AN organisation of Muslim women has moved the Supreme Court with an appeal for banning the custom of ‘Triple Talaq’ or the practice of divorcing one’s wife by uttering thrice the word ‘talaq’. This case, the Law Commission’s view and the Centre’s opinion have generated a debate across the country. Our time is a time when the value of gender equality has been socially and legally upheld, thanks to the advancement in the fields of knowledge, science, thought and technology. Little wonder that a Muslim man’s right to divorce his wife by uttering ‘talaq’ has been questioned in many corners. The debate as to whether this custom should continue is, therefore, a healthy one.
But tagging the demand for a uniform civil code with the demand for abolition of ‘Triple Talaq’ has made the issue more complicated. To profit from polarisation in the forthcoming Assembly election in various states, the BJP government has played this communal card on purpose. In the name of the opinion of the Law Commission, it has tactfully advanced its political agenda. The action of the BJP has triggered an opposite reaction. Muslim fundamentalists have got a chance to raise slogan of ‘Islam in danger’ and give a call for communal unity and ‘jihad’. The Congress has taken a strategic stand on this issue. The Trinamool Congress, the ruling party in West Bengal, has not clarified its stand on the controversial issue. Contradictory press statements by its MPs prove that the party prefers to sit on the fence although its opportunist stand is feeding and watering the politics of communal polarisation. To protect the interest of Muslim women, the CPI(M) has unambiguously demanded the abolition of ‘Triple Talaq’. The party has also maintained that the promulgation of uniform civil code and the abolition of ‘Triple Talaq’ are not identical issues, and therefore, must not be clubbed. Progressive Muslim women, particularly All India Muslim Women Personal Law Board (AIMWPLB), as well as a large section of Muslim intelligentsia have been very vocal about the abolition of ‘Triple Talaq’. All India Democratic Women’s Association has strongly supported their demand.
TRIPLE TALAQ AND UNIFORM CIVIL CODE
It will be unwise to mix up the issues of ‘Triple Talaq’ and uniform civil code. Not that the issues are unrelated. For a Muslim, getting divorce through pronouncement of ‘Triple Talaq’ is governed by Shariat laws, i.e. Muslim Personal Laws. Although the criminal law is uniformly applicable to all citizens, since 1937, Muslims of the country have been legally empowered to follow Muslim Personal Laws in matters of marriage, divorce, maintenance, adoption and succession. This practice continues. Not that adherents to other religious faiths, be they Hindus, Christians, or Sikhs, have no such Personal Laws governing their communities. But all these needed to be reformed to make them relevant to our time. But targeting only Muslim Personal Laws in the name of uniform civil code is a clear case of communal politics.
Human welfare and protection of rights of women should be the aim, but can this be ensured by promulgation of uniform civil code? In official statements of the central government, it is being claimed that Hindu Personal Laws have already been reformed. True, the Hindu practices were codified during 1955-56 and the Hindu Code Bill was passed in 1956. But has this succeeded in guaranteeing the equality of rights of Hindu women? Has it stopped persecution of women or murder of wives? Has it put an end to discrimination in matters of adoption, succession or choosing one’s life partner?
The Muslim Personal Law too needs to be codified and reformed so that the rights of women could really be protected. Such reforms have already been carried out in many Muslim majority countries. These Personal Laws came into force among the Arabs in the seventh century to fulfil the needs of the then society. In that time, many of these had probably been progressive enough. But are these relevant even today? Why should we not demand modernist reform of these laws? No Muslim parents would be happy today if their dear daughter becomes shelter-less because she has been driven out by her husband (by talaq) or if she is forced to share her husband with other co-wives (by keeping four wives).
TRIPLE TALAQ: FROM ANGLE OF RELIGION
According to Islam, marriage is a social contract which may be broken if the bond proves incompatible or is not a source of happiness. Although Talaq is admissible in Islam, the holy Quran says that it is considered the most hated by none other than Allah. In other words, divorce by ‘Triple Talaq’ for material gain is proscribed in Islam. Only in cases of unregulated conflict and quarrel one may avail oneself of the option of divorce by ‘Triple Talaq’.
The Quran says:
1. Surah: Annisa, Ayat 35: “And if you fear dissension between the two (husband & wife), send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them”.
2. Surah: Annisa, Ayat 128: “And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them—and settlement is best.”
3. Surah: Al- Baqarah, Ayat 227: “And if they decide on divorce, then indeed Allah is hearing and knowing.”
4. Surah: Al-Baqarah, Ayat 228: “Divorced women remain in waiting for three periods (to know if she is pregnant). In the meantime, if they want reconciliation, their husbands have the right to take them back in this (period). And the wives have the same right which is similar to what is expected of them, according to what is reasonable”.
INTERPRETATION OF TRIPLE TALAQ
Talaq was there in pre-Islamic Arabia. Islam legitimised it, subject to certain conditions. But pronouncement of ‘Talaq’ thrice for adulterous purpose or out of anger or in a drunken state will not cause divorce. ‘Talaq’ is to be pronounced separately on three occasions. In his book, The Spirit of Islam, Syed Ameer Ali states that Islam recommends three different periods for uttering talaq so that the couple might get time to repair their relation before divorce. If they fail, only then the third and final talaq may be pronounced.
A pertinent question here is whether the custom of divorce by uttering ‘Triple Talaq’ in the same breath is in accordance with Islamic convention. Although it is not endorsed by the Quran and was not in vogue during the time of Prophet Mohammed, this custom of ‘Talaq Bidah’ was introduced in the period of the second Caliph Hazrat Umar. It was brought into practice to handle certain cases temporarily and therefore is to be treated as exception. It was noticed that the time gap between three talaqs in many cases had not been used for exploring any chance of reconciliation between the husband and wife but for being unjust to women and for adulterous indulgence. To address this malady, the custom of uttering talaq thrice in the same breath to divorce one’s wife was approved. But turning it into a general law would be un-Islamic. Five hundred years after the death of Hazrat Umar, Ibne Rushid (1126-1198), the great liberal Islamologist, interpreted the scriptures and concluded that this ‘Talaq Bidah’ was an ad hoc arrangement, never valid in Islam. Ibne Taymiyyah, another great thinker who was born about five decades after the death of Rushid, gave the same interpretation and his interpretation has been accepted in countries like Egypt and Syria.
WHAT IS RATIONAL?
Muslim fundamentalists claim that because of the provision of talaq, wife-baiting is less in Muslim community. They argue that any attempt to abolish ‘Triple Talaq’ is an attempt to mollify the provisions of Muslim Personal Law, an attempt to marginalise the community. A sense of insecurity is rising among the Muslim population of the country because of mounting communal tension and the aggressive communalism of the BJP. Regrettably, Muslim fundamentalists are cashing in on this unhealthy state for counter-polarisation. We must resist communalism in any form, but we must not support the undemocratic primitive custom of ‘Triple Talaq’. We are not against divorce. If the rift in the relation between a husband and his wife widens, they may seek divorce with mutual consent. But why should a husband be given absolute right to discard his wife unilaterally by uttering talaq three times?
A counter opinion here is that Islam has granted talaq right even to women. But this right is conditional—it is to be mentioned in ‘kabilnama’ or marriage document of conditions. In this patriarchal system, where grooms admittedly have stronger bargaining power than the brides, how many parents are really in a position to insert the clause in the ‘kabilnama’? The consent of the bride is obligatory in Muslim marriages. Why should it not then be obligatory in divorce? In Islam, the husband is not bound to pay alimony to his divorced wife beyond three months treated as iddat or period of waiting. Whence will she get money for her maintenance if she is unemployed? Why should a woman suffer when, like Shah Bano, she is cast off by her husband 20-30 years after her marriage? It is not clear why Muslim women would be debarred from the protection Hindu women are entitled to.
In many Muslim countries, these personal laws have been reformed in tune with the changed time. In Egypt, Turkey and Tunisia, talaq outside the court of law is not legally valid. The Shariat law was reformed in Pakistan in 1961 and is in vogue in Pakistan and Bangladesh. Similar reform has been executed in Iraq and Iran. Then, by which logic can we sill forestall such reform in India? We should not forget that the Criminal Law of the Shariat is inapplicable to the Muslims even in India; the Criminal Law is uniform for all communities. Muslims have also accepted Uniform Criminal Code. Again, even some Laws of Civil Code (for example, Witness Law, Contract Law, Transfer Law, Guardianship Law, Law proscribing child marriage) are universal. Why then is there such a strong hue and cry about abolition of ‘Triple Talaq’?
It is true that the communal perspective from which the issue has been pushed forward by the RSS and the BJP is likely to create tension and disturb peace and harmony. Do Sangh cadres, who are so hell bent on uniform civil code and shed crocodile tears for the rights of Muslim women, have really any faith in gender equality? The real attitude of RSS to women will be clear from the writings of M S Golwalkar. He once proposed killing of Muslim women so that the growth of Muslim population in the country could be reined in.
Moreover, the civil code for all Hindus is not the same. For example, there are special provisions for the Nairs in Kerala. Is not the Succession Law in Tamil Nadu different? Many Hindu tribes follow such community specific rules and codes that are at variance with the Hindu Personal Law. Is there no special provision for the people of the Northeast? Again, as per Hindu Personal Law, the joint family is entitled to certain benefits of tax exemption, not enjoyed by members of other communities. To cap it all, can only law ensure equality? There are strict laws prohibiting dowry and child marriage. But have these evil practices been eradicated from society?
VOICE OF PROTEST
The All India Muslim Personal Law Board (AIMPLB) has made strong demand to retain ‘Triple Talaq’. It has submitted an affidavit before the Supreme Court to this effect. It is the same board which was most vocal against the SC judgement in the Shah Bano case. It is the same board which had once asked Imrana, a Muslim woman of Muzaffarnagar raped by her father in-law, to live with the rapist. But we must also keep in mind that AIMPLB is not the sole mouthpiece of Indian Muslims.
In 2005, AIMWPLB was constituted. This Board has been working hard for abolition of ‘Triple Talaq’ and for equality of rights of Muslim women. Many progressive Muslim educationists have been pleading for proscription of ‘Triple Talaq’. The Leftists also support this stand. Let us all be on our guards against the conspiracies of Hindu communalists and minority fundamentalists. Let us make an honest effort to uphold the question of equality of rights of women, not only of Muslim, but women of all communities. Let us support the demand for abolition of the practice of ‘Triple Talaq’.