May 19th 2017
“CAN something found to be sinful by God be validated by men through law?” And, “if God considers it a sin, it can’t be legal, can it be?” These were among the weighty questions posed by India’s Supreme Court this week as it heard from women who have brought a case against the practice of “triple Talaq”, whereby a Muslim man can divorce his wife simply by uttering the word Talaq three times. There is substantial evidence to suggest that this practice, while age-old, is not actually prescribed in the Quran. Why does India allow it?
India has no uniform civil code. Instead it has several, treating matters such as marriage, divorce, alimony and inheritance differently for members of different religious communities. Triple Talaq is part of India’s Muslim Personal Law. Yet it is not what was originally intended. The Quran recommends a process of dialogue over a 90-day period after Talaq is verbally invoked. The marriage survives if both parties reconcile within that time-frame; failing that, a divorce becomes valid on the 91st day. A second divorce proceeding can be initiated at a later date, again with a cooling period of 90 days. Should Talaq be called a third time, however, the divorce becomes irrevocable on the day the husband says the word.
This staggered system was meant to give couples the opportunity to end their marriages only after careful deliberation. The three-count limit was set to prevent the husband from pronouncing Talaq on a whim. The message appears to have got lost somewhere along the way, says Shadan Farasat, one of the lawyers arguing against the custom in its current form.
Over the years, men have ended marriages by phone, text, WhatsApp or through a newspaper advertisement, and for reasons as trivial as a delayed lunch. There can be little doubt that the tradition is unfair to women. (The Muslim Personal Law Board, a self-proclaimed custodian of Islam, argued before the court that “it is better to divorce a woman than to kill her”.) But previous governments have been wary of wading into the controversial realm where constitutional rights meet religious ones. That changed last October when the ruling Hindu-nationalist Bhartiya Janata Party’s (BJP) submitted an affidavit to the Supreme Court urging it to abolish triple Talaq on the grounds that it impinges on women’s fundamental rights. In March the BJP won a thumping electoral victory in Uttar Pradesh, India’s most-populous state and home to a Muslim minority of 40m. The BJP claims that its divorce-reform stance appealed to Muslim women there. Opponents deny it and say the government has raised the issue to appeal to its Hindu base.
Though triple Talaq is invoked in vanishingly few real-life cases, it is clear that the practice is unjust. Already more than 20 Muslim-majority countries, including neighbouring Pakistan and Bangladesh, have either banned it or devised Sharia-compliant marriage contracts to work around it. India, with the world’s third-largest Muslim population (after Indonesia and Pakistan), has failed to catch up. The government has vowed to pass a new matrimony law if the verdict, expected in July, is in its favour. The pity is that members of a minority that already tends to feel besieged will regard it as a case of the majority dictating the terms of their citizenship. The right thing done, perhaps, for the wrong reasons.