-Dr Pramod Pathak-
Talaq! Talaq! Talaq! The three words which can be uttered by a male chauvinist in a fraction of a second have kept an average Muslim woman enslaved and subjected her to the whims and fancies of her inconsiderate husband for centuries. It is being challenged by no other than a Muslim woman, Shayara Bano, a double graduate in arts from Uttarakhand, who was given talaq after 13 years of married life. She has appealed to the highest court for reconsideration against the tradition of a one-sided utterance of these three words precipitating into unilateral divorce. The Supreme Court has accepted the petition adding more parties to plead. These are the Govt. of Bharat, the All India Muslim Personal Law Board and estranged husband of Shayara Bano.
According to the writ petition filed by Shayara Bano, the custom of triple talaq is abominable and abrogates the fundamental rights of the Muslim women as citizens of Bharat as per the 51A article of the constitution. The fact is that the Muslim women always remain under psychological stress for the fear that, they would be divorced on flimsy pretexts. They would be devastated for their life. As pointed out by Prof. Tahir Mahamud in the Indian Express dated March 23, 2016, even if the husband later relents, they will have to face the ignoble situation of “sleeping with someone else before returning to a man”. Prof Tahir has listed a few other instances of the Muslim women, Bai Tahira, Fuzloon Bai, Zohra khatun, Iqbal Bai apart from famous Shah Bano in late 1980s when then Prime Minister Rajiv Gandhi had virtually undone the Supreme Court verdict which could have brought about progressive changes in the Muslim society. By sheer brute majority in the Lok Sabha, Rajiv Gandhi pushed the bill that nullified the Supreme Court verdict. It pushed the Muslim male society on the regressive path.
Not for the First time
It is not for the first time that the tradition of the triple talaq has been challenged in the court of law. Just two years ago, a senior advocate and ex-MLA from Tamil Nadu, Adv. Badar Sayeed filed a petition in the High Court arguing that triple talaq is always unilateral, a male prerogative and some witnesses should be summoned before the verdict is given. As a practising lawyer, Sayeed had faced on several occasions the situation where the Kajis, the Muslim judges always decided the verdict in favour of the Male litigants; for the Muslim ladies, even if their complaints against their spouses were genuine, they were always pressurised to withdraw and go for reconciliation (Indian Express dated June 21, 2013). Marriage is considered as a contract in Islam. In that case, it should be solemnised only after written contracts are signed by both the spouses. This does not happen, as the parents of a bride don't show earnestness to go for written contract. A progressive Muslim social worker, late Asghar Ali Engineer had urged the fellow Muslims to go not only for written contract but also to register it. Then in the event of talaq, the male partner will be obliged to pay adequate compensation to the lady who is virtually thrown on the street with her kids, while the male partner can get married to start his life again. This is a highly discriminating situation and goes against the dignity of human life.
This time the Muslim Personal Law Board has taken the stand that the tradition of triple talaq is ordained in Sharia and that it is a divine dispensation. Muslim Personal Law Board lawyer Ezaj Makbool argued that the Mohammedan Law is based on the Holy Quran and Al Hadith narrations; it can't be challenged in the court of law run by human beings, implying that the kafirs presiding over the ruling have no right to interfere in the divine law. Asma Zehra, a lady member of Muslim Personal Law board has argued that the Muslim women are adequately protected by laws enacted earlier in 1930 and 1986 i.e. after the Shah Bano verdict. On the background of these laws it is inappropriate to challenge Sharia code.
The proceedings are expected to take a queer turn and likely to challenge at least those parts of Sharia which have been inherited from the pre-Islamic period, Triple talaq in the case in point here. Tahir Mahamud points out, the tradition of triple talaq dates back to the pre-Islamic times and that Islam tried to put restrictions on the unbridled enactment of the old tradition. This predating of the tradition is also supported by an incident during the lifetime of the Holy Prophet. In the later life of the Prophet, there was conflict among the wives of Prophet. When He was troubled a lot on account of the family strife, future Caliph Umar had threatened Prophet's wives that he would suggest Prophet to unilaterally pronounce divorce to all of them and then He would get better spouses than they were. The family feud of course subsided. Caliph Umar's threat was not an empty threat. It had a backing of the pre-Islamic tradition.
Holy Prophet Himself was against the tradition of oral triple talaq. His two daughters, Ruqaiyah and Umm Kulthum had to undergo divorce at Maccah in the early years of Islam. Holy Quran too is against the divorce. HQ 4.128 suggests an approach of reconciliation between the spouses. But the misogynist approach of Mullahdome always interprets it binding only for female spouses, letting the male spouse to have unilateral divorce. Holy Prophet Himself was against the tradition of oral triple talaq. The authenticity of this particular Hadith will obviously be challenged by the Mullahdome as it goes against the male supremacist's attitude that prevails among the Muslim males. Not only that some Imams have gone further to consider that face to face oral pronunciation of talaq is not necessary and that the triple talaq sent even by SMS on mobile phone or even just typed and not conveyed is to be valid for legal separation of the spouses. It is height of the male misogynist attitude.
It is common practice among the Muslim sects that anything that has been adopted from the pre-Islamic days is considered jahilia – from the days of ignorance and that should be discarded. If that be so, then the tradition of triple talaq, predating the advent of Islam should have been discarded long back. Unfortunately it has not happened. The Muslim Personal Law Board is misleading the court by arguing that the triple talaq has the divine backing. It is to be noted that many Muslim countries have actually banned the oral triple talaq. These include Saudi Arabia, Pakistan and others.
As usual the vociferous media which has been highlighting the Hindu women's movement to get entry into the sanctum sanctorum of the temples at Shani Shinganapur, Tryambakeshvar and Kolhapur etc. has kept silent on the woes of Muslim women. Only one or two of them have brought the Muslim ladies and the diehard Mullahs face to face to argue out the triple talaq tradition. Viewers got an opportunity to see the intense insane and chauvinist mullahdoms' attitude towards the womenfolk. It is the fear of backlash from the Muslim diehards they are likely to be faced, the media is silent on the issue. But this fear is unfounded as majority of the Muslim women have supported the move by Shayara Bano. Here is an opportunity for the judiciary system in Bharat to open the closed triple talaq triangle.
(The Writer is a Vedic Scholar based in Goa and a freelancer)