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LEFT, RIGHT, CENTRE | COMMENT
Should triple talaq be outlawed?
FEBRUARY 24, 2017 00:15 IST
Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan, an autonomous organisation, and a co-petitioner in the triple talaq case before the Supreme Court, writes:
It is the constitutional obligation of the government to enable Muslim women to obtain a level playing field
There are four or five judgments where the triple talaq provision has been struck down as invalid. But it has not led to this un-Koranic practice being rooted out from our society. Triple talaq continues to be the most common method of divorce. We had done a sample study of 4,710 women and found that out of 525 women who were divorced, 349 were victims of triple talaq. While the courts have settled the matter, we have to look at the unjustness of the entire process. How can we accept that a man can simply utter the word talaq thrice or communicate it through phone with no witness deemed necessary and where the burden is on the wife to legally contest it? There is no law binding the man, he can just act on his whim. This is absolutely unfair and must be stopped.
Seeking a level playing field
Let me cite a case from Madhya Pradesh where a woman who did not wake up when her husband returned late from work received talaq thrice when she was asleep! She was informed about her husband’s decision by her mother-in-law. It is a convoluted argument to say that triple talaq is not an issue only because a few judgments have declared it invalid. Why should a man have unilateral powers to divorce, and the woman just comply? What is wrong in seeking a level playing field between husband and wife? Such arguments only further the patriarchal order.
As far as the Koran is concerned, triple talaq is just not valid. There are verses calling for reconciliation and mediation over a period of 90 days involving both sides. The objective is that the woman should not be rendered a destitute. Also, when the final pronouncement of talaq is made, the women should not be menstruating. This is an evolved system of jurisprudence calling for just and fair divorce.
All we are seeking is that the Supreme Court should lay down the procedure for talaq based on the talaq-e-ehsan method. There is a debate about personal laws being violative of fundamental rights. But the personal law being practised by the Muslim community in India is not based on Koranic injunctions. Rather triple talaq is a violation of the tenets of justice and fairness.
Gender justice is a central tenet of the Koran and gender inequality and triple talaq are in violation of the Koranic principles. In fact, in the Koran, the very conception of humankind is based on an equal footing between man and woman. But patriarchal misinterpretations and distortions rule our lives. Any talk of reform in personal law is brushed aside as interference in religious matters.
On a Uniform Civil Code
As far as our position on the Uniform Civil Code (UCC) is concerned, we are clear that a secular law alternative must be available to every citizen. This alternative exists in the form of the Special Marriages Act. But abolition of triple talaq and UCC are two separate issues. The UCC question applies to the entire Indian population, not just Muslims. Muslim personal law needs drastic reform just like the Hindu code or the Christian laws. There has been a legal discrimination of Muslim women in our country. Muslim women are still subject to the Muslim Personal Law (Shariat) Application Act, 1937 which is silent on triple talaq, nikah halala and polygamy. We need to be brought on a par with Hindu sisters and Christian sisters who have a legal recourse. The Hindu women have the Hindu Succession Act and the Hindu Marriage Act. We are a patriarchal society and it is not as though Hindu and Christian women have attained equality. But they do not face legal discrimination the way Muslim women do.
It is the constitutional obligation of the government to enable Muslim women to obtain justice. It is not about the BJP or the government but about gender justice for Muslim women.
Kamal Faruqui, former chairperson of the Delhi Minorities Commission and founder-member of the All India Muslim Personal Law Board, writes:
Triple talaq is a Koranic injunction. But it depends on the terms drawn up in the marriage contract
The pronouncement of triple talaq is acceptable to all four schools of thought in Islam and though not desirable, it is very much a Koranic injunction. Those who criticise it do not understand the Koran. Having said that, I should also state that eventually it comes down to the nikahnama, which is a contractual obligation between the two parties. If the terms of the contract do not have provisions against triple talaq and have not been contested before being accepted, the pronouncement of talaq at one go or over the prescribed period of three months is allowed in the Koran. Don’t forget that Islam is the first religion in the world to institutionalise marriage. Nikah imposes conditions, prescribes equality of women, maintenance of children and so on.
Conditions for triple talaq
But please don’t assume that the Koran does not condone talaq. It has been described as one of the worst options to be exercised only under extenuating circumstances. It allows for an exit when the marriage breaks down but only under certain conditions. The talaq-e-ehsan, one form of divorce, is over a period of three months and it is only after the completion of the third month that you are no longer man and wife. The talaq-e-bidat or triple talaq at one go allows the man to exhaust all the options at once. Again, if the nikahnama has proscribed it, then the man cannot take recourse to this divorce. Divorce is one of the worst things in the institution of marriage and allowed only in extreme situations. Even when a person goes to buy a pen, he is bound by contractual agreement. In the case of a nikah/marriage, the contract is between two parties in the presence of at least two witnesses. We are governed by the Muslim Personal Law (Shariat) Application Act, 1937, and if the Supreme Court says this must be revisited, we will oppose it.
Many misconceptions
I also wish to clear the misconception on the number of triple talaqs practised among Muslims. We moved RTIs to find out the divorce rates among the religions in India and I can share with certitude that it is the least prevalent among Muslims. It is rare among Muslims. And those who practise it are usually the uneducated and the poor who do not know their Koran or those who are misled by others. It is also incorrect to say that triple talaq has been banned in 22 countries; it has been regulated in most of said countries. You could have concerns about why is it that a man can take recourse to uttering talaq and not the woman. Under Islam, the man shares the greater responsibility in marriage as far as maintenance of his wife and children are concerned. He has many duties to fulfil and many responsibilities too. That is why he has been given the responsibility of ending the marriage only when it breaks down. Women too have the option of khula. She will have to approach the qazi if her husband is absconding, of bad character and so on.
We will plead before the apex court to have a separate department with people who are well-versed in the Sharia laws if at all the court wishes to mediate on the matter. So far, the courts have been very careful in interpreting personal laws — which are part of the fundamental right to religion for every citizen of the country.
Syeda Hameed, Women’s rights activist, educationist, a former member of the Planning Commission, and the first woman Qazi from Lucknow, writes:
Why rake up matters that have already been settled by the SC and create discord between communities?
Back in 2002, the Supreme Court had given its ruling on triple talaq in the Shamim Ara v. State of U.P. case — when Justice R.C. Lahoti and Justice P. Venkatarama Reddi said a mere pronouncement of talaq in response to a woman’s plea for maintenance cannot be treated as pronouncement of talaq. In order to be valid, talaq has to be pronounced according to the Koranic injunction. Triple talaq, in fact, was banned in 2002 by the apex court and I don’t recall the All India Muslim Personal Law Board and other affiliates protesting against the judgment. There was a similar judgement from the Aurangabad Bench of the Bombay High Court in the Dagdu Pathan v. Rahimbi case (2002) which struck down triple talaq. So I am perplexed why Shayara Bano, who recently filed a public interest litigation before the Supreme Court, was not advised by her lawyers that the issue had been addressed and settled in the past.
Cues in the Koran
An unnecessary controversy has been created now when all the contesting parties that are shouting had earlier kept quiet. The whole triple talaq issue is repugnant to Islam and those who say it legitimises Islam are doing a great disservice to Islam.
The whole point of talaq is to find a dignified way of getting out of a marriage that has irrevocably broken down. But it is not that simple. It is actually very difficult to get out of marriage. The Koran states the conditions which have to be observed. Triple talaq must be pronounced over three months. One per month. During the months, mediation is essential with both parties being represented during the negotiation. This is a Koranic injunction and it is only after following these conditions that talaq is granted and once granted is irrevocable. You cannot say that you uttered the word in a drunken stupor; neither can you pronounce it over the phone or send it on email or fax it or send a text message. But I feel that the community has to look within and take the lead in reforming such reprehensible practices, or else the state will interfere with personal laws. And it has already been settled that personal law is in sync with the constitutional rights guaranteed to all citizens.
Egalitarian treatment
On the issue of polygamy, which is again being contested in court, it is conditional on so many things as spelt out in the Koran, which makes it abundantly clear that it is against human nature to give egalitarian treatment to everyone. So, the concept of four wives is simply not possible if you follow the letter and spirit of Koran. It specifies that in case there is more than one marriage, it is essential that identical treatment is given to each wife. But since this is not possible given human nature, it is best to have only one wife. The Prophet married Hazrat Khadija. She was 15 years older than him, she was a widow, and he worked for her. It was she who proposed marriage. This is the Prophet’s Sunnah (practice). What example does it provide for the believers?
Islam is going through a turbulent phase world over and this issue can be used as an excuse to create discord between communities giving rise to a communal situation. I also fear that the hardliners will raise the spectre of ‘Islam in danger’ through this issue. I am afraid this is not the right time to debate on matters that have been settled by the courts
Ghulam Muhammed