Religious diktat, secular laws
In a stunning assertion, the All India Muslim Personal Law Board told the Supreme Court on Tuesday that the practice of instant triple talaq was a matter of faith and ruled out the question of Constitutional morality and equity. The AIMPLB insists that a 1,400-year-old practice could not be considered un-Islamic. For the uninitiated, as per the practice under question, a Muslim husband can instantly and unilaterally divorce his wife by merely saying the word "talaq" (divorce) three times in one go. In the opinion of the Allahabad High Court, the practice is "cruel" and the "most demeaning form of divorce." In fact, the Supreme Court had in 2002 rendered illegal the practice that many Muslim men employ to divorce their wives instantaneously and without their consent. Unfortunately, the court's orders did not stop the practice, and many Muslim women have suffered in silence owing to ignorance of past judgments and societal pressure. However, there are scholars of Islam, who have argued against the AIMPLB's position on the subject. "Instant talaq (talaq-e-bid'a) has no basis in the Quran and, therefore, is not fundamental to Islam," writes A. Faizur Rahman, secretary general of the Chennai-based Islamic Forum for the Promotion of Moderate Thought. In his recent column, he goes on to illustrate his position. "And as per the Quran, 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," he adds. There are many cases pending before the apex court that involves the issue of individual rights versus community rights. But instead of subjecting instant triple talaq to the test of constitutional validity, the court has stressed that it sought to assess if triple talaq was fundamental to Islam. If it were, the apex court would not interfere. Should personal laws be subject to the rights enumerated in Part III of the Constitution, which deals with fundamental rights? Individual legal experts argue that if there does exist a parallel regime of personal law that is not subject to rights guaranteed by the Constitution, then why have a Constitution at all. Ideally, when matters of faith affect the rights of individuals in cases of inheritance, divorce or marriage, then the provisions of the Constitution must apply.On the subject of personal law, BR Ambedkar, one of the primary framers of our Constitution and a leading social reformer of his time, made an interesting observation during the Constitutional Assembly Debates on December 2, 1984. "The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion, and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession should be governed by religion," Ambedkar said.
The Centre's official position on the subject is clear. It had urged the Supreme Court to declare the practice of instant triple talaq inconsistent with Muslim women's fundamental right to life and dignity. It goes on to maintain that the practice of instant triple talaq had nothing to do with religion and held it up as a custom that violates gender equality and human rights. In fact, Attorney General Mukul Rohatgi on Monday told the Supreme Court that all personal laws are subject to the Constitution and the government will introduce a law if the top court bans the practice of triple talaq. Many liberal progressives, who are often critical of the current NDA government on a whole host of issues pertaining to faith, have hailed the Centre's position on this case. This practice is particularly devastating for women from low-income households, who find themselves on the streets, often with their children and very little or no means to sustain themselves. Their families are often financially too weak to take care of them, while the man marries again without attempting to provide any maintenance. Unbeknownst to individual supporters of this controversial practice, many Muslim-majority countries have rejected the practice of instant triple talaq including, Indonesia, Iran, and Tunisia.
This matter went into overdrive in October 2016, when the National Law Commission released a questionnaire, seeking public opinion on a Uniform Civil Code, which would replace all personal laws based on the scriptures and customs of each major religious community in India with a legislation that is binding on all citizens. The debate on the uniform civil code, however, has been stereotyped as one that concerns Muslims alone. Fortunately, the Supreme Court refused to club hearings on the Uniform Civil Code with those on Muslim personal laws, saying they were two separate subjects. As far as the narrative on the Unform Civil Code is concerned, the court has set the record straight.