The arguments made by the All India Muslim Personal Law Board (AIMPLB)’s counsel, Kapil Sibal, in the apex court, which is hearing the issue of contentious triple talaq practice prevalent only in India, are flawed on several fronts:
The learned counsel says that the top court should not decide or interfere in one’s faith and belief.
- This argument falls flat as the court was approached by aggrieved Muslim women, who were either victims themselves or had sympathy with the victims. In October 2016, Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan, claimed to have the support of 50 to 60% of Muslim women who wanted to defeat the practice of triple talaq in court.
- The women reported the issue to the judiciary after they did not see any ray of justice from the Muslim clergy who are divided into sects and follow different schools of thought, with diverse interpretations of the Quran.
- Since the rights of women are at stake, and the judiciary is the custodian of the constitutional rights of Muslim women, it can’t afford a hands-off approach.
Kapil Sibal also said, “It is an age-old tradition and could not be considered unconstitutional.”
- This practice did not exist till the period of the second caliph Umar. In his quest to check the misuse of multiple divorces, Umar made them valid and irrevocable. He did so in particular socio-historical circumstances when people had made a mockery of the word talaq: divorcing their wives by uttering the word several times and then taking them back.
- There is one statement of the Prophet’s companion Ibn Abbas when he was asked if three divorces in one sitting counted as one. This was during the time of the Prophet and his companion Abu-Bakr and in the initial period of the second caliph Umar. Ibn Abbas replied in affirmative.
This statement demonstrates that the practice of triple talaq did not exist at the time of the Prophet; rather, it emerged during later periods.
Kapil Sibal further went on to say, “If I have faith that Lord Rama was born at Ayodhya, then it’s a matter of faith and there is no question of constitutional morality,” thus equating triple talaq with the birth of Lord Rama.
- The analogy seems to be farcical as the birth of Rama is part of mythology, whereas the issue of triple talaq is an addition in Islam which is known as bida’h (innovation).
The top lawyer, attorney general Mukul Rohtagi, on behalf of the Centre, argued that the government was concerned about equality and gender justice for Muslim women. The Centre has said that it wants to fight for women’s equality and gender justice. The attorney general further said that instant divorce was certainly not an essential part of Islam. “Can anyone say we allow human sacrifice just because it was practised earlier,” he argued. He then asserted that if the practice of Sati could be abolished, then why not triple talaq. The court retorted that Sati was abolished with legislative intervention and not by the judiciary.
The Centre’s argument was that it would come out with a law to regulate Muslim marriages and divorces would be tantamount to interfering in internal issues of Muslims. The judiciary was approached to repeal triple talaq and not the other modes of divorce such as talaq-ul-Ahsan and talaq-ul-Hasan. In these other modes, talaq happens in an extended format, allowing enough time for the couple to reconcile their differences. Muslims don’t want an unnecessary interference. Muslim women have approached the court to repeal one practice which they found as biased, discriminatory, and un-Islamic.
I tend to agree with Kapil Sibal when he says enacting a law in the matter of divorce would amount to a majority community forcing its views on a minority community. This problem can be tackled if we implement the talaq-ul -Sunnat method, which is more compatible with gender justice and would be in conformity with the provisions of the Holy Quran. The court should ban triple talaq and allow divorces to happen in accordance with the provisions of talaq-ul-Ahsan and talaq-ul-Hasan.