A. Faizur Rahman
May 16, 2017
When the five-judge Constitution Bench of
the Supreme Court began hearing petitions challenging the validity of instant
triple Talaq, Halala and polygamy, there was a tizzy of excitement across
India, especially in Muslim circles. The expectation was that these practices
would be struck down as unconstitutional as demanded by some Muslim women’s
groups. But the judges have made it clear that they will be examining only
triple Talaq now.
Case of Misplaced Priorities
Media reports would have us believe that
the issue of gender discrimination in the Muslim personal law reached the
Supreme Court because of petitions filed by victims of instant Talaq and
polygyny. The truth, however, is that it was the apex court which had asked for
the registration of a Public Interest Litigation (PIL) in October 2015 to be
put up before an appropriate Bench. Muslim individuals and groups impleaded
themselves in the case only after the PIL was registered.
Surprisingly, the case in which the PIL was
ordered — Prakash v. Phulavati, (2016) 2 SCC 36 — had nothing to do with the
Muslim law. It pertained to the rights of Hindu daughters under the Hindu
Succession (Amendment) Act, 2005. Aware of this fact, the court conceded (in
paragraphs 27-30 of the judgment) that the issue of gender discrimination in
Muslim law was not directly involved in the appeal before them. They are
examining it because some of the learned counsel for the parties (in the
aforementioned case) raised the matter, and “the issue has also been
highlighted in recent articles appearing in the press on this subject”.
The Supreme Court’s self-registered PIL
brought into sharp focus Muslim issues which, despite their gender
discriminatory and un-Islamic nature, did not deserve to be prioritised.
Indeed, amid a storm of media hype, one of these issues — triple talaq —
metamorphosed into a convenient stick in the hands of majoritarian forces to
beat the Muslims with. It was politicised to the extent that it became a topic
of heated debate during the recent U.P. elections as though it was the only
problem facing Muslim women.
A look at the 2011 Census would reveal that
out of a total Muslim female population of 83.97 million in India, about 2.12
Lakh are divorced. The census, however, does not tell us by what legal
procedure these women were divorced. Therefore, even the hypothetical
presumption that all these women were divorced instantly would not take the
number of triple Talaq-divorced Muslim women in India beyond quarter per cent
of their population — 2.12 Lakh is just 0.25% of 83.97 million. Compare this to
the fact that a whopping 48.1% of Muslim women in India are illiterate as per
the same census, which no Muslim women’s group seems to be aware of.
If despite these hard facts there is a
misplaced emphasis on triple talaq, it is the direct result of relying on
studies (criticised as totally flawed by several experts) conducted by the
Bhartiya Muslim Mahila Andolan (BMMA) wherein this practice was projected as
the most significant issue affecting Muslim women. Figures quoted above render
this claim totally specious.
Nonetheless, to answer the question raised
by the Supreme Court, instant Talaq (Talaq-e-Bid’a) has no basis in the Koran
and, therefore, is not fundamental to Islam. Muslim theologians must understand
that concepts not sanctified by the primary source of Muslim law, the Koran,
cannot be declared as essential parts of Islam irrespective of where they draw
their legitimacy from. All sources of Islamic law, be it Hadees, Ijma or Qiyas,
are subservient to the Quran.
And as per the Koran, only after four
serious attempts at reconciliation (which includes arbitration) is a Muslim husband
permitted to utter the first divorce, which is followed by a three-month
waiting period called Iddah. If within Iddah the marital dispute gets resolved,
conjugal relations may be resumed without undergoing the procedure of
remarriage. But after the expiry of Iddah the husband can either re-contract
the existing marriage on fresh and mutually agreeable terms or irrevocably
divorce his wife — in the presence of two witnesses — by pronouncing the final
Talaq. (A detailed exposition of this procedure can be found in this author’s
article, “The continuing tyranny of the triple Talaq”, The Hindu, April 4,
This is the only method of divorce mandated
in the Quran. Other forms such as Talaq-E-Bid’a,
Talaq-E-Hasan, Talaq-E-Ahsan and
Talaq-E-Tafweez are concepts of Hanafi jurisprudence. They find no mention
in the Quran. Thankfully, it was the Quranic procedure that the apex court
endorsed in 2002 when in the Shamim Ara v. State of U.P. case it invalidated
Talaq not preceded by arbitration or reconciliation attempts between the
husband and the wife.
It may be pointed out here that the
pronouncement of three Talaqs in one sitting does not constitute even one
divorce as held by the Ahl-e-Hadees sect. In the Quranic view, first divorce
becomes effectual only after the parties have gone through the process of
reconciliation and arbitration. Divorces uttered without exhausting these
options have no legal validity in Islam.
In this context, the views of Salman
Khurshid quoted in the media are astonishing if true. Mr. Khurshid had told the
apex court on May 12 that the All India Muslim Personal Law Board (AIMPLB) is
the best body to guide the court on the varying philosophies of schools of
Islam about triple Talaq.
The reality is, had the AIMPLB been
open-minded about different schools of Muslim thought, it would not be blindly
advocating the Hanafi viewpoint that validates Talaq-e-Bid’a (instant triple Talaq). The board would have made use
of legal devices such as Takhayyur and Talfiq
al Mazaahib which allow jurists to amalgamate the doctrines of various
Islamic legal schools to formulate reformist interpretations that are capable
of outlawing unjust practices such as Talaq-e-Bid’a.
On the contrary, the preface to the AIMLPB’s Compendium of Islamic Laws
released in 2001 categorically states that the original Urdu version of the
compendium contains extensive notes in Arabic drawn from “authentic books of
the Hanafi law”, which is a clear indication of the board's intention to view
Islam only through the prism of Hanafi law and nothing else.
Given the reluctance of Muslim religious
bodies in India to give up their sectarian conformism and delegitimise
Talaq-e-Bid’at, the Supreme Court will be well within its rights under Articles
141 and 142 of our Constitution to resort to, in consultation with progressive
Islamic scholars, a neoteric interpretation of the terms “Talaq” and “Shariat”
mentioned in section (2) of The Muslim Personal Law (Shariat) Application Act,
1937, and lay down the procedure of divorce in accordance with the egalitarian
and gender-just principles of the Koran.
In pursuance of this, the Constitution
Bench may, without putting the Muslim personal law to the test of Article 13
(1), further clarify, elaborate and enlarge the scope of the Shamim Ara
judgment and make the Quranic procedure of divorce ratified in that ruling
common to both men and women. This would render the law gender-just by
eliminating the need for Khula, wherein Muslim women seeking divorce are
required to get the concurrence of their husbands or the Qazi to get the
The good news is, even outfits such as the
BMMA which have been vociferously calling for a ban on triple Talaq seem to
have realised the untenability of their views. The BMMA’s co-founder and intervener
in the PIL before the Supreme Court, Zakia Soman, has now submitted to the
Supreme Court (in her affidavit filed on March 3, 2017): “… the courts in India
have by a purely interpretative exercise held that Talaq-I-Bidat or instantaneous Talaq is illegal, ineffective and
has no force of law. If the same declaration is given by this Hon’ble Court by
a process of interpretation of personal law, then the question of going into
the constitutionality of personal law does not arise.”
The change in the BMMA’s attitude towards
Muslim personal law deserves to be welcomed and must be considered seriously by
the apex court.
Rahman is an independent researcher and secretary general of the Chennai-based
Islamic Forum for the Promotion of Moderate Thought.
It needs to be clarified that both Talaq-E-Ahsan,
Talaq E-Hasan are based on the Qur’an’s three-month time frame. The only
difference is - in the former case the talaq gets automatically nullified if the
husband has sex wit his wife any time during the three month waiting period and
in the latter it does not get nullified if he has sex during the first two
months of the waiting period but abstains during the third and final month. ”
Hence, it will be incorrect to say that ‘they find no mention in the Quran.”