكُمْ إِذَا سَلَّمْتُم مَّا آتَيْتُم بِالْمَعْرُوفِ
2.233: “Mothers will suckle their children for two whole years for whoever the MAN intends to complete the suckling. And upon HIM THE CHILD BELONGS TO (i.e. father) is mothers’ provision and their clothing in a seemly manner … And on the (father’s) HEIR is [incumbent] the like of that (which was incumbent on the father, in case the father dies) … And if you men intend that you get your children breastfed by a FOSTER mother, there is no sin on you provided you pay [her] what you agreed (to give her) on a reasonable basis.”
Please note in Ayah 2.233:
(i) word FATHER is not there. Rather in place of FATHER, there is a legal phrase HIM THE CHILD BELONGS TO. This wording in the divorce law clarifies that child custody belongs to the father
(ii) if the father decides to suckle his child by the divorced mother, only then he will give the child in her care. That is, the mother does not have any legal right to get the child in her custody or care by herself.
(iii) if the child is given in mother’s care, the expense of the care-service will be on the father. In Islam, child custody and child care (expenses) are not two things but one.
(iv) if the father dies, the expense will be on a father’s heir. As showed above that child custody and child care (expenses) are one thing in Islam, the heir will take custody of the orphan child. That is, even in case of the death of father, the child will not go in mother’s custody.
Logically, man is the head of the family institution in Islam. As a result, once wife is removed from his institution, she has no right to break his institution whether the man is alive or dead.
(v) the father can also arrange a foster mother to breastfeed the child. That is, the divorced mother has no legitimate right even to suckle the child if the father is not ready for it.
These child custody-and-care-rules are clearly written in the Qur’an, and no Mufti or judge is supposed to overrule it. But practically it is happening to the contrary. The divorced women hold the children, their families aid in holding them, and Muftis and judges also decide for the children to go into mother’s custody. And the Council of Islamic Ideology, Pakistan, is not against this practice which runs counter to Quranic injunctions (2:233, 65:6-7).
The STIPULATION that “three divorces can be given at three different times [only]” is not in the Qur’an. It is also well known fact that the cases of instantaneous three divorces were presented to the Prophet (peace be upon him) for verdict, and he, in none of them, said that three divorces could be pronounced at three different occasions only. Therefore, Muhammad Khan Sherani’s assertion is an invention.
(8) Along with his associates, Muhammad Khan Sherani went against the edicts of the last three upright caliphs, the Mufti Sahaba (the prophet’s companions) of their times, and the Four Jurists. He wants to make the so-called enlightened peoples’ opinion the law of the country. Will it be right to do so on mere rhetoric?
Note:
Since Hadith-ist (Ahl-e-Hadith) consider three divorces at a time as one divorce, it makes no sense that they would demand any punishment . Therefore, behind punishment is the so-called enlightened minds.
(9) If “three divorces can be given at three different times [only]”, it means only one divorce takes effect at one time legally. This is exactly the stand of Hadith-ist (Ahl-e-Hadith). Then, what is a punishment for? Is giving one legal divorce a crime? Or, uttering two extra divorces which have no legal standing a crime?
(10) According to the former chairman, Muhammad Khan Sherani, the council left the punishment on a court of justice to decide. In this case, different judges will decide for different punishments at their discretion. When the nature of the offense is the same, is it justice to punish one man less, the other man more, and the third man even more?
(11) September 6, 2019; Newspaper Jang:
“The Islamic Ideological Council recommended three divorces, given at one occasion, be punishable. A meeting of the Standing Committee on Law and Justice of the National Assembly was held in Parliament House, Islamabad. In the meeting, the Islamic Ideological Council recommended the legislation in accordance with the Shia and Sunni sects for inheritance and divorce. During the meeting, Federal Minister Farogh Naseem said: “if there is any reference to declare an instant triple divorce a crime, then we could legislate. If the Islamic Ideological Council confirms the simultaneous three divorces are indictable, then we will proceed to enact.”
The remarks of the Minister of Law show that the representatives of the Islamic Ideological Council, who attended the meeting of the Standing Committee, neither gave any reference of the simultaneous three divorces being punishable, nor did they confirm a sentence on any other legitimate ground. Is this performance of the council academically satisfactory?
(12) Regarding “the council recommended that three divorces at a time be punishable”, it is not clear whether the given three divorces would be legally considered three or one.
If they will be considered as three, it means that three divorces at a time take effect legally. When Law accepts the legality of instant three divorces, how can the same be called against Law and punishable?
If they are going to be considered one, punishment will still be contrary to justice. This has been shown in item 9.
(13) Regarding “the council recommended the legislation in accordance with the Shia and Sunni sects for divorce”, a penal legislation for the Sunni Sect will be inherently improper and inadequate.
The First Weakness:
It is not clear what would be the consequence if a Hadith-ist (who is counted in Sunni sect) utters three divorces at one occasion. It is legally considered to be one by them. So the question is, “will he be punished too?” If not, any Sunni can take the ground that he follows the divorce law of Ahl-e-Hadith, and thus, would escape punishment.
If a Hadith-ist would also be punished by the new law, it will amount to punish someone for a single legal divorce, which would be absurd. Therefore, a UNIFORM penal legislation for Sunni sect is not possible.
The Second Weakness:
If a Hanafi Muslim wants to divorce her woman forever, he would just divorce her once. Then he would neither take the woman back during her holding period nor remarry her thereafter. This will be an instant triple divorce in effect, but the man will escape the enacted punishment.
The Third Weakness:
If a Hanafi Muslim wants to divorce her woman forever, he would divorce her once in January, for example. And after a monthly period of her, he would take her back in February. Then, after a monthly period of her, he would divorce her again in March to take her back after a monthly period again in April. Finally, after one month, he would divorce her the third time in May. In this way, he will divorce her wife forever, but the total period would be taken 7 months instead of 3 months. So the proposed penal law would just create an added inconvenience to the woman, and will fail to safeguard a marriage if the man wants to legally break it permanently anyway.
(14) During Prophet’s time, the cases of instant three divorces were brought to him (peace be upon him) for decision, and he never punished anyone for doing so. If a sentence is considered to be legal in Islam today, will it not show that the rulings by the Messenger were wrong?
(15)A punishment is warranted today on the ground that it breaks the backs of the women and children. If this is true, does it not blame the Messenger (peace be upon him) that he did not take any notice of the criminal neglect of these women and children, rather let the cruelty spread by not punishing those men who perpetrated this abuse?
In this way, the Prophet (we take refuge of God) gave free hands to men for ruining the lives of divorced women and children. Will it not make Islam appear to non-Muslims as inhuman for women and children?
NB:
This column has become so long that Qur’anic divorce-law as well as the stance of the Prophet (peace be upon him) and the legislation by Caliph Umar (may God please with him) will be published in one or more separate articles.
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