By M J Aslam
January 7, 2019
Pre-View: When you fail to understand & resolve your own problems, then, those who suffer by your ‘inaction’ will certainly approach others for their resolution. Triple divorce is such a topic that has been over-discussed & talked through in India since decades drawing the attention of the Muslim Personal Law Board (MPLB) & Indian Muslim leaders to find a remedy to stop this aberration. But honestly, they have all failed & failed the community over decades to find a solution to this important issue that subsequently assumed the shape of “crisis”. Muslims blame others/non-Muslims for blowing the issue out of proportion, citing insignificant incidence of divorce among the Muslim community as compared to higher percentage of it among the others/non-Muslims. There is verifiable substance in statistics of much higher divorce rate among the other communities but it is undeniable that “small” issues, if left unsettled for decades, turn to “bigger” ones, especially when one knows that the “atmosphere” is quite favourable for it.
Background & implications: In post-Shah Banu general elections of India in 1989 a huge number of Muslim women voters were wood by the Congress headed by Rajiv Gandhi, after he enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986 following that Supreme Court judgment. Now, BJP-RSS combination who presently rule India has found an opportune moment post-Shayara Bano case [wherein the Supreme Court on 22-08-2017 held triple divorce/Talaq arbitrary & unconstitutional] to advance their “political agenda”. The Times of India dated 31-12-2018 quoting Anand Sharma of Congress. As such, they, to gain an advantage in next general of 2019, capitalise on the issue of Triple Talaq, with an ambition to woo the Muslim women voters in those elections.
Following the Shayara Bano ruling by the Supreme Court in the ratio of 3:2 on 22-08-2017, the ruling party at Centre came out in late 2017 with a draft of the Muslim Women (Protection of Rights on Marriage) Bill which was sent then to all State Governments (except J&K) for their “urgent views”. Sending draft law to States was just a formality to be completed under the recommendations of the Sarkaria Commission.
To recall to our minds, the Bill was earlier passed on 28-12-2017 by the Lok Sabha with overwhelming majority of RSS-BJP members who had hoped that it would be passed by Raja Sabha on last day of last monsoon session of the Parliament. To refresh memories, in 2017 when the Bill was passed by Lok Sabah on 28-12-2017, two Parliamentarians from Kashmir, Farooq Abdullah (NC) & Muzaffar Beigh (PDP), kept absolutely “mum” without objecting to passage of the Bill; though not-surprisingly in view of coming Assembly Elections this year, both the parties are now beating their chests. Nevertheless, Raja Sabha did not pass the 2017 Bill. So, a Fresh Bill was tabled in Lok Sabha in the present winter session of 2018 where it was passed by the Lok Sabha with overwhelming vote on 27-12-2018 & was sent to the Raja Sabha where it came up on 31-12-2018. In Raja Sabha, the ruling class did does not have required numbers to approve it, so the Opposition stalled the Bill in Raja Sabha on 31-12-2018 by moving a resolution seeking tat the Bill especially its criminalising provision making Triple Talaq punishable offence be referred to a Joint Select Committee for further scrutiny. In the meanwhile, the Triple Talaq Bill of 2017 stands withdrawn along with the President’s Ordinance of 19th September, 2018.
It may be mentioned that the draft committee was headed by Rajnath Singh, Indian HM including other ministers, namely, External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and his junior in the ministry PP Chaudhary. Under the draft law, applicable to Triple Talaq only & not Talaq in general, Talaq three times in oral, written, or electronic form like SMS, email and WhatsApp, would be bad, illegal and void. Under the draft bill, husband’s Talaq in any form, spoken, in writing or by electronic means such as email, etc, giving instant Triple Talaq would attract a jail term of three years and a fine. It has been made a non-bailable cognisable offence under the Bill. The draft law empowers divorcee-Muslim woman to approach a Magistrate for seeking “subsistence allowance” for herself and minor children & also the custody of her minor children. It is clear, however, that pronouncement of three Talaqs in single utterance or sitting by husband has been made “non-bailable offence” with severe punishment.
It needs further mention that earlier last year the Bill was sent to States & opposition parties for their “urgent” comments & views. A number of amends were suggested by opposition parties & members including AIMPLB. But all those suggestions of amending the law to make it more acceptable to Muslim community have been totally rejected by the India’ ruling party (RSS-BJP). If the law was to be passed in such a hurried haste, then, what was the fun of sending the draft law to opposition parties & States for suggestions? If it was to be passed in this manner of without consulting Muslim Community whom the law pertains, it is bound to raise many eyebrows about its passing. It is indeed a “politicized law”.
By making Triple Talaq non- bailable crime in India or criminalising Triple Talaq, the ruling class is trying to impress upon the Indian Muslim women that their “suffering” by aberrant husbands resorting to Triple Talaq will soon come to an end. It is “politically motivated strategy” of the ruling class to woo Muslim women voters, argument goes. The penal provisions in the draft law are not in good taste of Muslims in general & non-BJP ruled States.
One may rightly feel that this law is sure to be challenged in the Supreme Court for its most shameful, painful & arbitrary provision of criminalising Triple Divorce by punishing husband with three years jail term. If punishment of Muslim husband was the objective of the Law-Makers (RSS-BJP), then, where comes the good intention of rescuing the Muslim wives slapped with Triple Talaq? It blocks all re-conciliatory steps between the spouses. A husband jailed by the Court at the complaint of wife will hardly think of reconciling with her. The harsh provision will further harm the already strained relations between the spouses concerned in such a case.
If triple divorce is to be intended to be counted one pronouncement only, reconciliatory Raj-e-Talaq, punishing husband may not be helpful in bringing about desired reconciliation. But if the purpose of proposed legislation is “gimmicky politics”, then, it will finally fail the judicial test. Such a punitive provision is not found in those Muslim countries even where reforms in law of Talaq as per the Quranic law have been introduced. There is already the Protection of Women Against domestic Violence Act, 2005 in practice in India. Obviously, mere pronouncement of Triple Talaq without added factors as envisaged under section 3 thereof will not qualify it for “domestic violence”. Hence, the ruling class’s indirect resort to CRIMINALISE TRIPLE TALAQ through new legislation. Bringing law on par with the Quranic mandate of Talaq is all together different thing, it may be noted. Here object is totally different.
Way-out: That said, there are certain facts as below which cannot be lost sight of while dealing with the issue of triple divorce:
(1) Triple Divorce or Talaq-e-Mugalazah has been damaging the whole superfine procedure of Islamic divorce as prescribed in the Quran.
(2) It is an innovated form of Talaq or Talaq-e-Bidaa which is unanimously accepted by all Sunni schools of thought. There is Ijma on its being innovation, hence, most reprehensible. Shias & Ahle Hadees do not accept it as valid form of Talaq.
(2) In view of its being innovation, a clear deviation from set procedure of divorce in Islam, causing disrepute to the community & consequential suffering to the victim-Muslim-women, it has led several Muslim countries, namely, Algeria, Egypt, Jordan, Morocco, Sudan, Syria, Pakistan, Bangladesh and Yemen to abolish it & bring the law in conformity with the Quranic injunctions & Sunnah of the Prophet (pbuh).
(3) In India, the judiciary constantly from Shamim Ara Case in 2002 has had been trying to set the trend in conformity with the Quranic injunctions so that all possible measures were adopted for bringing reconciliation between the spouses before the Muslim husband pronounces Talaq and before Talaq is declared valid in the eyes of Muslim Law. As MPLB & Muslim leaders failed during these years to notice the judicial mood contrary to the practice of Triple Divorce in India, then, followed by BJP-RSS election-agenda of abrogating the practice in India, finally came the Supreme Court ruling in Shayara Banu case on 22-08-2017 that dealt a mortal blow to this practice without leaving space for MPLB to “debate & discuss” any more in this regard.
(4) Islamic law of Talaq as prescribed in the Quran represents the modern breakdown theory of divorce but for Triple Talaq. It was emphasised by a renowned jurist of India way back in 1971. Late Krishna Iyer, ex- judge Supreme Court of India, held:
“It is a popular fallacy that a Muslim male enjoys under the Quranic Law un-bridled authority to liquidate his marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him, if they (namely women) obey you, then do not seek a way against them’ (Quran IV : 34). …. in the absence of serious reasons, no man can justify a divorce, either in the eyes of religion or the law. … The Prophet was indeed never tired of expressing his abhorrence to divorce. ….. . However, the Muslim law as applied in India has taken a course contrary to the spirit of what the Holy Quran or the Holy Prophet laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.”(Yusuf v. Sowramma, AIR 1971 Ker 261)
A well known Muslim scholar, Syeda Saiyidain Hameed, a former member of Indian National Commission for Women and founder of Muslim Women’s Forum had also expressed dislike in an article Times of India on 16-11-2000, page 14 about the Muslim husbands’ flagrant violation of the prescribed law of Talaq. She wrote:
“The fact of the matter is that we Muslims selectively practice whatever suits our need. We ascribe our actions to our religious sanctions and continuously harp on our religious code. But we blatantly violate the injunctions of Islam. We pronounce Talaq without following the commands pertaining to it. Thanks to the way we practice it, Islam is looked upon by the world as the most anti-gender religion. For this perception, it is we Muslims who are to be blamed. It is time we applied the corrective to our own selves and stop using religion”.
(5). Between two contradictory views among Muslim jurisprudents of Sunni School of thought about the validity of Triple Talaq, there was & is always a room left in the Sunni jurisprudence by which the problem of Triple Divorce could have been /can be solved. This way out was/is possible through the use of the doctrine of Istehsan. The MPLB, therefore, could prefer/have preferred the view against this practice with strong arguments from the Quran and the Sunnah. The preferable juristic interpretation of Istehsan is fully sanctioned by the Holy Quran:
“Those who listen to the word, and follow the best (meaning in it), those are the ones whom God guided and those are the ones endowed with understanding” (Holy Quran, XXXIX: 18-Surah-e-Zumar).
Dr. Riyaz ul Hassan Gilani has explained the rule of Istehsan as:
“When a jurist finds that relative to a certain situation, more than one and mutually inconsistent rules are derivable from the legal framework, he gives preference to the one which is supported by the strong legal arguments from the Quran and the Sunnah. This process of juristic preference is termed as Istehsan. (Reconstruction of Legal Thought in Islam (1982) 160)
The doctrine of Istehsan, therefore, accepts the flexibility and adaptability to the Shariat. It permits the Muslims to seek the best course among many courses on a particular legal point. Given to the conflicting options of the jurists on the question of Triple Divorce, the Muslim Ulema can choose the one that has the solidarity of legal arguments from the Quran and the Sunnah or that is strengthened by the spirit of the injunctions of the Quran and the Sunnah. (See M J Aslam’s The Justification & Rationale of Muslim Divorce (2007), page 125).
(6) The institution of divorce was totally unknown to the ancient hindus.
“A Hindu marriage was a sacrament in the sense that a Hindu wife could never ask for divorce, or for another husband, even if her husband was a lunatic, impotent, leper, deserter, a chronic patient of venereal diseases or even a eunuch or a dead man. As regards the husband, he could always mock at this sacrament with impunity and arrogance by taking another wife into another and similar sacramental fold: and he could do so as many times as he liked…” (Dr. Paras Diwan, Modern Hindu Law (1985) 62, 65 quoting Manu Smriti: Hindu Marriage Act, 1956 gave for the first time the right of divorce to Hindu women)
On the other hand, Muslim Law from day one recognises the institution of divorce. While husband has a direct right of divorce by following “strictest conditions” under the Quran & Sunnah, woman can get it through Qazi/civil family court. (Supra M J Aslam’s Justification & Rationale of Islamic Divorce) But aberration of Triple Divorce has distorted the whole pristine pure picture of actual procedure of Talaq in Islam. The vested interests have been deliberately projecting this innovation of Talaq-e-Mugalazah as Only & Real Picture of Talaq in Islam (quite contrary to reality) with added-emphasis “adversely affecting poor women” in that community. Irony is that these, “pan-Hindu-nationalists”, are now displaying themselves as “messiah” of millions of socio-economically backward Indian Muslim women, rescuing them out of the “crisis”.
Since 2018 Winter Session of Parliament has ended, the Triple Talaq Bill has not been passed in Upper House, naturally the Bill has lapsed. Now two consequences emerge from it. One: If BJP re-wins the April-May 2019 Lok Sabha elections with majority vote, it will definitely again push the Bill afresh for passing in Parliament & if it has got majority vote in both Houses, the Bill will be through. Second: If BJP loses the upcoming elections & UPA wins it, then, obviously it will also reintroduce it in the Parliament afresh but most probably dropping criminalising provisions in it , and if it has majority in both the Houses then, the Bill in modified form taking concerns of Muslim Community on board will be passed as law, since the Supreme Court has already laid down the directions in Shahyara Banu case ante for the Central Government. Here Muslim Leaders through AIMLB can deliberate upon & consider the measures suggested in this article under “Way Out” by adopting doctrine of Istehsan.
M J Aslam is Author, academic, story-teller & freelance columnist. Presently, AVP, J&K Bank