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Mainstream, VOL LV No 38 New Delhi September 9, 2017

Supreme Court Verdict on Instant Triple Talaaq — What does it mean for the BJP?

Saturday 9 September 2017

by Vahidha Nizam

The Supreme Court on August 22, 2017 gave a verdict banning instant triple talaaq. It indeed is a historic judgement in the context that it upholds equality to all irrespective of religion, caste, creed and gender as enshrined in Article 14 of the Constitution. By a 3-to-2 vote, a Supreme Court panel declared unlawful the practice in Islam that had allowed husbands to divorce their wives instantly by uttering the word talaaq (divorce) continuously in one go. In an order that runs into 395 pages, the Supreme Court has said: “In view of the different opinions recorded by a majority of 3:2, the practice of ‘talaaq e biddat’, the practice of instant triple talaaq is set aside.”

Addressing six petitions that demanded banning of the arbitrary practice of the instant triple talaaq, the five judges Bench fell divided in their opinion. Justice Kurian Joseph, Justice Rohinton Fali Nariman and Justice U.U. Lalit held that the practice is unconstitutional and therefore should be banned while the then Chief Justice of India, Justice J.S. Kehar, and Justice S. Abdul Nazeer were in favour of putting it on hold for a period of six months and asking the government to come out with a law in this regard.

All the three judges, who favoured banning the practice of instant triple talaaq, said it is “arbitrary” and “not part of Islam”. Justice R.F. Nariman said: “It is bad but it can be tested as legislation”, while Justice Kurian said: “It is bad but cannot be tested as legislation.” Kapil Sibal, the Congress leader and lawyer for the All India Muslim Personel Law Board, that opposed the ban, had said: “The verdict is welcome and not a setback.” While arguing the case on behalf of the AIMPLB which opposed the interference of the state in religious matters, Sibal had said that instant triple talaaq may be a sin, but that “setting the validity of customs and practices of a community is a slippery slope”. The argument that it is a slippery slope is valid in the backdrop of the ominous designs of the communal BJP.

The judgement in no uncertain terms is historic ensuring the constitutional right of Muslim women. Any law or judgement that ensures equality and uplift of women is a welcome step. But the keenness of the BJP and the Prime Minister, Narendra Modi in particular, to guarantee the well-being of Muslim women only rings in dubious resonance. This has to be seen in tandem with the appeal and question-naire issued by the Law Commission of India in October 2016 soliciting the views of the people on the Uniform Civil Code. The question whether rights, emanating from marriage, divorce, birth and succession, must be guided by religion or by constitutional guarantees has triggered intense debate, obviously not because of any inherent problem in the proposition but certainly because of the manner in which it was posed, selectively tagging with the Muslim community. In this background, in a deeper political percept, in logic and critical thinking, the argument of slippery slope fallacy certainly holds water.

The state Vs the non-state character of talaaq has come to the judiciary many a time and there have been judgements too. The verdict of the Supreme Court in the year 2002 in the case of Shamim ara Vs the State of UP had held instant triple talaaq invalid. In 2008, Justice Badar Ahmad of the Delhi High Court ruled that triple talaaq in India should be deemed as a single revocable talaaq. Again in Ziauddin Ahmad versus Anwara Begum, the Gauhati High Court ruled that a talaaq must be for a reasonable cause and must be preceded by attempts at reconciliation. The SC had endorsed the previous judgements of the lower courts limiting the prerogatives of the Muslim men in uttering talaaq three times in one go. For example, the Supreme Court had favourably quoted from an opinion of Guwahati High Court which reads as, “the correct law of talaaq as ordained by the Holy Quran is that talaaq must be for a reasonable cause and be preceded by attempts at reconci-liation between the husband and wife by two arbiters—one from the wife’s family and the other from the husband’s. Only if the attempts fail, then talaaq may be effected.”

Pronouncement of triple talaaq continuously at a time and dissolving the marriage is in contravention to Quranic principles and the Shariah. Arbitrary utterance of talaaq thrice over the phone or other modes of communi-cations like e-mail, whatsapp, sms etc. and thus ending the marriage is brutal and it is in clear terms heresy. This profane practice is a matter of concern and rightly the Muslim women initiated the demand for codification of rights pertaining to marriage, divorce, maintenance and inheritance. This demand stems out from the basic premise that any personal law belonging to any religion must be taken up in the framework of “constitutional rights”. Article 26 of the Constitution gives religious freedom to any religious denomination as well as any sect thereof. Besides, parts of the Muslim Personal Law have been brought in as separate Acts such as the Shariat Act 1937 and the Dissolution of Muslim Marriages Act 1937. These Acts are legislated in Parliament. If any of the laws are considered contrary to fundamental rights then the courts are free to strike them down as unconstitutional. That is what the Supreme Courts have done time and again in the matters of instant triple talaaq despite the stiff political ploys and patriarchal overreach and opposition of the Muslim clergy.

In the whole milieu, the Muslim community as a whole is pushed to the corner. There are determined efforts to project Islam as a regressive and backward religion. Relegating the real demand of the Muslim women for codification of the laws, the issue is completely politicised. The Indian Constitution allows for personal laws. The demand is within a specific community with regard to a specific practice. Uniform Civil Code is a wider debate and has wider ramifications. Why did the Law Commission come out with the idea of Uniform Civil Code when the Muslim women demanded codification?

The demand for codification of Muslim Personal Law pertaining to women and marriage emanates from the reportedly increasing instances of “instant triple talaaq”. The Bharatiya Muslim Mahila Andolan, the largest organisation of Muslim women in India having a presence in 13 States, is clearly opposed both to the government’s prescription for UCC and the All India Muslim Personal Law Board’s resistance to triple talaaq. The BMMA rightly claims gender equality under the constitutional and the Quaranic principles. But the patriarchal mind- set of some in the AIMPLB have stirred the hornet’s nest and as a result boosted the spirit of the BJP. Ironically though, patriarchy is universal irrespective of any religion when it comes to the question of women.

Instant Triple talaaq is Unquranic

In utter contrast to the general perception, Islam accords absolute sanctity to marriage. The practice of instant triple talaaq was a pre-Islamic Arab tradition. Instant triple talaaq is termed as ‘Talaaq e biddat’, where ‘biddat’ means innovation or in other sense heresy. There are miscon-ceptions about talaaq and halala which go widely to project Islam as being regressive against women. The Quran implies categorically that it is the intention that counts while pronouncing the word ‘talaaq’. It cannot be whimsical and impulsive. The Quran talks about Talaaq e Ehsan and Talaaq e hasan. In both these ways talaaq can be accorded only after a process of arbitration, mediation and reconciliation. The Ahsan form of talaaq is a single pronouncement followed by no revocation during the period of three month’s iddat. [Iddat is the period between two menstrual cycles (tuhr). In the event of the woman not menstruating it is one lunar cycle.] The period of ‘iddat’ provides space to reconcile and cool off. In talaaq e hasan the word is pronounced in three successive ‘tuhrs’. The first and second instances of talaaq are revocable. Talaaq can be revoked by way of conduct or word. Revocation is allowed unconditionally. The second pronouncement of talaaq also can be revoked just in the manner of the first one. However, if the husband utters the word talaaq for the third time then it becomes irrevocable. This is an authentic tradition recorded in the six books of hadiths. It is authentically learnt that the word triple talaaq is not found anywhere in the Quran. It is all concoction. It is biddat. Even the moulvis agree that it is biddat (innovation) and it is haram (forbidden). It is absurd and ridiculous that what is bad in theology is held as good in law, in the AIMPLB.

The practice of halala, as understood and projected, is a mere mockery too. If a divorced woman marries another man and if the second husband dies or divorces her for some reason, then she may marry the first husband if he is willing to, after sitting on ‘iddat’ for the second husband. (Iddat here implies the period of waiting that the woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of marriage would be known. The length of iddat varies according to a number of circumstances.)

The Quran accords equal rights of marriage and divorce for the Muslim women and men. It is the male-dominated clergy that make it dependant on the man’s consent. Khula is a practice where the wife initiates proceedings of divorce against the husband. Islamic scholar Moulana Madoodi has written that khula is the right of the woman to divorce her husband. The woman gets her divorce after returning her ‘mehr if she had got it or foregoing it if she had already not got it (mehr is the gift of the husband to the wife. It is the sole property o the wife.)’ Here the decisive voice is that of the woman. Khula is irrevocable. The woman decides it and the Quazi solemnises it.

Instant Triple Talaaq is abolished in 22 countries 

Most Arab as well as many Muslim states, such as Pakistan, Egypt, Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Yemen, Afghanistan, Libya, Qatar, Bahrain, and the United Arab Emirates, have abolished the practice of instant triple talaaq. All these countries have followed Ibn Taimiyah, a Sunni Muslim theologist, reformer, logician and a jurisconsult, according to whom the pronouncement of the word talaaq thrice continuously is equal to only one talaaq. Ibn Taimiyah is one of the most influential medieval writers in contemporary Islam. His particular interpretations of the Qur’an and the Sunnah and his rejection of some aspects of classical Islamic tradition are believed by some scholars to have had considerable influence on contem-porary Wahhabism, Salafism, and Jihadism.

But in India the All India Muslim Personal Law Board (AIMPLB) stands vitiated with its male chauvinistic position making the unquranic practice valid. It has lost its pre-eminent status and the moral and legal authority to decide a case which necessarily forms part of the Sharia. Had it declared triple talaaq illegal, then the writ petitions could have been infructuous. This would have lifted their moral authority and cut the BJP to size. But the adamant and patriarchal posture of the AIMPLB has today given the BJP a shot in the arm, an edge of the wedge.

What does the Data say?

Notwithstanding the appallingly low levels of social and economic backwardness among Muslims in India as documented by the Sachar Commission’s findings, for the purpose of this particular focus on marriage, dissolution of marriage and remarriage, we may look at the available data that do not pose that grave a position as has been projected. Kapil Sibal, the lawyer for the AIMPLB, had presented in the court that a minuscule percentage of 0.44 per cent of divorces are effected through instant triple talaaq. The Delhi-based Centre for Research and Debates in Development Policy (CRDDP) reported the results of its survey that showed that the incidence of this form of talaaq was less than even 1 in 100. The survey recorded 331 talaaqs reported by both women and men respondents, of which just one was “oral triple talaaq”, where “talaaq” was uttered three times in one go, without any witnesses or record. But the incidents are reportedly on the rise.

Another data from the ‘Marital Status by Religious Community and Sex—2011’ estab-lishes the empirical position. It reads as follows:

“Our principal finding is that the situation of Indian Muslim women seems far better than women from other religious groups. For example, the percentage of women staying in marriage is highest amongst Muslims (87.8 per cent) compared to Hindus (86.2 per cent), Christians (83.7 per cent) and other religious minorities (85.8 per cent).

“The percentage of widowed women is least amongst Muslims (11.1 per cent) compared to Hindus (12.9 per cent), Christians (14.6 per cent) and other religious Minorities (13.3 per cent). It is likely that the culture of widow remarriages provides a higher level of family protection to Muslim women compared to women from other religious communities.

“The percentage of separated and aban-doned women is also least amongst the Muslims (0.67 per cent) compared to Hindus (0.69 per cent), Christians (1.19 per cent) and other religious Minorities (0.68 per cent).

“The same census data suggests that the divorced women‘s percentage is higher amongst the Muslims ay 0.49 per cent and Christians at 0.47 per cent compared to other religious minorities (0.33 per cent) and the Hindus, at 0.22 per cent. The practice of getting a divorce amongst the Hindus is traditionally non-existent.”

Well...Are you aware of the Plight of Abandoned Women, Mr Prime Minister?

Talking about the red herring of instant triple talaaq, Prime Minister Narendra Modi masquerades as the saviour of Muslim women. Instead of indulging in such logical fallacy, he needs to focus his concern on the 43 million widowed women belonging to all parts of society. There are also close to a million divorced women in India. Do you know, Mr Prime Minister, that issues relating to separated and abandoned women are no less serious than that of triple talaaq? There is a huge section requiring social protection and institutional initiatives to provide succour to this vast majority. The Census 2011 reveals that there are 2.3 million separated and abandoned women in India; in absolute terms, that is more than two times the number of divorced women. There are close to 20 lakh Hindu women who are abandoned and separated; this number is 2.8 lakh for Muslims, 0.9 lakh for Christians and 0.8 lakh for other religions.

Hindu, Muslim, Christian, Sikh or any woman, wife of a Raja Bhoj or Gangu Teli, the plight of abandoned and widowed women in Indian society needs to be addressed with policies and projects. But the figures show the bitter reality that the governments hardly care except that they are always ready to play politics and score points over each other with women’s issues.

The intentions of the BJP are dubious. Modi sheds crocodile tears for the Muslim women. This tall talk of triple talaaq is a tag for Uniform Civil Code which will essentially be a Hindu Code. Indian conditions are not yet ready for a Uniform Civil Code.

Will this government stamp out khap panchayats that are festering fault-lines in the villages of Rajasthan and Haryana? The worst brutality of ordering rape of women as punishments has attracted the wrath of the international community. Subjugation of girls and women, atrocities on the Dalit women demonstratively continue to operate with complete impunity. Girls are prevented from wearing jeans and using mobile phones as being against Indian culture! Why Mr Modiji, you have not raised your little finger against this, shouldn’t the country know?

The country needs to know if the government has on its agenda to enact a law to curb ‘honour killings’ the incidents of which have spiked hugely since 2015. These incidents are rampant in the BJP-ruled States of Rajasthan and Haryana. Why isn’t the Prime Minister moved by the plight of these girls but only the Muslim women?

Why doesn’t the BJP speak of the Goa Family Law, the legacy of the Portuguese, that legalises polygamy? This law recognises the second marriage of a ‘gentile Hindu’ man of Goa if his wife does not have any children before the age of 25 or if she does not have a male child by the age of 30. It is the tip of the sanctioned sexism and is absolutely against the woman and her rights within marriage. It is the BJP Government there in Goa. Will they bring changes in the Goa Civil Code and ban the bigamy law?

Can of worms squirm and wiggle all over the issues of the social status of women in India. Constitutional right and equality is blatantly denied to women of all religions. If the government is truly concerned and committed, instead of acting to score political points, instead of taking a dubious move towards UCC, instead of meddling with the minorities’ rights, it should act swiftly to ensure social, economic and political emancipation of women. The AIMPLB should act sensibly to allow codification of women’s rights lest its moral responsibility may be marred. The BJP, that tacitly approves its Sangh Parivar to carry out its brutal blood-bath of Muslim minorities, wears a mask of deceit in offering relief to Muslim women. Prime Minister Narendra Modi may well know that his gimmicks as the torch-bearer of the rights of Muslim women will not ever inspire confidence.

Vahidha Nizam is the Secretary, AITUC.

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