By Afroz Alam
I aptly remember the silent cry of my mother while watching a Hindi film, Nikaah, in late 1980s on television when she found that an educated and liberal Nawab divorcing his wife in a fit of anger by instantly pronouncing the word, Talaq (divorce), three times even without fulfilling the necessary requirements as suggested by certain schools of Islamic jurisprudence. It may sound melodramatic but this unilateral masculine exercise of Talaq is real and unduly haunts the everyday life of Muslim women. I was placed, more or less, in a similar situation just nine months ago, when my wife asked my stand on ‘Instant Triple Talaq’ while watching a fierce debate on television immediately after the submission of an affidavit by the All India Muslim Personal Law Board (AIMPLB) justifying its practice in the name of Sharia. I felt a sigh of relief in her eyes when I argued that ‘Instant Triple Talaq’ is not only misogynist and oppressive in character but also pre-Islamic and Un-Quranic.
Be that as it may, the sanctity of this practice is now under the consideration of a constitutional bench of the Supreme Court of India. Arguments from all parties are already made. And I am hoping that after synthesising the merit of the arguments from both sides, testing the religious essentiality of ‘Instant Triple Talaq’, and, finally, evaluating the constitutionality of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the Supreme Court will deliver a progressive judgment to save Muslim women from a ‘shotgun’ divorce system that allows men to use this tool to showcase their masculine power.
Contextualising Instant Triple Talaq
The whimsical exercise of Talaq has a root in Pre-Islamic Arabia, when men used to divorce their wife out of a sudden caprice and whim: at any time, for any reason or without reason. It was not only arbitrarily revoked and invoked without any limitation but also allowed sexual intercourse with their divorced wives with a clear impunity from any formal responsibility of maintenance or divine or legal punishment. It was in this background the idea of marriage as purely civil contract was visualised with the coming of Islam that confers on both the parties of the contract the power of dissolving their marital relationship under certain specified circumstances. Reasonable restrictions, procedures, and proper timings were pronounced with certain economic obligations like a payment of dower and maintenance to constrain the patriarchal exercise of Talaq. Despite recognising the evil necessity of Talaq and its inevitability in certain circumstances, the Prophet argued: “Of all the permitted things, divorce is the most abominable with God.”
Whatever may be, the sanctity of Talaq has to pass both methodological test and gender justice. In my opinion, the very idea of unilateral Talaq does not pass the essentiality principle of Islam; rather it militates against the real spirit behind the Quranic notion of marriage and divorce. The behest of Quran regarding Separation is: “And if you fear a breach between husband and wife, refer the matter to two arbitrators one chosen from the family of each party. If they desire agreement, Allah will effect harmony between them” (Quran IV: 34, 35). In other words, the husband has no power to unilaterally decide the matter of divorce; rather it rests with the judge who appoints two arbitrators, one from the family of wife and another from the husband’s family whose tasks are to ensure reconciliation between the parties. If all hopes of reconciliation fail, divorce is permitted, that too only on the final decision of the judge. In all probability, the form of Triple Talaq is an undesirable human innovation to accommodate the pre-Islamic privileges of men over women. We must admit that if there is anything clearly stated in the Quran, then all other authoritative sources appear meaningless. And the Quran clearly states that divorce is a process which is procedurally spread over at least three months. Divorce is not about the momentary use of the word Talaq three times in one go and that too without witnesses.
Mockery of Talaq
The very existential practice of Instant Triple Talaq and its justification is nothing but a mockery of Quranic principles. Taking advantage of this lethal customary idea, Muslim men extended their privilege of divorcing women using unfair means like SMS, Whatsapp, Telephone, Media advertisements, and so on. In modern times, the distortion of the Quranic system of Talaq has a background of conflicting interpretations of multiple schools of Islamic jurisprudence, colonial judicial pronouncements, the sanctions of ill-informed Mullahs and, finally, Muslim male chauvinism.
First, I have already argued in my New Indian Express article, titled “Muslim Personal Law and its Nuances”, dated 8th September, 2016, that “there are much-nuanced differences in the principle and practices of Shia or four schools of Sunni jurisprudence (Hanafi, Maliki, Shafi and Hanbali) and their sub-sects like Wahabi, Ahl-e-Hadith, Deoband and Barelvi and also the cultural pattern of each of these categories do not match with what is stated as Islamic by AIMPLB. Similarly, these laws are being constantly reworked in familial domain to bypass the so-called Islamic laws, thus giving primacy to the internal dynamics of kinship, caste, class and gender. The heterogeneous character of the Muslim community bars them from having unitary interests when it comes to personal laws…” There is neither consensus among the different schools of jurisprudence nor is there any uniformity in the cultural domain of Muslims with regard to Triple Talaq. The conflicting human interpretations neither did any service to Islam nor saved Muslim women from being oppressed with the misogynist tool of Instant Triple Talaq. Thus, in the absence of uniform and codified Islamic law, the very hypothesis of existing Muslim Personal Laws on Instant Triple Talaq being subscribed by all the diverse groups within Islam and doing justice to every section of Indian Muslims appears a chimera and thus becomes indefensible.
Second, the colonial judiciary has equally contributed in justifying the practice of Triple Talaq without putting much weight on the rational side of the Quran. For instance, in Ahmed Kasim Mulla v. Khatoon Bibi, Sarabai v. Rabiabai, Asha Bibi v. Kadir Ibrahim, and Rashid Ahmed v. Anisa Khatoon, the colonial court had justified the use of Instant Triple Talaq and considered it as sole prerogative of Muslim men. It was quite recently in 2002, the Supreme Court held that the triple divorce does not dissolve marriage.
Third, in many cases, the poor and disadvantageous sections among different groups of Muslims are unaware of the right way of Talaq and are, therefore, easily influenced by the Ulema and local Imams, that too without verifying their Islamic sanctions as per the Quran and Hadith.
Fourth, Instant Triple Talaq is a masterpiece of Muslim men chauvinism and it was allowed to exist despite the Prophet’s resistance and Quranic denial. In his book, Mohammedan Law, Ameer Ali rightly observes that the practice of Instant Triple Talaq is a human innovation and introduced during the second century of Islam when “the Ommeyade monarchs, finding that the checks imposed by the Prophet on the facility of repudiation interfered with the indulgence of their caprice, endeavoured to find an escape from the strictness of the law, and found in the pliability of the jurists a loophole to effect their purpose.” F.B. Tyabji in his book, Muslim Law, rightly says that men “always have moulded the law of marriage so as to be most agreeable to themselves.”
Contesting the contemporary Defence of Triple Talaq
The recent scholarly defence to Instant Triple Talaq is, first, based upon the minimum percentage of divorce among Muslims. This statistics is according to the data of 2011 Census, which highlights that only 0.49 per cent Muslim women were divorcees. Second, there is a minimum issuance of fatwa (6.5 per cent) to justify Triple Talaq. Third, the reform in Muslim personal law should come from within the community and that too in piecemeal manner. Fourth, instead of judicial denial of Instant Triple Talaq, the notion social boycott was offered to help women in a concrete manner. Fifth, the debate on Instant Triple Talaq is irrelevant as the most substantive issue is the economic protection of Muslim women in her post-Talaq life.
Undoubtedly, there is a merit in each of these defences and changes in rigid stand of certain Muslim bodies are laudable. But what they missed is the fact that the very idea of Instant Triple Talaq is discriminatory and unjustified in the best sprit of Islam. Offering quantitative analysis of least number of Instant Triple Talaq cases is just like justifying a society which lets ten people starve and shrug and say it is not a hundred thousand. The problem with this form of Talaq is not more in its use but in its ‘threat value’ that works like the sword of Damocles permanently hanging over a woman’s head. Even the supposed minimal use of fatwa does not justify the existence of Instant Triple Talaq as there is no mechanism to address the deviant clerics who issue it for dubious reasons. We must realise that it is not the Quranic approval but the bigotry of certain clerics that has always tried to suppress the moral worth of woman. Similarly, piecemeal reform is a rare possibility as the practice is linked with the patriarchal articulation of superiority of men over women. It can be seen in the valiant survival of this practice for 1400 years. When Muslim men turned deaf to the call of the Prophet and the Quran, then no other person or institution could be capable enough to change the attitudinal defiance of men. The only remedy is to criminalise the practice through state laws with certainty of punishment. The piecemeal reforms may take place after the legal entitlement of the women to challenge this unilateral practice in the court. We must acknowledge that in an entrenched patriarchal society, social boycott of the husband unilaterally discarding his wife has no value.
Yes, there is certainly a need to address the socio-economic miseries of Pre-and Post-Talaq Muslim woman. The present government, which is showing extraordinary generosity towards Muslim women, should come out with policies and programme to rehabilitate the divorced women by creating guidance, counselling, rehabilitation, and reformation centres, launching special welfare fund to enable the divorced women start a fresh life, ensuring the rights of Muslim women to get their due dower and maintenance and most particularly the share in their ancestral property, providing them better educational opportunities and vocational training and so on.
To sum up, we should come forward to say ‘no’ to Instant Triple Talaq as it represents not only the sorry picture of Islam but also bringing a huge embarrassment to the community. There is a need of radical change in our attitude to enable a sense of freedom to our women from their psychological stress of being divorced unilaterally, if they demand their rights as equal partner enshrined in the Quran. It is a wrong proposition to seclude Muslim women in the name of cultural distinctiveness of Muslim society. Those of my generations, who have already landed in the 21st century, have already started showing their uneasiness about this prevailing perception of throwing Muslim women on the scrap heap. We have to welcome a progressive judgment, if it may, in the best interests of at least those poor, semi-or-illiterate women, who are easily discarded by their husbands and forced to live a helpless and stigmatized life.
Dr. Afroz Alam is Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University (MANUU), Hyderabad.
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