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Bringing talaq under judicial scrutiny

Bringing talaq under judicial scrutiny
The Supreme Court’s decision to examine the custom of triple talaq in Islam is welcome. It has issued notices to the Central government and the National Commission for Women to file their responses in this regard. The court took this step on a petition by Shayara Bano and even sought a response from her ex-husband. The court categorically said that a review of the practice was necessary to prevent women from being treated as “chattel”. It felt that a summary rejection of marriage by one of the partners without an inbuilt mechanism for reconciliation (which is very much present in the commandments in the Holy Quran) was unjust and goes against socially accepted norms governing marriages. As expected, the All India Muslim Personal Law Board, at other times a moribund body, has said that the Supreme Court had no jurisdiction to undertake the exercise as its personal law was based on the Quran and not on a law enacted by Parliament.

The question of triple talaq has assumed great significance with rapid advances in technology. As Shayara’s petition highlighted, women have been divorced over Skype and Facebook. Some have even been text-divorced. A conditional right given in Islam is being grossly misused by some men. The worst part is that the aggrieved woman has no right to put forward her view. The receipt of a talaaqnama from a kazi is the end of it all for her. She has no easy route to get out of a troubled marriage and is compelled to bear torture till her husband decides to leave her. The Holy Quran does not call for such one-sided relationship in marriage and is replete with commands to men to treat their wife (or wives) in a just and equitable manner. These commandments are never highlighted or carried out by a male dominated society. Women have no protection against this directive, mainly because of resistance against codification of Muslim personal laws.

The contention that the courts have no right to pronounce a judgement on Muslim personal laws as they are derived from the Holy Quran has been raised far too often to scuttle any attempts at reform. There are several interpretations for the same Quranic Sura and people are known to misuse it. Despite the Quran having ample safeguards for women, vested interests deny them even basic rights. The deceased Muslim scholar Asghar Ali Engineer was of the view that Muslim personal law, as it exists in India today, is nothing but an Anglo-Mohammedan law given a Sharia’h coat. It has been in existence since the pre-Independence era and does not truly reflect the spirit of the Holy Quran.

In fact, Muslim scholar Syeda Saiyidain Hameed has written that the triple talaq is known as talaq-e-bidat or the talaq of wrong innovation. It goes against the spirit of Islam, she argued. “During the reign of the second Khalifa of Islam, Hazrat Umar, legend has it that there was a sudden spurt of talaqs in Arabia,” she wrote. “Men were divorcing their wives without assigning any rhyme or reason. Angered by the inhumane manner in which people were interpreting the Quran, the Khalifa ordered that any man found giving his wife talaq should have his head severed.” Allama Samsani of Beirut has also cited this in Falsafa Shariat-ul-Islam. Triple, instantaneous, verbal talaq, in any event, is repugnant to the spirit of Islam.

The clear instruction in the Quran is: At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa. Surah Al Baqr, 226. This means that talaq must be pronounced twice (in two months) and then (a woman) must either be retained in honour or released in kindness. It further says that it is not lawful for you that you take from women anything which you have given them.

The commandment is clear. Talaq has to be pronounced twice with an intervening period in which to rethink, reconsider and reconcile. For this, the important instruction is to take time, then, again, take more time, during which period there should be interlocutors from both sides to try to mediate the conflict. After the second talaq, there is still an intervening period, during which the husband has to think about the two choices available to him; either reconcile with his wife in an honourable way or pronounce the third (irrevocable) talaq with kindness and let her go. At the end of the third interval, he must exercise this choice. But then follows the absolute command. If he decides to let her go, he must do so “without taking from the woman anything you have not given her”. The spirit of the Quran with regard to the process of divorce and the divorced woman, as reflected in this command to the man, is imbued with sensitivity towards women.

Pronouncing three talaqs at one go is neither sanctioned by Islam nor does it reflect the spirit of the Holy Quran. The recent assertion by Jamaat-Ulama-E-Hind that since Muslim personal law derives from the Holy Quran, Indian courts have no right to pronounce verdicts on such matters does not hold water because no single Islamic body is the sole and authorised interpreter of Quranic Sura’s. Further, the Supreme Court has time and again held that a practice cannot acquire legal sanction just because it is permitted and it can be regulated or prohibited in the interest of public order, morality, and health (Khurshid Ahmad Khan vs the State of UP). The state and the judiciary cannot be mute spectators when citizens are denied their rights in the name of personal laws whose authenticity or correct application are in doubt.

Muslim bodies like the AIMPLB, Jamaat-Ulama-E-Hind, and Darul Uloom wish to have the best of both worlds. They wish to have humane laws of a secular democratic country where other Sharia’h laws that call for death by stoning or severing fingers and limbs are concerned, but wish to assert Sharia’h’s superiority when it serves their (patriarchal) purpose. They also ignore the fact that triple talaq at one go is banned in most Islamic countries. These bodies neither wish to apply the Sharia’h in a uniform manner for every Muslim citizen nor do they want them to come under a codified Muslim personal law. In other words, they are happy with the status quo – a situation designed to perpetuate their hold over the community without any concern for equality and justice.

(The writer is Editor-in-Chief, indiacommentary.com. The views expressed are strictly personal.)
SUNIL GARODIA

SUNIL GARODIA

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