As the voices from Muslim women groups againt triple talaq gain support from diffrent quqrters, it seems the end of the tunnel for Muslim women is near
Manisha Agrawal Narain
The practice of divorcing one’s wife through triple talaq, which is only specific to Indian Muslims (not even Pakistani Muslims) is the bone of contention at all media channels these days. It is necessary to understand the barelegall picture from the beginning, step by step.
Source of Triple Talaq law
The following verse of Quran is used as an authority of triple talaq:
[002:229] The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you (men) to take back (from your wives) any of your Mahr (bridal money given by the husband to his wife at the time of marriage) which you have given them, except when both parties fear that they would be unable to keep the limits ordained by Allah (e.g. to deal with each other on a fair basis). Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul (divorce). These are the limits ordained by Allah, so do not transgress them. And whoever transgresses the limits ordained by Allah, then such are the Zalimoon (wrong-doers, etc.).
[065:001] O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: And fear God your Lord: and turn them not out of their houses, nor shall they (themselves) leave except in case they are guilty of some open lewdness, those are limits set by God: and any who transgresses the limits of God, does verily wrong his (own) soul: thou knowest not if perchance God will bring about thereafter some new situation.
Different schools of Islam interpret these ‘Aayats’ differently. Less than few admit allegorical and time-relevant meanings. But most schools take the above to mean triple talaq. While Shiyas have to utter talaq in presence of Quazi and two male Muslims, Sunnis don’t need any such formalities. It is not necessary for the declaration to come from the husband himself. He can empower a third person on his behalf to declare divorce from his wife under any arbitrary conditions, as per such third person’s will.
No other counterpart of divorce law in India treats wife as disposable object. With the advancement of internet and social media, the misogynist mindset of the believers of such laws manifests into humiliating divorces. Take the following examples:
A. In 2015, ten days after marriage, a NRI husband divorced his wife by sending the following WhatsApp message:“Why are you calling me? I do not like you. Do not wait for me. If we like apple, will we keep eating it every day? We will like to eat other fruits also. Talak Talak Talak.”
B. In 2009, a wife discovered that her husband had divorced her through his facebook update, “I hereby divorce my wife XYZ”. To make matters worse, even before she knew it, his girlfriend had replied to the post, “Good we are better off her now”.
C. After spending one year away from home for job in the UAE, a husband suddenly divorced her wife by sending a triple talaq message through SMS.
D. In Hyderabad, a husband gave talaq to his wife on Skype chat, after they has a small argument.
In all these cases, no reasons, no questions, all objections overruled. Such a one-sided divorce procedure is arbitrary and violates the fundamental right of gender-equality of Muslim women, flowing from Article 14 of the Indian Constitution. Under Article 13 of the Constitution of India any law which derogates the fundamental rights of citizens are void. Therefore, Muslim Personal Law Act as well as the Sharia law of triple talaq are void ab initio in India. Irony is that these 7th century laws are still followed despite being a nullity. Double irony is, such divorce laws discriminate Muslim wives not only from Muslim husbands, but also from non-Muslim wives who have an equal right to divorce on equal grounds as their husbands. How can similarly situated Indian wives be discriminated against each other on important matters of marriage and divorce, on the basis only of religion! It is therefore certain that the oppressive reading of archaic Shariat are ultra-vires Constitution and therefore null and void.
Why is it Applicable in India despite being null and void
The Muslim Personal Law (Shariat) Application Act was passed by the Government in 1937 to appease minorities. Section 2 of this Act provides:‘Application of Personal law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions … regarding dissolution of marriage including … talaq, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).’ This section is a tool of oppression in the hands of a select few who use it to deny the human existence of our Muslim sisters. Under the archaic interpretation of above-quoted Shariat (Quranic) law of divorce, a Muslim man can unilaterally divorce his wife, that too without giving any reason. But the wife does not have this unfettered right to declare divorce against her husband, even after the passing of Muslim Women Act.
Views of Muslim Liberal Scholars
Scholar Tahir Mahmood, Former Chairman of National Minorities Commission, says in his book The Muslim Law of India that triple talaq “was a pre-Islamic practice” and was “not introduced by Islam”. He further said in an interview, “According to the verses of the Quran on divorce a man can pronounce talaq only twice, according their juristic interpretation only thrice – on different occasions in his married life. The so-called triple-talaq is an absurdity that militates against the words and spirit of the Quran and sayings of the Prophet.”
The Supreme Court had awaken to this reality 30 years back, when it advised the Legislature: “It is thus seen that the law relating to judicial separation, divorce and nullity of marriage is far, far from uniform. Surely the time has now come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste … time has come for the intervention of the legislature in these matters to provide for a uniform code of marriage and divorce and to provide by law for a way out of the unhappy situations in which couples like the present have find themselves in. We direct that a copy of this order may be forwarded to the Ministry of Law and Justice for such action as they may deem fit to take.” (Jordan Diengdeh vs S.S. Chopra, 1985 AIR 935). However, the ugly vote-bank politics always led the governments into upturning Supreme Court judgments in matters of Muslim personal laws.
The courts have not succumbed to its repeated up turnings by the legislature on matters of discrimination against Muslim women. In 2002, the Supreme Court quoted from various High Court judgments to conclude, “The interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object … this tallies with the law now administered in some Muslim countries like Iraq – that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce.” (Order dated 1.10.2002 passed in Shamim Ara vs State of UP, Appeal (crl.) 465 of 1996
The case has been followed by various High Courts, latest being the Andhra Pradesh High Court in 2015 in the case titled Mohd. Abdul Qavi Abbassi Versus State of A.P. However, these judgments also met deaf years of the enlightened Muslim clergy who chose to follow their self-serving and marriage-subverting readings of the Sharia.
Now, the Supreme Court has once again taken fresh steps for bringing Muslim women on an equal pedestal as the rest of the Muslim and non-Muslim human beings living in India. The Court issued notices for hearing on the constitutional validity of triple talaq and other such discriminatory practices. The Central Govt Panel also submitted its report in the said matter advocating a ban on the practice of oral, unilateral and triple talaq as well as polygamy. It is for the first time that a government has taken the cause of the deprived and downtrodden Muslim women. Needless to say, the report and the said case have met the cold glare of the Muslim Personal Law Board.
A change seems to be sapling in the Indian society. Muslim women are seen standing up for themselves. Muslim Women groups across the country support the stand of the central government in opposition to the Muslim Personal Law Board. Let us hope the tunnel ends into a bright daylight for the Muslim Sisters.
(The writer is a Delhi based Advocate)