Salman Khurshid’s book is an attempt to make sense of the various pronouncements in the Shayara Bano verdict and also the Muslim law of divorce. For a small volume of about 230 pages, it not just reproduces substantial portions of the minority and majority judgments but contains an enlightening analysis of the verdict based on the views of the celebrated American legal philosopher, Ronald Dworkin.
Khurshid quotes from one of Dworkin’s famous lectures to rightly argue that constitutional morality is totally different from popular morality which can on occasion be inconsistent with constitutional values. When that happens, it is the constitution that would prevail over communal norms. Khurshid hopes that one day the apex court will have to look at the theoretical framework of the constitutional versus, the popular more carefully, if mistakes as in the ADM Jabalpur case (in which the Supreme Court had circumscribed the right to personal liberty) are to be avoided.
But on the Islamic law of divorce, however, Khurshid, falters. After correctly assessing talaq-e-bid’a to be outside the shariah and censuring the All India Muslim Personal Law Board for its obstinacy, he goes on to narrate and endorse the very same concepts of divorce approved by the Board such as ‘talaq-ul-sunnat’, ‘talaq-e-hasan’, ‘talaq-e-ahsan’, ‘talaq-ul-bain’, and ‘talaq-e-tafweez’. These terms are neither found in the Koran nor the teachings of the prophet. They were coined by sectarian jurists decades after the prophet’s death perhaps to legalise their circumvention of the revealed text.
The only term used in the Koran is ‘talaq’ and its procedure is clearly spelt out in chapters 2, 4 and 65. The most interesting aspect of this procedure is that although it is addressed to men there is nothing in the Koranic text that prevents it from being applied to women. In other words, the Koranic procedure of divorce can be suitably modified and made gender-neutral without violating the Koranic intent in any manner.
Terms and conditions
This would eliminate the need to endorse, as Khurshid has done, another extra-Koranic concept called khula , which is touted by medievalists as the woman’s equal right to divorce. The truth is, it cannot be described as an unconditional or absolute right of the wife because it violates the legal parity given to Muslim women in the Koran by laying down the conditions that for the offer of khula to be valid, a) it must be accompanied by a consideration (usually monetary) known as evaz , and b) the offer must be accepted by the husband.
Khurshid also makes the mistake of presuming that according to the Koran , divorce is permissible only twice during the lifetime of the husband. There is nothing in the Koran that supports this view. The phrase ‘during a lifetime’ is not part of the verse (2:229) which speaks about the permissibility of divorce twice.
By no stretch of imagination can the clause ‘a divorce is only permissible twice’ taken to mean ‘a divorce is only permissible twice during a lifetime’ for it would lead to the absurd conclusion that a married couple cannot, will not or should not have a marital dispute more than twice! Married people know this is an impossibility. The correct assumption, therefore, would be: ‘a divorce is only permissible twice during the dispute.’
Khurshid appears to have also bought into the idea that a nikahnama (marriage contract) would restore legal parity between Muslim men and women.
Found annexed at the end of his book is a nikahnama, which attempts to do this by incorporating the ‘judicially enforceable’ talaq-e-tafwiz (delegated power to divorce) clause in favour of the wife whereby in case of a marital dispute she can divorce herself directly or through an agent (vakil).
Legal framework
Khurshid and the author of the nikahnama seem to have ignored the fact that the talaq-e-tafwiz condition actually emphasises the legal inferiority of a Muslim woman by conceding that her right to divorce will be secured only when the husband signs the nikahnama. The question is: why should the wife seek from her husband a right which is already available to her under the Koranic law?
Instant talaq
The nikahnama annexed by Khurshid also demands that a husband, who pronounces instant talaq, is liable to pay a fine of ₹50,000 and serve a jail term up to five years. This after declaring that talaq-e-bid’a is ‘judicially null and void.’
One fails to understand how a seasoned lawyer and politician could have approvingly attached such a shocking nikahnama in his book.
Nonetheless, having differentiated between constitutional and popular morality, Khurshid should have known that the same parallel exists in Islam too where like any written constitution, the Koran (although it is not a legal treatise) is considered the higher law and has been made a legal limitation upon all other sources of Islamic law including the hadees, ijma and qiyas.
Put differently, the fundamental Islamic doctrine is that all sources of Islamic law are subservient to the Koran . They cannot override the divine book.
Therefore, the biggest flaw in Khurshid’s arguments on Islamic law is that they unwittingly endorse the very patriarchal notions that Muslim reformists are trying to undermine.
Triple Talaq: Examining Faith ;
Salman Khurshid,
Oxford University Press,
₹395.
