By ALI MALIK
Muslim Canon Law evolved over many centuries across various territories due to the work of scholars and jurists who would rely on the Holy Quran, the Traditions of the Holy Prophet (Peace be Upon Him), Ijma or the consensus of the Ulema (scholars) and Ijtihad or analogical reasoning. While the Shia school of thought in particular the majority Ithna Asharia School still considers Ijtihad as a continuous process, the Sunnis by and large have come to the conclusion that it no longer exists as a source of Muslim law after the sixteenth century AD.
Although it was recognised that Muslim marriage requires the consent of the partners, the modus of divorce was implied in various forms like the Talaq-e Ahsan and Talaq-e Bidah (Triple Talaq pronounced in one sitting or one go). It was only in the 19th and the 20th century that some jurists opined that Muslim marriage is purely a civil contract between two consenting adults on terms and conditions negotiable and that would include the circumstances, authority, and the mode of divorce. With the democratic system of governance being relatively new in the Muslim world it is still the scholars, Ulema, and the Muftis whose views prevail and the traditional Muslim Canon Law holds ground.
There are numerous verses of the Holy Quran that lay special emphasis on the equality of men and women. To quote a few:
[3:195] Their Lord responded to them: “I never fail to reward any worker among you for any work you do, be you male or female – you are equal to one another. Thus, those who immigrate, and get evicted from their homes, and are persecuted because of Me, and fight and get killed, I will surely remit their sins and admit them into gardens with flowing streams.” Such is the reward from GOD. GOD possesses the ultimate reward.
[4:124] As for those who lead a righteous life, male or female, while believing, they enter Paradise; without the slightest injustice.
[16:97] Anyone who works righteousness, male or female, while believing, we will surely grant them a happy life in this world, and we will surely pay them their full recompense (on the Day of Judgment) for their righteous works.
[33:35]Indeed the submitting men, the submitting women, the believing men, the believing women, the obedient men, the obedient women, the truthful men, the truthful women, the steadfast men, the steadfast women, the reverent men, the reverent women, the charitable men, the charitable women, the fasting men, the fasting women, the chaste men, the chaste women, and the men who commemorate GOD frequently, and the commemorating women; GOD has prepared for them forgiveness and a great recompense.
[40:40] Whoever commits a sin is requited for just that, and whoever works righteousness – male or female – while believing, these will enter Paradise wherein they receive provisions without any limits.
[49:13] O people, we created you from the same male and female, and rendered you distinct peoples and tribes, that you may recognise one another. The best among you in the sight of GOD is the most righteous. GOD is Omniscient, Cognisant.
A simple reading of these verses and the fact that although the institution of marriage is sacred in Islam, the manner of contracting marriage is purely contractual between two consenting adults, the terms and conditions can be and must be built into the contract of marriage including the authority and modus of divorce. In case it is not so negotiated the same can be done at a subsequent date and there is no way to imply that the authority and the mode of divorce vests with the male partner. And in case it is not negotiated subsequently the matter has to be referred to arbitration. Talaq- Tafweedh wherein the authority to divorce has been delegated to the wife at the time of contracting the marriage has been a practice among Muslims, though generally unheard of these days, and sanctioned by the following verse of the Holy Quran:
[33:28] O Prophet, say to your wives, “If you should desire the worldly life and its adornment, then come, I will provide for you and give you a gracious release.
In our society the practice is simply to go through the rituals. The Nikkah Nama is printed. The only blanks to be filled are the amount of Mahr and the names of the witnesses. There are no terms and conditions negotiated not to speak of the circumstances or the modus and authority to divorce. The bride is never informed about her right to negotiate any terms. It would be blasphemous to suggest that the bride has a right to seek the terms of divorce to be written into the Nikkah Nama. If women were allowed to negotiate each and every condition of the marriage contract including the method of divorce, we wouldn’t be discussing Triple Talaq in the twenty first century. Not even polygamy.