‘If wife can’t hear, 'talaq' over phone not legally valid’

The latest fatwa from Deoband, validating triple talaq on the phone even if the wife is unable to hear the word all three times, cannot stand the test of law, women’s rights activists have said.

On November 15, the Darul Ifta or the fatwa department of the Dar Uloom seminary said that if a man utters talaq thrice to his wife on the phone, it will be considered a legal divorce even if the wife is unable to hear it due to a network problem and there are no witnesses.

Advocate Veena Gowda of Majlis said that such a divorce cannot stand ground in the court of the law. “In the 2002 Dagdu Pathan vs Rahimbi case, the Bombay high court has laid down procedures for oral talaq,” said Gowda.

“The woman has a choice either to accept the talaq or move the court against the husband.”

In the case, the court said that even if talaq is pronounced in the presence of a Qazi, or the wife’s father, or two witnesses (both of them professing Islam), the factum of this form of talaq is required to be proved if challenged.

The judgment said that “mere assertion by the husband in any form is not sufficient to hold that he has exercised the right to give talaq legally and validly. If any of the witnesses does not profess Islam, the talaq given in his/her presence shall be invalid and inoperative.”

Hasina Khan of Awaz-e-Niswan, a woman’s rights group, said the victim of the seminary’s ruling should approach a civil or high court instead of accepting the order. Khan gave the example of a couple in Orissa who approached the courts after the local community enforced the divorce pronounced by the husband in a drunken state.

When the community refused to let him reconcile with his wife when he became sober, the couple approached the courts. “The woman who has been affected by the recent Deoband fatwa should approach a civil court or high court to challenge the fatwa,” said Khan.

According to Khan, Sharia laws have been interpreted by Ulema or religious experts in a way that it favours men. “Even when new technology like phones, internet, SMS are used, the Ulemas’ interpretation supports men. Fatwa is a view and the woman affected by it does not have to obey it, but the problem is the opinion given by the Ulema is accepted as the community’s view,” said Khan.

“It is the same as the community panchayat's role in sanctioning honour killings. After the state intervened against the support given by the panchayats, the number of honour killings seem to have come down,” she said. She added that oral and other forms of talaq that use technology should not be allowed because there is a violation of gender equality involved.

But local members of the Ulema said the Deoband fatwa was valid. “Sharia law says that while a Nikaah (marriage) can happen only with the approval of both partners, a talaq given by the husband does not need the wife’s nod. So there is no question of whether the woman can hear the pronouncement of talaq. A woman does not have the religious sanction to question a talaq,” said Maulana Mustkim Azmi, a member of the Muslim Personal Law Board.