Views on Council of Islamic Ideology’s recommendations on ‘Talaq’

On the 15th of November 2008, the Council of Islamic Ideology (CII) has proposed fundamental changes in family laws, including a recommendation that a divorce demanded by a woman will take legal affect in case the husband fails to oblige after 90 days. The recommendations can be accessed athttp://www.cii.gov.pk/pressrel/p151108.pdf in Urdu language. The chairman of CII, Dr. Khalid Masood and one of its active members, Javed Ahmad Ghamdi have been defending the recommendation pertaining to divorce on various media outlets like the ‘Pachas minute’ talk show hosted by Abdur Rauf (accessible athttp://www.friendskorner.com/forum/f175/50-minutes-30th-november-2008-a-80974/) and by writing articles in magazines like in ‘Ishraq’ titled "Talaq ka Haqq” (Ghamdi, December 2008). This was followed by various ‘englightened’ thinkers defending those recommendations and welcoming them. In this article, I would like to discuss the recommendation which advocates an automatic divorce after 90 days of submitting a request by the wife to the husband, in case he is not willing to divorce, discuss the danger contained within it; and importantly present the causes behind such recommendations.

First of all it should be clear that those who have formulated and are advocating these new recommendations on divorce are not stating that women should have the right of divorce, rather these advocates accept the divine judgment on this matter, which gives this right only to the men. Mr. Ghamdi for instance wrote in his article in Ishraq, “One suggestion to resolve this problem is that the man be asked to delegate his authority in divorce to the woman. However, such demand is again not easy to make in our society, especially on the occasion of marriage. Furthermore, such stipulation also negates the spirit and the wisdom in not giving a woman the right to divorce her husband.” Since the sole right of men to enact divorce has not been put into question by the CII and advocates of its recommendations, I will not look into that matter.

The flaws of the reasoning behind this recommendation:
We first need to understand the fallacy behind the reasoning that a new ruling regarding divorce is required in the first place. There is always one – very emotionally appealing – reason given by Ghamdi and Co. for the need of an ‘ijtihad’ on this matter. They point to the dismal state of affairs in our family courts in specific and our judicial system in general. It is argued that it is impossible for an honorable woman to seek and get her right in a reasonable time frame and without being harassed. Now there can nothing be closer to the truth than this depiction of our courts and judiciary, but still I would argue that it is the wrong conclusion that hence we need to change the way divorce is asked for by women. What is new in this case which would require an ijtihad? Are we referring to any technological advancement here or are we bringing up some conflicting evidences, both of which could justify the need of ijtihad on this matter? Is corruption a new phenomenon or is it this very corruption which Islam came to uproot whereas by passing such laws we are not only foregoing it but in a way encouraging it? Islam has come to change the society and systems and not the other way round, i.e. be influenced by the ills and shortcomings of the society and systems. This is to say, if there is corruption in the court system, shouldn’t we cure that, rather than finding ways to work around it, considering the fact that this would mean changing the hukm of Allah and thereby rendering it impractical and inapplicable! This is not the first time that people suggest adapting Islam to the reality. When people are robbed of their wealth due to the inflation caused in a fiat based monetary system, some ‘enlightened scholars’ suggest legalizing interest in order to balance out the losses incurred by inflation, instead of calling for the Islamic monetary model which is free from inflation because it is not fiat but a bi-metallic standard. This is a very dangerous phenomenon as apparently the ‘enlightened’ scholar is solving a problem and at the same time adapting to the reality but when one looks into the matter in a bit of detail, what is happening is that instead of fixing a problem, they are justifying another unacceptable action by it. This is nothing else but changing the laws of Allah because of the unwillingness to change the reality and fix the real problem. If this thinking was to prevail, there would be nothing left of Islam, as everything and anything can be changed in the name of adapting to a new reality.

The flaws of the recommendation itself:
Let’s now have a look at the recommendation. It is suggested that due to the above mentioned problems in our legal system, where the women cannot easily seek divorce through a court even when they are deserving of it, the wife should have the right to ask the husband for divorce in writing and in case the husband does not grant her divorce, the contract of marriage would be terminated after 90 days of submission of such an application. I really wonder if this is not giving the woman the right to divorce, with a delay of 90 days, what else is it? It is ironic that on one hand it is claimed that the spirit and wisdom of not giving a woman the right to divorce her husband should not be negated and on the other hand these people are hiding behind 90 days! The fact of the matter is that this recommendation gives a woman the right to divorce her husband and the only difference is that the divorce will not take place immediately, rather after 90 days. I don’t know whom the CII thinks they are making a fool of?

The other way of looking at this – is that it is actually prolonging the misery of the woman by 90 days, since in Islam the judge is able to grant an immediate separation between the couple on the request of the wife, based on certain criteria, irrespective of the objection of the husband.Therefore, in both directions, the recommendation is flawed.

The Islamic perspective on women seeking divorce:
This matter is very clearly regulated by shariah, which recognizes the fact that there would be situations where the woman would be in a condition where she needs to be separated from her husband and he might not be willing to do so, out of enmity or pride. The wife should present her case to a Qadhi (judge) and it is in his discretion to rule on the matter. It is worth mentioning here that Mr. Ghamdi has been referring to the discretion of the Qadhi and calling it discretion of the state who has entrusted the Qadhi with it. And by this logic, he claims that the state of Pakistan can therefore also judge, ex ante, on all such future cases, granting them all divorce after 90 days of asking for it. There are several problems with this deduction of Mr. Ghamdi. The first and foremost being that Islam has referred the matter to a judge, who would inquire about the matter case by case and then judge accordingly. How can a Qadhi, or for that matter the State exercise this right of judging in such matters, case by case and after inquiry, to decide on all such cases in which a wife for any unknown reason is asking for divorce, and grant it to all of them? Wherever there is a requirement of inquiry before passing a judgment, how can there be a single judgment passed for all such cases, where the cases have not even yet occurred! The second problem with this logic is that even if the previous logic was correct, since when does the (un)Islamic government of Pakistan represent the Islamic state? If some power is granted to a Qadhi by Islam, it can only be changed by the Islamic state and not by any puppet regime installed in Muslim lands by our colonial masters.

The broader context of the issue:
The saddest part though when such recommendations are made is that they simply ignore the fact that Islam, more than any other ideology, is a set of mutually dependent and reinforcing systems, where one set of rules system) could not function properly without having the presence of other rules (systems). This concept was understood very well by earlier Muslims as never have scholars before suggested any ‘patchwork’ solutions from Islam to be implemented where the basis or other rules are not from Islam. As an example, consider the implementing the punishment system of Islam, say the lashing of the fornicator and cutting the hand of the thief (as per definition of a thief in shariah). Now if the prevalent social system is one which encourages all kinds of immoral behavior, by allowing media to show programs which encourage boy-friend girl-friend culture, by allowing men and women to socialize with each other in public and by discouraging early marriage, the implementation of the Islamic punishment system would be nothing more than a farce. Similarly, if the economic system is one based on interest, which encourages the hoarding of money, levies heavy taxes even from widows and orphans in the guise of GST and allows privatization of public assets like oil-wells and gas-fields, the discussion about implementing the Islamic punishment for stealing would arguably be unjust. This is so because Islam is not a set of do’s and don’ts, rather it is a comprehensive set of systems which only when implemented in their totality will lead to a just society and solve mankind’s problems. Having said this, it should be clear why it is criminally ignorant on the part of our so called scholars today to try and reform Islam and adjust it to the reality where actually they should have been calling for the comprehensive implementation of Islam. Haven’t they heard or understood the ayah in Quran where Allah (swt) warns us all in Surah al-Baqrah by asking, in translation, “Then is it only a part of the Book that ye believe in, and do you reject the rest? But what is the reward for those among you who behave like this but disgrace in this life?- and on the Day of Judgment they shall be consigned to the most grievous penalty. For Allah is not unmindful of what you do.” (TMQ 2:85)

So as the issue of divorce/khula’ cannot be separated from the social system, the punishment system, the education system, the economic system and the ruling system – the questions becomes why do the scholars not address these issues simultaneously? Is it perhaps that they have been affected by the secular framework of thinking which the colonial powers successfully established in the minds of the Muslims, thereby losing the ideological framework of Islam – which is required when addressing any problem in society? The consequences of this ‘patchwork’ approach are twofold: Firstly, instead of solving the problem, they in fact aggravate it; secondly, because such adaptations are carried out in the name of Islam, the ummah loses it confidence in Islam as a solution provider. This is analogous to the story where people in a small village are face with the unpleasant situation of a rat dropping dead into a well. The villagers ask the local Imam for the hukm and he tells them that you have to remove 20 buckets full of water after which it would be pure again and drinking from it would be halal. The villagers, ignorant about the hukm themselves, do as directed but the water is still smelling and of bad taste, until they realized that the source of impurity, the rat needs to be removed first, otherwise any number of buckets drained out won’t purify the water. Though the situation of Muslims today is far more complex, the solution is as simple today as it was in case of this example, i.e. we need to uproot the secular system and exchange it with the Islamic ideology instead of attempting to implement some ahkam here and there just to silence sincere Muslims who want to see Islam implemented on them.

From the above discussion, every Muslim should realize that we are living in a condition and environment which is as unacceptable for a Muslim as a fish taken out of water. Therefore, all the pain and suffering which we are having in living on (or in case of the fish in not being able to breathe out of water) should actually be a big source of motivation for us to change our society and the systems which are implemented on top of it, rather than accepting any suggestions to change the divine laws of Islam.