By Arman Kazmi
Talaq, often translated as divorce, is one among many ways/processes in Islamic jurisprudence (fiqh) through which divorce is made possible. In the past decade, the rationale behind Talaq has faced heavy criticism because of its unjust and gender biased nature, where the husband (man) has an upper hand in the dissolution of a marriage.
The word ‘Talaq’ literally does not stand for divorce. The literal translation goes as “setting free” or “letting of tie or restrain.” If one goes by the concept of marriage in early Islamic times, this authority of “setting free” was invested in the man, the husband. It was the husband who was capable of giving Talaq, as authority rested with him in marriage. The one common aspect that all forms of Talaqs like Talaq al Bida, Talaq e Hasan, etc. share is bestowing of the authority to the husband for consummation of marriage. Talaq may be the dominant way of divorce among Muslims even today, but it is not the only option available for marriage dissolution in Jurisprudence. The reason it gained such dominance and became synonymous with divorce was the hegemonic masculinity and patriarchal nature of the society.
Marriage (Nikah) as per Islamic understanding is a strong civil contract between two consenting adults (Heterosexual as per popular understanding). This concept of marriage was formalised in a society which was highly patriarchal. Men dominated most of the social sphere and women were dependent on men for their maintenance and identity. One of the reasons why men provided Mahr for their bride was because of this very fact that among the two only he had the social privilege and capacity to provide. Therefore, men were referred to as guardians (Wali) and protectors (Qawaam) of their wives.
There is no doubt that Islam did bring a change in the way marriage was perceived with regard to the rights of wife and position of women in the Arab society. But this change marked just the beginning of that process of change and not the end. Unfortunately, this beginning was taken as an end by most of the followers of Islam.
The status and role of women in the contemporary society is not the same as it was during the advent of Islam. Women through their persistent struggle against patriarchy have redefined their places in the society. All concepts and ideas are being revisited and feminist interpretations have become an important aspect for historicising, deconstructing, and a proper understanding of various discourses.
Keeping in view this rising concern of gender equality in the Islamic Shariah, many Islamic jurists and theologians have tried to break away from the hegemony of Talaq as being the only way of divorce. Efforts have been made to lay equal stress on Khula as an alternative and balance of power. Al-Khula, although acts as an empowering tool, conceptually shares similar problem as that of Talaq. Khula translates as “shedding” or “removal of authority.” This concept, like Talaq, shares the same problem of addressing men as having higher authority over wife in marriage from which she needs to free herself. As power relations are still far from being balanced, Khula provides some form of immunity and restricts the abuse of authority by men to some extent.
Besides Talaq and Khula, there is another way of divorce which has received far less attention than it deserves. Mubarat, a divorce through mutual consent, an egalitarian alternative, gives equal status to both the partners. The word “Mubarat” denotes obtaining release from each other. The meaning in itself gives an equal status to the both the partners. Mubarat as divorce is said to take place when the husband and wife, with mutual consent and desire, obtain release and freedom from their married state. The outstanding feature of this way of divorce is that both the parties share an equal weightage. Thus, the proposal may emanate from either side.
This understanding of divorce is a better replacement than the popular perception of divorce as Talaq. Mubarat conveys a sense that dissolution of marriage should be based on the same principle as its annulment, that is realising the importance of giving equal weightage to consent of both the partners.
Bio:
Arman Kazmi completed Masters in Philosophy from the University Of Hyderabad. His areas of interest are Religion, Mysticism, Poetry, Politics, and Philosophy of Science.
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