By Free Press Journal
May 12, 2017
The Supreme Court on Thursday began the hearing on seven petitions that challenged the constitutional validity of ‘instant triple Talaq’ known as ‘Talaq-e-Bidat’ with some arguing that the practice is ‘unlawful and unconstitutional’ as the practice is not part of Islamic law. The hearing began with the court hypothetically questioning whether there are any alternative remedy open to Muslim men to seek divorce in case the ‘triple Talaq’ practice is abolished. Currently, Muslim men did not need to move to court to seek a divorce; they can instantly get a divorce by uttering ‘Talaq’ thrice. While a Muslim woman needs to approach a court under Section 2 of The Dissolution of Muslim Marriages Act, 1939.
The question was raised after senior advocate Indira Jaising stated that the practice of triple Talaq is ‘extra-judicial, unilateral, final and done without reasons’ and further compared it to ‘civil death’ for women. She further suggested that parliament should make a law so that Muslim men can approach court to seek divorce. To which Justin Kurian replied till the Parliament comes up with a new law, the 1939 act should be applicable to men also. Thus, bringing divorce for Muslim men under the statutory law. The court further stated that it has restricted itself to considering the constitutionality of triple Talaq and not extending it to polygamy.
There are several instances where a woman after the ‘instant-divorce’ is left with no help, rendered homeless overnight or traumatised for life. According to a survey conducted by the Bhartiya Muslim Mahila Andolan (BMMA) in 2015, out of the 525 Muslim divorces, 346 are oral, 40 through a letter, 18 on phone, one via SMS, three through e-mail and 117 through other sources. It clearly states that the practice should be abolished not just because it is unjust and inhuman but also because it is ‘un-quranic’. And that might be the reason more than 20 Islamic countries are not following it and consider it illegal, including Pakistan and Bangladesh.
‘Triple Talaq’ is nowhere mentioned in the Quran. In fact the religious text of Islam aims to give equal rights to both men and women. Among the many verses in Quran, one verse states that if reconciliation between a couple is not working out then mediators should be called from both the families and mediation process should be carried out over a duration of 90 days. If the process doesn’t work out then the couple may call for a divorce. Hence, the practice of triple Talaq is ‘un-Quranic’. Even India’s Shia community does not consider it legal. It is important that Muslim men and women should be educated about the Quranic principles of justice and separation.
According to the current practice, a man just needs to utter ‘Talaq’ thrice, re-marry and enjoy his life. But a woman needs to go through all the hectic process, starting with the knowledge of the law to hiring a lawyer to fighting a complicated legal battle. Women from different communities can obtain legal justice through various acts including The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and Christian Marriage and Divorce Act. Muslim women are deprived and needs to suffer issues of triple Talaq, Halala and polygamy, among others.
The literally translation of ‘Halal’ is ‘lawful’. A divorced woman can only become lawful after the ‘Nikah Halala’ is complete. According to the current practice a Muslim man can remarry the same woman twice. However, a woman cannot do so. But if the man wants to suspend the marriage third time and remarry the divorced spouse then the woman needs to marry another man, consummate the marriage and subsequently get a divorce and then remarry. It is also believed that after the pronouncement of ‘Talaq’ thrice the wife becomes ‘haram’ for the husband.
Polygamy is a practice to marry more than one wife. But is it really necessary to practice Polygamy in the 21st century? Muslim scholars often defend it by saying that it is only practiced during special circumstances when a woman is unable to give birth. Solution to the mentioned issue with medical advances is all together a different topic. The demand to put a ban on polygamy is the need of the hour. Talking about other religions like Hindu and Christian where even ‘bigamy’ is illegal and where a wife can take her in court, the Muslim women are deprived of the right.
The right of religious freedom should be enjoyed to both men and women. Unfortunately Muslim women are denied all the liberties owing to misinterpretations manufactured by the patriarchal orthodox bodies and so-called personal law boards. Let’s hope that the long-pending battle gives justice to the much-deserved Muslim women and the introduction of Uniform Civil Code (UCC) might help them to get at least the basic rights and dignity.