By Prem Anand Mishra
May 6, 2016
Whether it's Pakistan cricket legend Imran Khan’s infamous divorce via text message where he wrote ‘Talaq’ thrice and parted ways with his wife, former BBC journalist Reham Khan, or the famous Shah Bano case in India, the sanctity of the institution of marriage has been tarnished time and again by age-old theocracies. Most glaringly by Talaq.
Talaq is an Arabic text in Muslim Laws, and means freedom from the bondage of marriage by the husband in accordance with the procedure laid down by the Sharia law in Sunni Islam. But in Shia law, Talaq has to be pronounced orally. Under some schools of Sunnis, a Talaq pronounced under compulsion, coercion, undue influence, fraud or under intoxication is invalid.
Instantaneous triple Talaq means a man can divorce his wife by pronouncing the word thrice.
A recent survey by the Bharatiya Muslim Mahila Andolan (BMMA) suggests that 92% of Muslim women in India want the practice of ‘triple talaq’ to end.
Recently, when 35-year-old Shayara Bano from Kashipur, Uttarakhand, filed a petition in the Supreme Court to question the sanctity of 'talaq’, her story made headlines. It seemed like the shadow of the famous Shah Bano case had resurfaced to haunt the authenticity of triple Talaq in general, and instantaneous triple Talaq in particular.
The Shah Bano case was a controversial maintenance lawsuit in India, in which Shah Bano, a 62-year-old Muslim, mother of five from Indore, Madhya Pradesh, was divorced by her husband in 1978. But even after winning the case at the Supreme Court of India, Bano was subsequently denied alimony because the Rajiv Gandhi regime enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which set aside the Shah Bano verdict and reversed the judgement under pressure from Islamic orthodoxy.
But Shayara Bano said, ''The SC has given 6 weeks time to All India Muslim Women Personal Law Board to take a decision. I am confident that I'll get justice from SC.''
The All India Muslim Women Personal Law Board, led by Shaista Ambar, had asked the Supreme Court to intervene. Although a high-level committee set up by the Central government to review the status of women in India has reportedly recommended a ban on the practice of oral, unilateral, triple talaq and polygamy, Muslim organisations shrugged its recommendations and deemed them a Hindutva conspiracy.
A Subjugation Of Women?
The question of abolishing triple Talaq is not just a movement against patriarchy, but a call for justice for women's rights. But for a majority of Muslims, this isn’t only a clear interference on the Supreme Court’s part in personal and religious laws of the community, but it is also a violation of the religious freedom given to the people of India by the Constitution.
Shayara Bano's case is a chilling story of anguish, pain and grief, but other such stories are equally horrifying.
In the recent Assam elections, in a bizarre turn of events, a Muslim man, Ainuddin, reportedly divorced his wife Dilwara Begum who defied the village diktat by not voting for Congress, but for a BJP candidate instead.
But the Muslim Personal Law Board and other major Muslim representatives of Sunni Islam in India, and the Darul Uloom Deoband and Barelvis, are not in favour of any extra religious judicial interference despite the large section of women. It might sound bizarre, but the Deobandis and Barelvis had justified the instantaneous triple Talaq against women by a man, even in a drunken stage or under intoxication, by simply calling it a man’s right under Sharia law.
However, the Muslim Personal Law Board is ready to revisit their position, even echoing the sentiments of annulling instantaneous triple Talaq, if not the triple Talaq.
The Larger Question Remains - Is Triple Talaq Or Instantaneous Triple Talaq Really A Quranic Message?
More than 20 Islamic countries including Egypt, Sudan, Jordan, Iran, Syria, Lebanon, Morocco, Iraq, and even Pakistan and Bangladesh, are updating Sharia laws relating to marriage and have imposed a court injunction against a husband pronouncing Talaq.
In Turkey and Cyprus, unilateral divorce has been disapproved and needs court intervention. Theologians and experts on Islam believe it is just a rigidity of clergies, and nowhere does the Quran sanctify it.
Sunni Islam in India, or mainly in South Asia follow the Hanafi laws, one among four main jurisprudence system in Sunni Islam, other than Maliki, Shafii and Hanbali.
According to interpretation of Hanafi laws, instantaneous triple Talaq is valid even through WhatsApp and Facebook. Marriage in Islam is a contract and since Muslim laws are not codified, law always remains open to interpretation, and thus in complete control of the clergies. Arif Mohammad Khan, a minister in the Rajiv Gandhi government, who resigned over the Shah Bano case, once remarked, ‘We Muslims in India have contracted our religion to the clergy. We don’t apply our own mind’.
The Call for Uniform Civil Code
The issue of triple Talaq isn’t an easy call and requires major political will. Although Muslim personal laws, like other minorities, are constitutionally sanctified, they are not as absolute as many court judgments suggest.
The Muslim Personal Laws (Sharia Act) enacted in 1939 are still not codified, and at times there is a larger voice to introduce Uniform Civil Code, endorsed in the Directive Principles of State Policy. But without consultation and demand from the Muslim fraternity, this can create an issue. Muslim voices have at times shared their women’s sentiment for annulling these highly patriarchal rights. In fact, Muslim reformers, led by the late Asghar Ali Engineer, voiced to get a model Nikahnama to rule out Triple Talaq, and to settle the alimony (Meher) at reasonable and realistic levels in the marriage document itself. However, many secular voices hailed the demand for civil code.
Left wing historian Romila Thapar even said that secularism in India can’t be achieved until UCC is allowed. The Bharatiya Muslim Mahila Andolan, based in Mumbai, says oral divorce is not in keeping with the spirit of Islam. It organises “hundreds of workshops to raise awareness” and takes up cases in courts. The Andolan has also been active in pushing Haji Ali Dargah to reopen its doors to women.
All India Muslim Women’s Personal Law Board released a 12-page "Sharai Nikahnama", but the issue is not settled yet. The fact of the matter is that although Muslims in general are not against the change in the present laws, a wider consultation has to be framed and shouldn’t be forced. The issue is serious and can be a watershed for millions of women Muslims in India. The only caveat - it shouldn’t be seen as a ball game between right wing extremes and false clergy claims.