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Home / Featured / Divorce under Hindu and Muslim Laws

Divorce under Hindu and Muslim Laws

Aping the West Needs to be Stopped.

By Ahmad Rashid Shervani

Marriage is, perhaps, the most beautiful relationship. Based on mutual love and respect, it can be a most powerful factor in making life worth living. The Hindu concept of marriage is noble and lofty. In the traditional, real Hindu law, marriage was a permanent union, indissoluble, sacrosanct. In ninety percent cases the Hindu marriage worked very well, we are told. It gave honor and dignity to women, happiness to men, stability to family and society.

Even among decent Muslim Indians ‘divorce’ is a dirty word. No doubt this is partly due to good Hindu influence on Muslim Indians. Although divorce is much easier in Muslim law, the incidence of divorce among Muslim Indians is as low as among Hindus. That marriage is sacred, is the Indian view and we are all proud of it, Muslims not less than Hindus.
Yet, as we all know, sometimes a marriage does not work. There is no mutual love, no mutual respect. Not even mutual adjustment and compromise. Such a marriage becomes an oppression, a curse. To keep such unwilling partners bound together would be cruel to them and would also be no good for society because it would undermine the dignity of the noble institution of marriage itself. For such cases Islam provides divorce. Hindus have also ultimately agreed that, in such cases, divorce is the lesser of the two evils and incorporated divorce in their law. However, perhaps, Hindus made a blunder. They took the law of divorce from the west.

Western Law

From where had the west got the idea of divorce? Mainly from Islam because even in the traditional Christian (Roman Catholic) law there was no divorce. Christians believed that “marriage is made in heaven”. Like Hindus, they considered marriage to be a bond for ever. Yet, the westerners found that they cannot do without divorce so they took the idea of divorce from Islam but, sadly, they made a mess of it. Instead of giving the right of divorce to the husband and/or wife (as Islam does) they left it to the Court. The law of divorce in western countries is generally very confused.

images (13)In some countries, the law is that a wife can get a divorce on the ground: “My husband does not love my cat. The brute pushes the sweet little darling away. I cannot tolerate such a nasty man. So, I want a divorce”. No joke. There have been such cases. Divorce granted, costs on husband.

In some other countries, the law is that if a wife sues for divorce on the ground that her husband beats her, she is asked: “How often does he beat you?” The law is that only if a husband beats his wife habitually it can be a ground for divorce. If a husband beats his wife only once in awhile, he will not be considered a habitual wife-beater and the wife will not get a divorce. Case dismissed, costs on wife.

Divorce proceedings in the west are often funny and sometimes not even funny. Clear and specific grounds for divorce are required to be furnished. Often, ‘clarity’ is sheer vulgarity and ‘specific grounds’ mere pornographic details. Proven adultery is not enough if only “occasional”. It must be habitual to be a ground for divorce, says the Court. Costs on parties. Often, there have to be long periods of separation before divorce is granted in western countries. The husband is living with a mistress and the wife with a paramour, waiting for the Court to be pleased to grant them the divorce. The whole thing is sickening.

Modern Hindu Law on Divorce

It is from such confused and absurd laws that some overzealous modernists among Hindus borrowed the law of divorce for Hindus. Obviously, Hindu laws relating to something so sacred as marriage should be based on noble Hindu traditions, rooted in the most remarkable Hindu heritage, the most wonderful Hindu culture.

It was necessary to provide for divorce to end a freak marriage which does not conform to the lofty ideal of a true Hindu marriage and which, in fact, is no marriage at all but just a mismatch. However, there was absolutely no need to borrow absurd and vulgar divorce laws second-hand from western countries, many of which have since been discarded even there. That is why the Hindu law of divorce has been constantly changing and, even today, it is nowhere near being satisfactory. We hear demands from Hindus themselves for more amendments in the Hindu law of divorce.

When Hindus themselves are not satisfied with their present law of divorce, how can anyone say that this unsatisfactory law should be applied to Muslims also in the name of uniformity? Let Hindus first have a decent law of divorce with which they are themselves satisfied and in which they are not themselves demanding changes all the time.

Muslim Divorce Law

Now let us see the real law of divorce in Islam. First of all it is made very clear that, of all things permissible in Islam, divorce is the most disliked by Allah. Then the procedure for divorce is laid down. It is recommended in the Quraan itself that the two should try to patch-up and it is even promised that, if they sincerely try, benign and munificent Allah will fill their hearts with love for each other. If the two still cannot make-up among themselves, it is suggested (yes, in the Quraan itself) that one person from the husband’s side and one from the wife’s side should try to bring about a reconciliation. If this fails, a thaalith or arbitrator may try a compromise. If even then, a divorce cannot be avoided, the husband may pronounce the word talaaq once and thereafter keep away from the wife. The process of divorce has then begun. The wife is now in iddet, the waiting period. She has not yet become a divorcee. The two can still reconcile and continue living together. All they have to do is ruju (revocation three months are allowed for).

images (15)If this true Islamic procedure is followed, most divorces will be avoided. However, if three months of iddat pass without rujoo, the process of divorce shall be complete. The divorcing Muslim husband is ordained to pay full mahar (dower) if not already paid. In addition, he should pay mata-un-bil-m’aroof (compensation)and send-off his ex-wife with respect, in dignity. This is talaaq-e-ahson, the real, decent Islamic divorce! Even after talaaq-e-ahson is complete, they can re-marry. This is permitted twice. But only twice.

What about triple divorce among Muslims? This is an abominable, shameful practice. It is a travesty of the shari’at. The second pious Caliph, Omar Farooq (may Allah be pleased with him) used to get such Muslim men lashed. Triple divorce was a punishable offence. This should be made known to common Sunni Muslims. The deplorable practice of triple divorce, must be curbed. It is harmful for Muslims themselves. More often than not, a Muslim man who gives triple divorce repents it and has to run around, trying to get halaala (temporary marriage of divorced wife to another man) done, which is even more shameful and disgusting than triple divorce.

But how did triple divorce come about? Long story. Briefly, it was to prevent divorce and remarriage becoming a hobby. Elizabeth Taylor and Richard Burton divorced and remarried eleven (or, was it twelve?) times. Divorce should not be made a joke. So, it was ordained that a man and a woman cannot remarry after divorcing her thrice at different times. Some fools started divorcing thrice to begin with. It caught on, as evil generally does.

Why has only the Muslim husband the unilateral right to divorce his wife ? In the case of a plain nikah, the right of divorce rests with the husband. The wife can and should get the tafweez-e-haqq-e-talaaq (empowering the wife to divorce her husband). It gives the Muslim wife an equal right of divorce. Then either the husband or the wife can divorce each other without any litigation.

This is in direct contrast to the western laws of divorce which Hindus have saddled them with. Under these laws the extremely private relations between husband-and-wife become the subject of lewd cross-examination and loud arguments. The real Hindu concept of marriage is fine, superb. But the present Hindu law of divorce (borrowed blindly and second-hand from the west) is unworthy of the noble Hindus. After umpteen lengthy hearings a divorce may be obtained from one court only to be soon set-aside by a higher court. Many a poor Hindu wife/husband cannot be sure whether she/he has got the ruddy divorce or not yet.

Bigamy

What about bigamy? Oh yes, of course, how could we forget that! Surveys have shown that the incidence of bigamy among Muslims is NOT more than among Hindus. In-spite of bigamy having been legally banned for Hindus half a century ago, there are many bigamists among Hindus. But if it is against the law, how can there be? Very easily. A bigamist Hindu can be prosecuted, BUT only by his wife. The second wife is herself guilty. The first wife generally is too good, too noble, a true Hindu dharmapatni for whom even her bigamist pati is parmeshwar. Or, she fears that any such step will only harm her children because the angry husband may stop giving them whatever he is giving. So, a bigamist Hindu husband gets away with it, comfortably.

And what about the sahib-log in western countries whom some of us are ever so keen to ape? There a man having one legally wedded wife cannot have another. But never mind, a most civilized western male can just start living with any woman. She will be his ‘common law wife’. Make laws monogamous but let men be bigamous, is the western device. Brilliant, no? And these very people have the cheek to say: “Muslims are horrid. They can have two wives at the same time. Can you beat it?” Yes, you can beat it with this device of ‘common law wife’. And some ultra-modernists among Hindus want to introduce the ‘common law wife’ here also.

I sincerely believe in one-man-one-wife. Islam also does NOT encourage polygamy. In fact, Islam restricted polygamy. Islam laid down stringent conditions for having more than one wife which, many fear, can hardly ever be fulfilled. I admit that quite a few Muslims misuse and abuse this permission. I am ashamed of them. Yet, I also believe that honesty is better (even if only slightly better) than hypocrisy. I believe that having two wives in contravention of their law (as some Hindus do) is worse than having two wives in accordance with their law (as some Muslims do).

Why don’t noble Hindus first plug the big loophole in their own law relating to bigamy? How? Simply by making bigamy a cognizable offence. Till this is done, till a bigamist Hindus is allowed a second wedding, all Hindu talk of preventing bigamy among Muslims would be sheer hypocrisy. I re-iterate, I am all in favor of strict monogamy for everybody — no second wife, no ‘common law wife’, no mistress even for anyone, Muslim or Hindu. Done?

Conclusion

To sum up, when we make laws in India on such a delicate subject as marriage and divorce, we should not blindly rush to the west and borrow one clause from Finland, one sub-clause from Granada, one proviso from Portugal, one section from Oklahoma, one subsection from Alabama. We should draw from our own noble heritage, our own culture and traditions, our own scriptures. Of marriage there is enough in Hindu scriptures, heritage and culture. As I have said above, the Indian concept of marriage, the Indian approach to marriage, the Indian attitude towards marriage is basically Hindu and that is as it should be. However, in those sad, unfortunate cases in which our noble Hindu concept of marriage does not meet the situation and divorce becomes unavoidable, we cannot draw from Hindu scriptures because divorce does not figure much therein. The idea of divorce was foreign to Hindus. It came from Islam. As Hindus have themselves decided to incorporate it in their law, they would do well to take it directly from Islam in its best form rather than go about borrowing it second-hand from here and there in its distorted, vulgarized, western form.

Even otherwise, as the Hindu scriptures do not provide guidance for divorce law, the next best source is obviously Islam, the religion of roughly twenty-five percent of the people of this subcontinent, the faith of at least one-fourth of all children of our dearest Bharat Mata. But the source of this law must be religion and morality and not the idiotically materialistic western laws of divorce which some pseudo-secularists now wish to impose on Muslims too in the name of modernism, a word which to them means just aping the west and that too only in bad things.

Hindus and Muslims should study each other’s laws. This is the only sensible way to progress in the direction of making our two laws better, more and more compatible, harmonious. Hindus and Muslims have given a lot to each other, taken a lot from each other, learnt a lot from each other, taught a lot to each other. Yet they have a lot more to learn from each other. I concede that Muslim Indians have more to learn but a Hindu would be unwise to think that Hindus have only to teach or dictate and not to learn. Let them at least take a good look at the Islamic law of divorce instead of just being prejudiced without knowing.

[Ahmad Rashid Shervani is a renowned philanthropist, entrepreneur, educationist and community activist. He is Founder & Chairman of Bharat Sewa Trust, which focuses on Muslim education in India. He can be reached at arshervani@gmail.com]

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