Thursday, 2 April 2020

Triple talaq   Change has to come from within

Updated: January 10, 2019 3:33 pm

The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was tabled in the Lok Sabha, the lower house of the Indian parliament on December 28, 2017 and was passed almost without any debate. The justification of the Bill is that due to the presence of instant Triple Talaq or Talaq-e-bidat, Muslim women are oppressed, discriminated against and ‘left with nothing’.

Triple Talaq, where the husband pronounces Talaq thrice and instantly executes divorce, is truly discriminatory and robs the women of any rights and security. In the advanced age of technology, triple Talaq has been executed through telegram, instant messages, and over the phone.

The Triple Talaq Bill claims to rectify that situation by criminalizing Muslim men who will execute divorce through triple Talaq in future. The Bill states that if a Muslim woman files an FIR against her husband for pronouncing Triple Talaq, that person will be put behind bars for three years without any bail. It also states that the husband will have to provide subsistence allowance to his wife and kids of the amount as decided by the magistrate.

The reasons and objectives stated in the Bill argue that it is a production of Muslim women’s movement in India, especially after Shayara Bano and four other Muslim women filed a case in Supreme Court in 2016 against her husband’s execution of triple Talaq. She moved to the apex court to seek a ban on instant divorce, polygamy and halala.

However, the court only gave the judgment on the instant divorce and called it unconstitutional and un-Quranic i.e. Quran doesn’t allow this instant divorce.

As per the Quran, there is a long procedure for Talaq, which talks about deliberation, time-gap and greater community involvement. However, Muslim men with legitimacy from the Muslim patriarchal setup in India, practiced this derivative form of divorce leaving women homeless, poor and destitute.

But India being India, politics over the issue has started meddling in the constitutional framework of the country. The Congress alongwith other so called secular parties has opposed the Bill in the Rajya Sabha on the grounds that instead of making Triple Talaq a criminal offence, it should be made a civil offence.

But the question arises that if Muslim countries including Pakistan, Indonesia, Bangladesh and Egypt have banned the practice of triple talaq, then how is banning triple talaq in India an anti-Shariat and un-Islamic activity?

The Triple Talaq Bill or the Muslim Women (Protection of Rights on Marriage) Bill 2017 that was passed in the Lok Sabha has divided the political class and Muslim organisations, even if the legal fight against it was spearheaded by many aggrieved Muslim women and their organisations like the Bharatiya Muslim Mahila Andolan (BMMA).

The proposed bill aims to outlaw the practice of Talaq-e-biddat or instant triple talaq and criminalises the practice, making it a non-bailable and cognizable offence and inviting a jail term of three years for erring husbands. This provision has been objected by many parties and they are demanding its removal.

The government says, doing so was necessary as even after the landmark Supreme Court verdict on August 22, 2017 that banned instant triple talaq, the social malaise continued unabated. The top court in its verdict had put a six month ban on the practice and had asked the government to frame a law on it.

It would be impractical to state that after the release of the judgment of the Apex Court the practice has ceased completely. As per the minister of law, Mr. Ravi Shankar Prasad, there has been around approximately 66 reported cases from various parts of the country after the release of the judgment on the 22nd of August 2017. It can be ascertained that there is a possibility of many cases which might have gone unreported. So it can be concluded that many might be practicing it in the dark. The practice of triple talaq is heavily assimilated in the Muslim culture, and it is difficult to immediately wipe it. But after the release of the judgment, one thing is for sure that the women have got encouraged and have gained the strength of standing against this barbaric and inhuman act of the men.

Understanding the Talaq

There are facts which one has to understand before pointing the fingers towards the ambiguities in the Triple Talaq system. As per the Shariat, Talaq is classified on the basis of pronouncement into two i.e

  1. a) Talaq-ul-Sunnat (revocable) and;
  2. b) Talaq-ul-Biddat (irrevocable) which is further subclassified in talaq Ahsan (most proper) and talaq Hasan (proper).

So as per Shariat act, the triple talaq doesn’t exist in the form as the usage was modified by the king Omayad in the second century as per the convenience. Thereafter the Muslim males started misusing it to prove their dominance over women.

It is the talaq-ul-Biddat which is in the canvass and it is regarded as the disapproved form of talaq. This form of talaq is in contrast to the ideology of the Prophet. Here the husbands could break the sacred relation merely by pronouncing talaq three times and there is no possibility of reconciliation. Prophet always opposed irrevocable talaq as he believed talaq is an evil and people must pursue the revocable one as there is an option of gaining back the pious relationship. Also, it is a unilateral divorce and is against the gender jurisprudence.

Shia law

The Muslim religion got bifurcated into two major communities after the death of the prophet. This also led to the differentiation in various customs. It is material to mention that Shia laws don’t recognize talaq-ul-Biddat or the instantaneous talaq. Hence this judgment establishes no effect on Shia community. This talaq-ul-Biddat is followed only in the Sunni community of Hanafi school and Hanafi Sunnis comprise around 90% of the Muslim population in India.

Bill is not Against Islamic Religion One must understand that the Bill is not against any institution, organization nor it is against the religion of Islam. Rather, the true meaning and spirit of the Quran have been outlined on the anvil of individualism, the rule of law and human rights enunciated in the constitution. It is a judgment in favor of justice based on women rights on humans right that has been denied to Muslim women for centuries despite Quranic provisions relating to gender and spousal equality in wedlock and beyond. The Quran does not sanction triple talaq in one go. According to Islamic scripture, the word talaq is spoken thrice over a period of three months. In such a manner, it demands time and patience in executing a divorce in the hope of making the union possible knowing that the couple is bound to have differences. This Quranic procedure has been laid down with a rationale to establish that marital coverture cannot be terminated in a state of sudden provocation, rage or whims.

Change has to come from within

We must never forget the solemn warning issued by Canadian scholar Winfred Cantwell Smith in mid-20th century that a healthy, functioning Islam is crucial for world peace. Clearly, the Islam today is not healthy and functioning. So it is not only the Muslims but the nation at large that should welcome an opportunity to debate and understand Islamic theological issues. Muslim personal law is once again facing legal challenge. But most ominous for the self-declared guardians of Islamic Sharia in India is the societal challenge. Unlike the Shah Bano case three decades ago, Saira Bano’s plea now has many outspoken supporters within the community. Ulema from Muslim Personal Law Board are facing tough theological questions even on television debates. I myself asked a Board member to show in the Quran where it allows instant divorce even as “Isharat al-nas” (alluded/indicative meaning).

Faced with a barrage of questions, the ulema have now decided to challenge the progressive Muslims on their theological knowledge and more importantly, the courage, to stand up to their beliefs. At the same time, they are blaming progressive Muslims for encouraging courts to intervene, while taking their regular subversive position that courts and government should not intervene in matters of Muslim Personal Law as it is a matter of faith.

Rather than being cowed into silence or even dismiss this challenge as an effort to obfuscate matters, progressive Muslims should pick up the gauntlet and battle it out. This should be used as a great opportunity to breach the total stagnation that has prevailed in Islamic theological debates in the country. This will not only help the victims of our Anglo-Mohammedan Personal Law but also help open up issues related to violent extremism that is attracting our youth more and more in the absence of debate.

A new study indicates that 92.1 per cent of Muslim women in

India want a total ban on instant oral divorce. The report was released by Bharatiya Muslim Mahila Andolan (BMMA). The report gives the following details: “Women are being informed of their divorce via telephone, text message, and even social media with reasons ranging from poor cooking skills to wardrobe and accessories choices under the current system.”

Naseer Ahmed, a researcher devoted to Quranic studies, while writing for New Age Islam.com describes the process of a Muslim divorce in this way: “The divorce process starts with a verbal divorce followed by a period of 4 months or three menstrual cycles during which the woman stays in her husband’s home. If during this period or before the actual physical divorce, if they cohabit the divorce is off. The actual physical divorce means living separately as a divorced couple after the final pronouncement of the divorce at the end of the 4-month period. The number of times ‘talaq’ is said is immaterial. It must be said at least twice with a gap of 4 months as described above. The final pronouncement should preferably be in the presence of arbitrators if the arbitration has failed to make them change their minds. They can reunite and call the divorce off any time before the final separation takes place and they start living separately as a divorced couple. Once the physical divorce has taken place and they start living separately, they cannot reunite except through a fresh marriage which has conditions attached. Any other process is not in accordance with the shariat of the Quran.”

However, the issue is not just triple or instant divorce, but reform of Muslim personal law itself. Consequently, the demand should not be made only to ban the rampant tyranny of triple talaq. This is one of the evils emanating from the personal laws instituted for Muslims by the British. Hardly any Muslim in India follows the Quran-based practice of divorce in three stages, encompassing three menstrual cycles.

After Independence from the British, a united Pakistan had refused to accept the Anglo-Mohammedan Law and reformed its personal law in 1961. These reforms have passed the test of time. Pakistan has since gone through much upheaval including an era of Nizam-e-Mustafa under President General Ziaul Haq, in which even traditional pre-Islamic forms of punishment like whips and lashes and public flogging were practised. So what progressive Muslims in India should be and indeed have been demanding for long is reforms in Muslim personal law itself.

The government while promulgating the Ordinance, later Bill has shown a stern and an uncompromising attitude towards felonious practice involving extreme harassment onto the women.The government must try to incorporate various other practices which harm the respect of the women. Practices such as ‘nikah Halala’ one of the most outrageous practices involving the illicit desire of the religious leaders must be amputated as soon as possible. Other practices such as polygamy, minors marriage, mental and physical harassment of the wife, forced sex by the husband, marriage with huge age gap must be curbed.

The most dangerous and subversive statement that the Shariat propagandists, however, makes in this regard is the following: “This issue is not related to the laws of the country but it is an issue related to Fatwa. Hence this issue should be dealt with by reliable scholars of Islamic jurisdiction.”

These so called scholars of the Islamic Law  should understand

that the Muslims are as much subject to the Indian Constitution and its interpretation by the Supreme Court of India as any other citizen. Muslim personal law is a part of the Constitution and the Supreme Court has every right to interpret it in the way it considers best. Progressive Muslims are not committing a sin

by encouraging the courts to intervene in the matter. It is the right and duty of the courts to look after the welfare of the citizens in accordance with the Constitution.

By Nilabh Krishna

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