by Hilal Ahmed
Let us begin with a few frequently used terms:
‘Triple talaq’ refers to a practice which empowers a man to divorce his wife by saying ‘talaq, talaq, talaq’ in one go.
‘Mehr’ is a sum of money or other property to be delivered to the bride by the bridegroom at the time of the nikah as a prerequisite for the solemnization of their marriage, as specified in the nikahnama.
‘Iddat’ is the period of time (approximately three to four months) during which a divorced woman/widow cannot remarry another man.
‘Nikah’ is a contract of marriage between a man and a woman. The nikahnama is a document which specifies the terms and conditions of this agreement.
‘Sharia’ or ‘shariat’ is a collection of rules and norms that have been codified following the Quran and Hadith (laying out the sayings and acts of Prophet Muhammad). Since this codification is subject to various interpretations, there are various shariats among Sunnis and Shias.
‘Nikah halala’ is also a frequently used term. Once a woman has been divorced, her husband is not permitted take her back as his wife unless the woman undergoes nikah halala, which involves her marriage with another man who subsequently divorces her so that her previous husband can remarry her.
The practice of triple talaq, we must note, is legitimate among Sunni Muslims of the Hanafi shariat. Although we do not have adequate statistical information about the sect-wise population of Muslims in India, it is believed that Sunni Hanafis are in the majority, at least in the northern states. But there are four other schools of Sunni shariat—Hanbali, Shafi, Maliki and Ahle-Hadith. These schools have their own interpretations of rituals and customs and specific norms for divorce. The AIMPLB itself recognizes this Islamic religious plurality in India. In fact, one of the stated objectives of the AIMPLB is:
To promote goodwill, fraternity and the feeling of mutual cooperation among all sects and schools of thought among Muslims, and to generate the spirit of unity and coordination among them for the common goal of safeguarding the Muslim Personal Law.1
There are two questions are important here: Does the AIMPLB determine the everyday conduct of the religiously diversified Muslim communities? If so, do Muslims, particularly the followers of the Hanafi shariat, practise triple talaq precisely because of their religious adherence to Islam?
Muslim contestation over triple talaq
The survey conducted by the BMMA is very relevant in this regard. The report, entitled ‘No More Talaq Talaq Talaq: Muslim Women Call for Ban on an Un-Islamic Practice’, which is based on an extensive survey, argues that over 92 per cent of Muslim women in India are not in favour of the practice of verbal triple talaq. The report also discusses 117 specific cases where triple talaq was practised and women were divorced without their consent.2
A close reading of these testimonies suggests that triple talaq is actually used by Muslim men as a legitimate religious weapon to subjugate women. The report finds dowry demands, not giving birth to a male child and the husband’s affair with another woman to be some of the main reasons for divorce. The report claims that these sociocultural issues produce and sustain various forms of patriarchal power structures.
In order to justify this specific Indo-Muslim form of patriarchy, the report argues, a selective anti-women interpretation of the Quran is employed. This is the reason why many women are deprived of the legitimate mehr amount after the divorce, which is supposed to be given to them at the time of marriage. Evoking the centrality of the gender question, the report stridently contends:
Muslim orthodoxy in India does not want to entertain any talk of personal law reform and the Hindu right is pushing for the Uniform Civil Code (UCC). The truth is both these sections are coming from extreme points-of-view and both are equally patriarchal.3
A powerful argument in favour of Islamic reform is also asserted:
We have to begin a process of [. . .] social reform involving the whole community and the elected representatives. Indian democracy allows for regulation of family matters based on each one’s religious texts. The Christian and the Parsi minorities have taken recourse to these Constitutional provisions and enacted their personal laws accordingly. It is the Muslim orthodoxy signified in the self-appointed personal law body that is resistant to any reform within the agreed framework. It is anybody’s guess as to how representative this body is as far as the Indian Muslim population is concerned.4
The writ petition filed by the Shayara Bano in the Supreme Court also makes a similar argument. (Though, unlike the BMMA, it favours the UCC). There are five main demands made by Shayara Bano in this case:
The divorce deed issued by her husband should be treated as illegal and unconstitutional as it violates Articles 14, 15, 21 and 25 of the Constitution.
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, should be declared unconstitutional as it seeks to recognize and validate talaq-e-bidat (triple talaq) as a valid form of divorce, the practice of nikah halala and the practice of polygamy.
The Dissolution of Muslim Marriages Act, 1939, should be declared unconstitutional as it fails to secure for Indian Muslim women protection from bigamy.
The practice of polygamy should be declared illegal and unconstitutional.
A Muslim woman whose marriage has been terminated by a valid and legally recognized form of talaq by her husband may remarry her husband without an intervening halala marriage with another man.5
These five demands should also be read in relation to the ongoing debate on the UCC. The petition calls upon the state to implement the UCC (which is, in any case, simply a proposal!) to secure and protect the constitutional rights of Muslim women. But at the same time, gender-sensitive interpretations of Islamic texts are also evoked to condemn the practice of triple talaq as an un-Islamic, inhuman and unconstitutional custom. In other words, Shayara Bano’s petition does not find any conflict between the gender-just UCC and the Islamic religious identity of Muslim women.
Since Shayara Bano does not give up her Islamic identity and even goes on to challenge the claim made by the AIMPLB as the sole custodian of Islam, the AIMPLB finds it difficult to take a conventional ‘Islam in danger’ type position this time. The AIMPLB’s counter affidavit actually underlines an interesting unease. It opposes the writ petition on five grounds. It states:
The questions raised in the petition are matters of legislative policy.
Personal laws cannot be challenged as being violative of Part III of the Constitution.
The personal laws of a community cannot be rewritten in the name of social reform.
Article 44 of the Constitution of India, which envisages a Uniform Civil Code, is only a directive principle of state policy and is not enforceable.
Muslim personal law is based on holy scriptures—Al-Quran and sources based on the same.6
The last two justifications are important. The AIMPLB poses the issue of the UCC as legally problematic and religiously unacceptable. If the AIMPLB believes that Islamic shariat (or shariats) constitutes a ‘complete way of life’, why is there is no demand to implement shariat laws in relation to those ‘criminal cases’ in which Muslims are involved?
The affidavit also uses Islam selectively to counter Shayara Bano’s petition. It says:
Almost 90 per cent of Indian Muslims are Sunni Hanafi, and the rest 10 per cent consist of Shafais and Ahle-Hadiths. Shafais endorse the Hanafi stance on this issue that triple talaq in one go constitutes effective talaq and results in the immediate termination of marriage.7
But what about Ahle-Hadiths who do not subscribe to this practice of triple talaq?
It is worth mentioning that the general secretary of the Ahle Hadith, Maulana Asghar Ali Imam Mehdi, in an interview, said:
We oppose the idea of triple talaq. This is not in keeping with the Quran and Hadith. We treat talaq said thrice in one go as one utterance only and taking full cognizance of how the Quran frowns upon divorce and advocates measured and patient attempts at rec
onciliation and the presence of proper ‘panches’ or wise counsel-givers in the process, we are opposed to this form of talaq.8
The AIMPLB’s counter affidavit does not pay attention to this form of Islam. It goes on to defend not merely triple talaq but also the practice of nikah halala, polygamy and, above all, the superiority of men over women!
Let us sum up this highly diversified internal Muslim debate on triple talaq:
The conventional ulema representing the AIMPLB support the practice of triple talaq on legal as well as religious grounds.
The Ahle-Hadith sect of Sunnis opposes the practice of triple talaq on religious grounds without challenging the AIMPLB directly.
The BMMA opposes triple talaq on religious, social and cultural grounds, but it is not in favour of the UCC.
The writ petition filed by Shayara Bano and others opposes triple talaq on constitutional and Islamic grounds. However, they argue for a gender-sensitive UCC.
Supreme Court judgement
In August 2017, the Supreme Court delivered its much-awaited judgement on the triple talaq case. Notwithstanding the media hype, this nuanced judgement was not adequately discussed. As a result, public discussions continued to revolve around the claims and counterclaims made by the two dominant stakeholders—the AIMPLB and the overenthusiastic government. Interestingly, both of them celebrated the judgement and described it legally appropriate and socially egalitarian! Muslim women’s groups and women petitioners were seen as voiceless sufferers whose cause is represented by the government. The question is: If it was a win-win situation for all, who was the loser in this case?
The Supreme Court systematically explored the issue of triple talaq and tried to locate it in the realm of constitutional law. Written in a highly lucid and argumentative manner, the verdict made it clear that the judicial proceedings should be separated from media-driven political discussions. This clarity is invoked to argue that the triple talaq phenomenon is inextricable linked to the legislative competence of the Parliament and the task of the judiciary is simply to explicate the nuances involved in this unjust practice.
There are three arguments inherent in the judgement. First, the court does not find any reason to interpret triple talaq or ‘talaq-e-biddat’ as a violation of Article 25. It is emphasized that this practice does not go against the other fundamental rights given to citizens, such as equality before law and the prohibition of discrimination on the grounds of religion, race, caste, etc. In fact, the court identified this practice as an inseparable constituent of Muslim personal law. (However, it also makes it very clear that personal law in the context of triple talaq only refers to the shariat governing the Hanafi School of Sunni Islam.) It is argued:
We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi School. It constitutes a matter of their faith. It has been practised by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law’ has the protection of Article 25 of the Constitution.9
The second argument goes beyond these legal technicalities and addresses the most contentious issue: the reforms in Muslim personal law. Recognizing the fact that triple talaq is a social–religious problem, the judgement unequivocally argues that this evil practice must be banned, for creating a gender-just and egalitarian social order.
At the same time, however, the court clarifies that the task of the judiciary is to evaluate the merits and demerits of a social question from the point of view of constitutional law. This statutory power does not authorize the court to intervene in the legislative sphere of the Parliament. Likewise, the judiciary cannot get involved in the religious sphere of the communities either. If a religious practice becomes socially complicated, the Parliament—being the representative body—should come forward and initiate the process of reforms, including in the realm of personal laws.
This reasoning is justified on historical grounds. The court argues that the reforms to personal law in India, with regard to socially and culturally unacceptable practices in different religions, have transpired only by way of legislative intervention. The Constitution empowers the Parliament to make adequate laws to reform religious practices. The Parliament, it is strongly emphasized, may follow this constitutional route to set aside the practice of triple talaq. The court observes:
We understand that it is not appropriate to tender advice to the legislature, to enact law on an issue. However, the position, as it presents in the present case, seems to be a little different. Herein, the views expressed by the rival parties are not in contradiction. The Union of India has appeared before us in support of the cause of the petitioners. The stance adopted by the Union of India is sufficient for us to assume, that the Union of India supports the petitioners’ cause. Unfortunately, the Union seeks at our hands, what truly falls in its own.10
The third argument underlines the most interesting aspect of the triple talaq controversy. The court finds that all stakeholders—the women petitioners, the government and the AIMPLB—agree that the practice of triple talaq is a social evil and must be stopped. However, they propose different possible routes to get rid of this perverted custom.
The government and the main petitioners in the case claimed that that this practice should be banned by the judiciary. The AIMPLB, on the other hand, questioned the judicial intervention and asserted that triple talaq, being a social problem, should be resolved by the Muslims themselves. The court recognizes the merit of these two conflicting claims for making a crucial distinction between the problem and the proposed solutions. Invoking the ‘advisory’ submitted by the AIMPLB as evidence to show its commitment for eradicating triple talaq (see Box 1 on the following page), the court observes:
A perusal of the above affidavit reveals, that the AIMPLB has undertaken to issue an advisory through its website, to advise those who enter into a matrimonial alliance, to agree in the nikahnama, that their marriage would not be dissolvable by ‘talaq-e-biddat’. The AIMPLB has sworn an affidavit to prescribe guidelines, to be followed in matters of divorce, emphasizing that ‘talaq-e-biddat’ be avoided. It would not be incorrect to assume, that even the AIMPLB is on board, to assuage the petitioner’s cause.11
Keeping this broad consensus in mind, the court proposes two practical solutions: (a) The Parliament should make a law to ban triple talaq within a period of six months and (b) Until the law is passed, triple talaq as a practice must be treated as legally invalid. It is stated:
Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same time)—as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.12
Box 1: Affidavit submitted by the AIMPLB
‘I am the Secretary of All India Muslim Personal Board will issue an advisory through its Website, Publications and Social Media Platforms and thereby advise the persons who perform ‘Nikah’ (marriage) and request them to do the following:- (a) At the time of performing ‘Nikah’ (marriage), the person performing the ‘Nikah’ will advise the Bridegroom/Man that in case of differences leading to Talaq, the Bridegroom/Man shall not pronounce three divorces in one sitting since it is an undesirable practice in shariat; (b) That at the time of performing ‘Nikah’ (Marriage), the person perf
orming the ‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by her husband in one sitting.
I say and submit that, in addition, the Board is placing on record, that the Working Committee of the Board had earlier already passed certain resolutions in the meeting held on 15th & 16th April, 2017 in relation to Divorce (Talaq) in the Muslim community. Thereby it was resolved to convey a code of conduct/guidelines to be followed in the matters of divorce particularly emphasizing to avoid pronouncement of three divorces in one sitting. A copy of the resolution dated April 16, 2017 along with the relevant Translation of Resolution Nos. 2, 3, 4 & 5 relating to Talaq (Divorce) is enclosed herewith for the perusal of this Hon’ble Court and marked as Annexure A-1 (Colly) [Page Nos. 4 to 12] to the present Affidavit.’
The reception to the judgement was very interesting. Despite the fact that triple talaq as a practice had been banned by the judiciary, the AIMPLB welcomed the verdict. The official statement issued by the board said, ‘The judgement vindicates our stand and ensures the fundamental right of citizens of this country to freely profess and practise their religious faith/beliefs.’13
This overtly positive reading actually underlined the nature of AIMPLB’s politics. The public image of the board as a representative body of Muslims is legitimized by the court. In such a scenario, the judgement is seen as favourable and supportive. Since the court has asked the Parliament to make a new law considering the claims of all the stakeholders, there is a possibility for the AIMPLB to reclaim its status as the apex Muslim religious organization. If the AIMBLB is invited to participate in the deliberation on the proposed new law (the way it happened in 1985 during the Shah Bano case), the conservative ulema would be able to secure their lost legitimacy as Muslim representatives.