The unprecedented move of the Supreme Court to hear the issue of triple talaq in the summer vacations and to refer it to a five-judge constitution bench speaks volumes about the gravity of this sensitive issue which has brought Muslim women’s rights to the forefront. The CJI JS Khehar listed the matter for summer vacations and expressed his willingness to sit even on a weekend to hear all the stakeholders between May 11 and May 19.
The judiciary should not lose this historic opportunity to rule in favour of Muslim women whose stand is backed, on one hand, by authentic verses of the Quran, which express a well-laid out procedure of talaq based on efforts of reconciliation and room for mediation, the necessity of two witnesses, categorical statements of Prophet Muhammad (SAW) and public support.
The holy Quran lays down an explicit procedure of divorce and devotes one chapter to the cause of it, emphasising on a gradual process of divorce. Here are some of the verses.
“Divorced women remain in waiting for three periods.” (2:228)
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment.” (2:229)
“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms.” (2:231)
“O Prophet, when you [Muslims] divorce women, divorce them for [the commencement of] their waiting period and keep count of the waiting period, and fear Allah, your Lord. Do not turn them out of their [husbands’] houses, nor should they [themselves] leave [during that period] unless they are committing a clear immorality. And those are the limits [set by] Allah. And whoever transgresses the limits of Allah has certainly wronged himself.” (65:1)
“And when they have [nearly] fulfilled their term, either retain them according to acceptable terms or part with them according to acceptable terms. And bring to witness two just men from among you and establish the testimony for [the acceptance of] Allah. That is instructed to whoever should believe in Allah and the Last day. And whoever fears Allah – He will make for him a way out.” (65:2)
The last two verses underline the process of reconciliation and mediation and necessitate two witnesses while the divorce is processed. Besides, the verses command husband not to drive his wife out while she goes through a waiting period of three months.
Despite these unequivocal verses, the All India Muslim Personal Law Board (AIMPLB) is determined to back the practice of triple talaq, no matter how robust your argument is. Interestingly, the AIPMLB considers the practice of delivering triple talaq in one go as sin but maintains that it shouldn’t be banned. Why is the board unrelenting on its regressive stand?
The board, along with its ideological mentor and allies such as the Darul Uloom Deoband, Jamiat-Ulema-E-Hind and Jamaat-E-Islami, is adamant on maintaining the validity of triple talaq which is arbitrary and instantaneous and leaves no scope for reconciliation.
A judicial intervention, sought by some of its worst-hit victims such as Shah Bano, in a practice which has deprived many women of their adoring husbands and rendering them homeless in a flash of the eye, has been portrayed, by the board, as judicial overreach and unsolicited intervention in divine laws.
The board has recently said in its affidavit filed in the apex court that the issues (triple talaq, nikah halala and polygamy) fell outside the purview of the judiciary and the latter should exercise restraint in this regard. The board then took refuge under the Article 25 of the Constitution which accords the fundamental right to the citizens to free conscience, practice and propagation of religion of their choice.
The board further contended that the issues which have been raised in a number of petitions fell within the legislative domain, and since divorce was an issue of a private nature, it cannot be enforced by bringing it under the ambit of fundamental rights.
The foregoing arguments of the board fall flat as the essence of the Quranic verses regarding divorce and halala go against the regressive stand of the board and all the arguments in the garb of secularism and the Constitution go against the discourse of gender justice and equality, which are the fundamental cornerstones of the Constitution. The centre, which is also a party, in this case, sought to oppose triple talaq on the ideal of gender justice.
The centre has been consistent in opposing the practice of triple talaq in which a man divorces his wife by delivering three divorces in one stroke. The practice, according to Islamic injunctions, is arbitrary, unilateral, detestable, draconian and exercised according to the whims of a man. The centre has questioned this archaic practice by invoking three principles: gender equality, secularism and binding international covenants.
Here are the four questions the centre framed for the consideration of the top court of the country:
A) Whether Article 25(1) of the Constitution is consistent with the issues of triple talaq, halala and polygamy?
B) Whether this article is subordinate to Article 14 and 21 of the Constitution?
C) Whether personal law is ‘law’ under Article 13 of the Constitution
D) Whether the controversial foregoing practices (talaq, halala and polygamy) are compatible with India’s obligations under international treaties and covenants to which it is a signatory?
The Muslim women led by Bharatiya Muslim Mahila Andolan (BMMA) have been active in their opposition of triple talaq as they perceive it anti-women and anti-Islamic. The BMMA, in its nationwide study, has revealed that a whopping 92% of Muslim women want an end to the practice of triple talaq which is known as Talaq-ul-Biddat in Arabic and it is a new innovation in Islam and did not exist until the time of the second Caliph Umar.
The BMMA was able to garner 50,000 signatures of Muslim women seeking an end to the practice. She has been the most vocal champion of women’s rights and actively campaigned to put a ban on the practice.
Oblivious to the opposition of media, Muslim women and the general public, the board is rigid on its anti-Islamic stand of maintaining the validity of triple talaq, overlooking the plight of its hapless victims who are thrown out of their houses in the heat of the moment.
The opposition of the board towards the invalidity of triple talaq has led to unnecessary and evitable judicial intervention and it has brought unsolicited disgrace on Islam. Indian liberal Muslims are united in case the apex court nullifies the validity of the triple talaq as it does not exist in the Quran.
The judiciary will have a tough challenge ahead in deciding the fate of polygamy as it is approved by the Quran, though with several harsh conditions that render it more or less rare among Muslims. In a shocking revelation, TOI published an article which says, “If you were to carry out an honest survey across the country, you would find that more Hindu men than Muslims have more than one wife.”
To sum up, the board could have avoided this controversy by reforming its stand in accordance with the Quranic injunctions. But the board, unfortunately, failed to do so.
Now, the issue is under the judicial scanner and we are optimistic that the judiciary will settle it once and for all.