Denying the Naysayers

Muslims are the only community in India for whom the divorce is criminalised and punishable. It might appear as another grim reminder of the Muslim persecution in India, until we dig up the past and assess the present of the last six years.

From 1937 to 2017, the instant triple talaq to a Muslim woman was in practice with legal sanctity as per the colonial Shariat Act. It was, as Arif Mohammad Khan, present Bihar governor and lifetime crusader against the practice, called it, “a cruelty” – totally against the letter and spirit of the law as espoused by the Holy Quran and the life of Prophet Muhammad through his deeds and administrative conduct.

The Sunni clerics, barring some sub-sects and some individual agents of reform, not only advocated it; they also created hysteria among Muslim masses for its defence in the name of ‘Save Shariat’ when in 1985 a woman named Shah Bano won a court case against her lawyer husband for alimony linked to a case of triple talaq.

The most stupefying and galling aspect of these clerics’ argument was that they called it talaq-e-biddat (a method innovated outside the laid down canons of Islam, i.e. Quran and Sunnat for annulling marriage instantly). Yet they saw it intrinsic to the Shariat or the Islamic jurisprudence.

The Shah Bano case was a watershed moment in post-Emergency history of India and its political capital was reaped by various clerical and political sections, and it perhaps still remains a milch cow for many.

Overall, what has changed in the last six years since the instant triple talaq was declared a punishable offence by the Muslim Women (Protection of Rights on Marriage) Act, 2019 on August 1, 2019?

First, the grip of conservative clerics has loosened drastically. They had threatened almost 1986-like agitation against the 2019 law, but barring few rallies, their call for “Save Shariat and Constitution” campaign ran into oblivion soon after take-off.

All leading Muslim organisations like the All India Muslim Personal Law Board, Jamiat Ulema e Hind and several others tried to shepherd Muslims, especially women, to oppose the new law and demand its repeal. It found some appeal but slowly the issue rode into oblivion.

What defeated this conservative clique of clerics is that they had seen it as an apocalypse for the family system of Muslims, saying “it would destroy Muslim homes”. It’s been six years and no Muslim organisation has an iota of proof that the law has harmed Muslim homes.

On the contrary, a 2023 NDTV report quoted Arif Mohammad Khan saying that the law reduced instant divorces among Muslims by 96 per cent. The figure is not verifiable but stray reports from across the country inform that cases of instant triple talaq are now frequently reported to the police and such fear keeps the domestic disputes to the homes, mostly settled.

The AIMPLB had also announced that it would kick in reforms within the community so that the triple talaq could be first minimised and then abolished completely. It had announced that the model nikahnama would be handed over to qazis or maulvis who solemnise nikah. These model nikahnama would have pre-nup conditions declaring that the groom would never utter instant triple talaq.

This model nikahnama has remained merely a bulletin. It is yet to get an invitation to any wedding.

Second, the political viability of the triple talaq issue remains potentially alive, even though it is somewhat dormant at present. As discussed above, it is an issue of privilege and profession for clerics. They pawn their power to political parties. Even though their influence is on the wane, they still retain some merchandising value.

We saw them trading the issue of triple talaq and other emotive topics in the elections of West Bengal, Maharashtra, Haryana, and now it seems, some of them would be employed in Bihar as well.

Then, there is contentious linkage of the triple talaq law to the promulgation of the Uniform Civil Code (UCC) in India. The UCC has been a prominent feature in the agenda of ruling Bharatiya Janata Party at the Centre. The party claims to make all civil laws streamlined through single code.

Even by simplistic definition, the UCC refers to a single law applicable to all citizens of a country in personal matters such as marriage, divorce, custody, adoption, and inheritance. The BJP claims that the purpose of its idea of UCC is to replace personal laws based on religions and their scriptures and customs with a common set of civil laws governing every citizen, just like criminal laws are the same for all Indians.

However, it makes the UCC one of the most controversial issues of the country. For example, the UCC enforced in one of BJP-ruled states, Uttarakhand, exonerated tribals from its ambit. It renders the law bereft of its original soul and goal. And the way the law has been employed into the rhetoric of some BJP leaders, it makes it appear as a whip to intimidate Muslims and only utilise it for electoral gains.

BJP leaders have been giving examples of abolition of triple talaq as a first step in the direction of the UCC and, thus, Muslims strongly feel that only their religious practices, even though some are deletable (such as triple talaq), are in danger.

Third, there is a hope that shimmers in the attitude of young Muslims, mostly urban, who are leading the change in the attitude of the community. While the AIMPLB has not been able to implement its model nikahnama, many youths are turning to courts to register their marriages through the Special Marriage Act that automatically makes divorce only through courts.

Though it is not a guarantee that intervention of courts will reduce cases of divorce, it will hopefully make it less messy compared to what happens when talaq is pronounced at homes, and intervention of local clerics and family members turn it into a dispute. And despite triple talaq law in force, most cases reaching police stations actually stem from such disputes. Thankfully, these cases are very few.

The writer is a journalist based in Jaipur. Views expressed are personal