By Zia Haq
Oct 14, 2016
A specious discourse is driving the battle over ‘triple Talaq’, the Muslim practice of divorce. This is keeping us from the real thing: that there is a case for — and possibility of — reconciling Islam with modernity.
The essential demands of modernity are justice, equality and freedom. Any conflict between these and religion must be resolved.
Yet, on the one hand, the regressive majoritarian discourse has been like this: if Muslims want Sharia, they could go to Pakistan. The social contract for Muslims, unfortunately, has been such that they are forced to trade votes for protection, rather than progress.
On the other, the All-India Muslim Personal Law Board (AIMPLB) has taken a self-defeating stand that Islam allows instant divorce or that a Muslim man can take up to four wives, no matter what. They have no answers to questions like this: if there is one immutable Islam, why are there four schools of Islamic thought, all equally valid?
They also fail to explain how Indian Muslims came to voluntary give up ‘Hudud’ or the criminal justice system under Sharia, the Islamic legal code, and instead opt for secular criminal laws, since according to them there can be no recant of Sharia.
The AIMPLB is naïve to think that any change in personal law violates religious freedom and pluralism under the Constitution. The Right to Religion (Article 25) is the weakest of all: it is subordinate to all other fundamental rights. They may know Islam, but they clearly don’t know the law. The AIMPLB is ill-prepared to deal with reality: religion can no longer regulate law. Rather, it’s the other way round.
Islam isn’t readily compatible with modernity and its attendant features, such as markets, capitalism or modern notions of freedom. No religion is. But where did all the great ideas of human values and justice initially come from if not from the faiths?
Prophet Mohammed married a woman under whom he worked, who was a widow and several years older than him. So, Muslims had a woman boss 1,400 years ago. Unfortunately, the AIMPLB isn’t equipped to even defend Islam. They haven’t bothered to explain the normative position that allows a Muslim man to divorce his wife by pronouncing the Urdu word for divorce — Talaq — thrice. Why is it that Muslims say ‘Talaq’ thrice when one is enough?
The Prophet’s instructions, as recorded, were that divorce is best secured by declaring ‘Talaq’ thrice over three months, so that both parties could go back, cool down and rethink. The spirit behind triple Talaq is to allow scope for conciliation, which is what modern family courts do.
This commonality has the seeds for a solution at a time when Muslim women have rightly claimed their right to equality.