“These talaqs have no basis… if someone is doing it only for satisfying his lust and keep changing his wives and forces his own wife and children on the streets to beg… no one will call this as right… BJP stands with Muslim women who have been given talaq unreasonably, and arbitrarily” said Mr. Swami Prasad Maurya, a cabinet Minister in BJP’s Uttar Pradesh government, two days ago. While the Prime Minister has recently requested not to politicise the matter, the buzz around triple talaq doesn’t seem to end.
“All India Muslim Personal Law Board (AIMPLB), however, had rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution” as reported by Times of India.
This takes it back to the argument that has been raging for decades in India, “When a lot of Muslim majority countries are opting out of the practice, why is that in India we see certain sections of the society stubborn about the 7th century practice?”
Although there haven’t been concrete answers to why, many fail to understand what led to this question. In the day and age where men are opting out of a marriage through a text message saying “talaq, talaq, talaq”, it is important to understand whether it is this easy in practice. What came to light during the Shah Bano case in 1978, still hasn’t found a concrete ground to rest the case.
What is Talaq?
According to the Muslim scholars, The Prophet said: “There are three important steps that are taken very seriously: Nikah (marriage), Talaq (divorce), and Raj’a (taking the wife back).” (Sunan Abi Dawud 2194, Al-Albani said hasan)
According to the Muslim personal law, Marriage is a contract which can be dissolved once a party in the contract decides to opt out. The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims. Islam is spiritually against divorce and considers marriage a sacred relationship. As the final solution for the couples that cannot work towards making their marriage work, Islam introduced the practice of divorce. Divorce from husband involves talaq, Ila, Zihar. If wife wants to opt for a divorce fulfilling the conditions that allow her to, she can choose Khula or Mubarat. By mutual consent and by the judicial procedure, if the couple wants to divorce, they can consider judicial decree under Muslim Dissolution of Marriage Act, 1939 which again includes Lian and Fask. Though each of these practices have different procedures, the most commonly practiced are the Talaq. Under Talaq, there are two types, Talaq-e-Biddah and Talaq-e-Sunnah. As per the infamous argument that the Talaq was never mentioned in the Quran, many argue that the practice was derived from the popular teachings of the Quran.
Bid’ah, which essentially means ‘innovation in religious matters’ is leading to the practice of divorce over a phone call or an SMS. The islamic community is against the practice of Bid’ah. It was introduced by Ommeyyads in order to escape the strictness of law and is sinful according to the principles of talaq. It becomes irrevocable immediately when it is pronounced irrespective of Iddat (Period between the pronouncing of first talaq and the last, normally the time of three menstrual cycles of the woman.) Thus, once pronounced, it cannot be revoked.
During the Iddah of a revocable divorce, the parents of the divorced wife usually do not let her remain in her husband’s house, ignoring the Quranic teachings according to which the couple should remain under the same roof so that there is the maximum likelihood of resumption of the marital relationship. During Iddah, the husband is liable to pay alimony to the wife and kids, if present. Though the alimony goes on only for three months for the wife, the husband may have to continue maintaining his children financially.”
“Based on the Quranic teachings, the Prophet Muhammad, any talaq given for the period during which the husband can revert back to his wife is called Talaq-e-rujaee (revocable divorce). After the first or second pronouncement of divorce, even if the Iddah period is completed, the husband, prior to the pronouncement of the third divorce, has the option of taking his wife back by re-solemnization, with her consent. This type of divorce is called Talaq-e-bain Sughra. The third pronouncement makes the divorce final and irrevocable — it is then called Talaq-e-bain kubra or Mughallaza (the third, irrevocable divorce). The third divorce means that the couple can never rejoin, unless the extraordinary condition of Halala is fulfilled” according to the institute of policy studies, Islamabad.
The Supreme Court’s Shah Bano judgment of 1985, which granted an old Muslim divorcee a monthly maintenance for life under a secular law gained a lot of attention. As a result of the judgment, Shah Bano was criticized till she gave up her rights voluntarily. There were many voices against the proposition backed with the argument of Islam disappearing.
The petition to abolish the practice of Triple Talaq has kept the Supreme court busy. Although it’s not clear if the petition works towards abolishing Talaq as a concept or it supports negating the Talaq-e-Biddah, which is the instant dissolution of marriage by saying the word ‘Talaq’ thrice.
“During the last hearing, the apex court had said it would decide the issues pertaining to ‘legal’ aspects of the practices of Triple Talaq, ‘Nikah halala’ and polygamy among Muslims but not deal with the question whether divorce under Muslim law needs to be supervised by courts as it fell under the legislative domain.
In December, a bench headed by the Chief Justice, refusing to entertain a PIL demanding a Uniform Civil Code, stated: “If a victim of triple talaq comes to the court and questions the validity of the… procedure, we can surely examine the legality of triple talaq and find out whether it violated her fundamental rights” according to a report in the Firstpost.
Uniform Civil Code
Amidst the argument of the abolition of triple talaq, a proposition to promote Uniform Civil Code has also been prevalent in the last decade. The personal laws in India are very different considering the great diversity and differences.
Every community has it’s own personal laws according to their religious history and the present practice of their religion. Uniform civil code, is an idea that has send apprehensions among different religious communities, especially the Hindus, Muslims and the Christians about the ethics of their religion and the continuation of the free practice of their personal laws that has governed them for years since the British left India. The idea of the uniform civil code is to replace the personal laws with a set of laws that are derived from the ethical ideologies of each community and to have a common set of laws for all the religious communities. The diversity of a country like India would make it a challenge to accept an idea like the uniform civil code which may pose a threat to the cultural values of each religion.
Shari’a and Quran have been the main religious contextual guides for the Muslims. In the British India, there was always the dominance of the Hindus over any other religions and they have appointed pandits to interpret their shastras so as to make it easier for the court to understand the customs in a better way. Later, maulavis have been appointed for the same reason by the Muslims and they looked at their texts as the supreme guide to practice their religion and stick to their ethics. Muslim law was progressively Islamised. For the Muslims, the core rest that was translated for the use of officials was the Hedaya, chosen by maulavis, translated to different languages. The relation between law and custom remained a troublesome one, and dogged British efforts at producing a uniform code.
“There have been plenty of instances of protests against personal laws. One of the prime agendas of the women’s movement in India since the 1930s has been the discrimination faced by women in personal laws, across all religions. Earlier in March this year, Justice B. Kemal Pasha, a sitting Judge of the Kerala High Court had made a strong protest against
Muslim women being denied equal rights under the Muslim Personal Law. However, voices of protest against reforms in the personal laws has made it extremely difficult to make amends.” quotes a report by The Indian express.
Supreme Court’s Judgement in the case of Shamim Ara Vs State of Uttarakhand case — states that Talaaq will not be considered legal until reconciliation and arbitration takes place. And Talaaq has to performed as per the Quranic injunction. The Islamic groups believe that this has to be followed without any backlash or questions as the Quran answers all the questions around triple talaq.