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Triple Talaq: Religion, Personal Law and Community Rights – Part 1

The state: The executive, legislature and judiciary taken together
Personal law: Law regarding family affairs such as marriage, divorce and succession

Talaq-e-bidat, commonly known as “Triple Talaq” is a form of divorce practiced by some within the Muslim community in India. It allows a man to unilaterally end his marriage with his wife with immediate effect by pronouncing the word “talaq” three times.  There are other forms of divorce in practice which require negotiations and attempts at reconciliation over a period of 90 days before the divorce is effective.

The Supreme Court recently agreed to examine the legality of this practice (among other practices that are under the purview of Muslim Personal law) by entertaining a petition that argued that they are illegal and unconstitutional.[1]

Supreme_Court_of_India_-_200705
The Supreme Court of India

One of the parties to the case is the All India Muslim Personal Law Board (AIMPLB), an influential NGO which believes that while Triple Talaq is a social evil and must be discouraged, it has legal validity according to religious texts. Its position is that the state must refrain from making changes to Muslim personal law as it is currently practiced and that any reform must come from within the Muslim community.

The rest of this article examines three possible arguments in favour of the AIMPLB’s stand on Triple Talaq and responds to them.

A) Since Muslim Personal laws are derived from religious texts, and those religious texts represent divine commandments that must be followed, they cannot be contradicted by manmade law.

“Our laws are based on divine inspiration and triple talaq comes from the same inspiration, that is, Shariat. We have no powers to amend or abolish it. So the triple talaq is irrevocable.”
-Sayed Rabey Al-Hasani Naqvi, President of the AIMPLB, in 2008 [2]

There are two possible objections to this argument:

The first is to point out that there is diversity in interpretations of religious texts as well as in opinions about the practice of Triple Talaq among Muslims in India.

“The ‘so-called’ triple-talaq is an absurdity that militates against the words and spirit of the Quran and sayings of the Prophet”[3]
“[The] Quranic verse says a person can’t divorce his wife unless there is an arbitration or reconciliation process, which requires representations from both sides.”[4]
-legal scholar Tahir Mahmood

In a survey of of 4710 Muslim women across 10 states conducted by the Bharatiya Muslim Mahila Andolan (BMMA), 92.1% of the women when asked whether there should be a legal ban on the practice of Triple Talaq replied in the affirmative.[5]

So even if we were to accept that a genuine belief in divine sanction for the practice of Triple Talaq justifies its legality, the law can only apply to those who hold this belief and give enough weight to their belief to consent to the law. This is to avoid subjecting people to laws based on beliefs that they do not hold or do not consider to be important. Thus the only reasonable argument that could be made is that a husband be allowed to use Triple Talaq only if his wife agrees to grant him that privilege at the time of marriage, because the wife should not be subject to a law based on beliefs that she does not hold or does not consider to be important.

However even this would be conceding too much, because there is an even stronger objection to A. When taking a decision on whether a potentially harmful law must continue, the state has an obligation to examine its impact on those affected by it even if they consent to the law. The main problem with the argument is that it expects the state to give up its responsibility to protect the rights of its citizens and cede its authority to one particular interpretation of religious texts. While it’s natural for the state to delegate powers to other statutory bodies, such actions are thought to be justified because of mechanisms of accountability that would prevent misuse of power. Since it would be difficult to hold God accountable, accepting A would mean that law would be insulated from being examined on its merits by any human authority, leaving those that interpret religious texts with power but no accountability because according to them, the law needs no justification apart from its divine origin.

In Part 2: religious freedom, a community’s right to self-preservation and the Constituent Assembly debates.

Afterthoughts

  • A law passed in 1937 by the British colonial government declared that Muslims would be governed by Religious Law, or Shariat, in areas of marriage and divorce, but it failed to specify what that law would be. The law as it stands today is shaped by legislation on specific issues (such as grounds for women to initiate divorce and maintenance to be paid by divorced men) as well as by court precedent.[6][7]
  • Important court judgements have used the available scholarship on Islamic law to justify their decisions. In 2007 the Delhi High Court held that a couple’s divorce is invalid if the husband pronounces talaq in anger or fails to communicate it to his wife, leaving no scope for reconciliation.[8] In 2002, the Supreme Court held that talaq must be pronounced on cogent plausible and reasonable grounds and is effective only when efforts for reconciliation and resolution have failed.[9]
  • The AIMPLB was founded to protect Muslim Personal Law from changes initiated by the state, preferring to use its own influence to shape the way it is practiced. Since it rose to prominence in the 1980s, it has sought to be a representative body (it has members from different sects and schools of thought and has also included women) and has tried to establish a standardised version of Muslim Personal Law by evolving consensus positions on various issues. Its current stand on Triple Talaq is a compromise position that it arrived at in 2004, when it was under attack from women’s organisations for its perceived hostility to women’s rights.[10]
  • The claim of the AIMPLB to represent a definitive scholarly position on Muslim personal law weakened further in the years following this incident with the founding of other law boards such as the All India Muslim Women’s Personal Law Board and the All India Shia Personal Law Board (both of which consider Triple Talaq forbidden), along with the rising profile of Muslim women’s organisations such as the Bharatiya Mahila Muslim Andolan (BMMA) which have highlighted the adverse consequences of the practice on women, while claiming that codified personal laws that ensure justice for women would be consistent with Muslim religious texts.

“Since 2007, we have come across thousands of cases of oral triple talaq, rendering women destitute with nowhere to go”[11]
“The barbaric practice of triple talaq is prevalent in Indian society even though this practice has no Quranic sanctity”[12]
-Zakia Soman and Dr Noorjehan Safia Niaz, founders of the BMMA

  • The BMMA survey quoted above also found that 95.5% of the women surveyed had not heard of the AIMPLB.[5]

References

  1. Pathak, Manish Kumar. “Supreme Court Notice to Centre on Triple Talaq.”India Today. Living Media India Limited, 29 Feb. 2016. Web. 15 May 2016. http://indiatoday.intoday.in/story/supreme-court-notice-to-centre-on-triple-talaq/1/608574.html
  2. Ahmed, Farzanand. “No, Triple Talaq Can’t Be Abolished.” India Today. Living Media India Limited, 31 Jan. 2010. Web. 15 May 2016. http://indiatoday.intoday.in/story/No+triple+talaq+cant+be+abolished/1/81719.html
  3. PTI. “Triple-talaq against Spirit of Quran: Tahir Mahmood.” The Financial Express. The Indian Express [P] Ltd., 28 Apr. 2016. Web. 15 May 2016. http://www.financialexpress.com/article/india-news/triple-talaq-in-quran-quotes-tahir-mahmood-muslims-in-india/244290/
  4. Ashraf, Ajaz. “Ban Triple Talaq and Abolish Muslim Personal Law Board, Says Former Minorities Commission Chairman.” Scroll. Scroll, 5 May 2015. Web. 15 May 2016. http://scroll.in/article/724902/ban-triple-talaq-and-abolish-muslim-personal-law-board-says-former-minorities-commission-chairman
  5. Naz, Noorjehan Safia, Dr., and Zakia Soman. Seeking Justice Within Family. Rep. N.p.: Bharatiya Muslim Mahila Andolan, 2015. BMMA Publication – ‘Seeking Justice Within Family – A National Study on Muslim Women’s Views on Reforms in Muslim Personal Law’. Bharatiya Muslim Mahila Andolan, 10 Aug. 2015. Web. 15 May 2016. https://bmmaindia.com/2015/08/10/bmma-publication-seeking-justice-within-family-a-national-study-on-muslim-womens-views-on-reforms-in-muslim-personal-law/
  6. Sarkar, Urvashi. “FEATURED ‘Resisting Codification of Muslim Personal Law Is Denial of Muslim Women’s Constitutional Rights’.” The Wire. The Wire, 29 Mar. 2016. Web. 15 May 2016. http://thewire.in/2016/03/29/resisting-codification-of-muslim-personal-law-denies-muslim-women-their-constitutional-rights-26521/
  7. Mahmood, Tahir. “Warming up the Code.” Indian Express. The Indian Express [P] Ltd., 13 Oct. 2009. Web. 15 May 2016. http://indianexpress.com/article/opinion/columns/warming-up-the-code/
  8. PTI. “Divorce Is Invalid If Husband Pronounces Talaq in Anger: HC.” Daily News and Analysis. Diligent Media Corporation Ltd., 28 Oct. 2007. Web. 15 May 2016. http://www.dnaindia.com/india/report-divorce-is-invalid-if-husband-pronounces-talaq-in-anger-hc-1130347
  9. Anwar, Tarique. “Dismay as Muslim Law Board Sticks to Regressive Instant ‘Talaq’ over a 3-month Process.” Firstpost. Firstpost, 5 Sept. 2015. Web. 15 May 2016. http://www.firstpost.com/india/dismay-as-muslim-law-board-sticks-to-regressive-instant-talaq-over-a-3-month-process-2422348.html
  10. Jones, Justin. “‘Signs of Churning’: Muslim Personal Law and Public Contestation in Twenty-first Century India.” Mod. Asian Stud. Modern Asian Studies 44.01 (2009): 175. Web.
  11. BBC. “Triple Talaq: India’s Muslim Women Fight against Instant Divorce.”BBC. BBC, 11 Apr. 2016. Web. 15 May 2016. http://www.bbc.com/news/world-asia-india-35997390
  12. Soman, Zakia, and Noorjehan Safia Naz, Dr. “Time to Outlaw Triple Talaq in India, Says Bharatiya Muslim Mahila Andolan.” Daily News and Analysis. Diligent Media Corporation Ltd., 24 Apr. 2016. Web. 15 May 2016. http://www.dnaindia.com/lifestyle/column-time-to-outlaw-triple-talaq-in-india-says-bharatiya-muslim-mahila-andolan-2205412
  13. https://commons.wikimedia.org/wiki/File:Supreme_Court_of_India_-_200705.jpg
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