The Supreme Court correctly decided that instant verbal divorce — known as triple talaq, favoured by some Muslims — is arbitrary and ‘un-Islamic’. The decision was balanced, well-considered, and long-overdue. It is a step forward for all open-minded Indians, but credit for it cannot be claimed by men or by any political party: it belongs to a line of brave (Muslim) women, including the five who finally obtained this verdict.
The judgment is a welcome milestone, though it is also true that many Muslims have never personally known triple talaq. I can think of only one case among hundreds of Muslim family members and friends, and even that was a case of wife-abandonment, which reportedly afflicts Hindus more than Muslims.
In fact, my immediate family and I were basically unaware that triple talaq could be legally practised, until we saw the 1982 B.R. Chopra hit, Nikaah , featuring some excellent songs by Salma Agha, who also acted in it. I remember that after the film show, we discussed whether triple talaq was really possible: while we knew that it was permitted under Shariah law in India, we thought that this would be the case only if the wife (or ex-wife) did not challenge it in court. If challenged in court, the law of the country would take precedence.
Then and now
After the Shah Bano maintenance-related case three years later, largely due to meddling by the Congress government of those days, it became clear that this was not so. However, we were not entirely wrong in our general understanding of the matter. For instance, after the Supreme Court judgment finally outlawed triple talaq last month, a functionary of the current BJP government maintained that no new legislation is required. Instead, anyone persisting with the practice of triple talaq can be prosecuted under existing domestic violence laws, he said. This is something like what, back in 1982, we had assumed was the case.
The other matter to put in context is the nature of triple talaq: there is no evidence that it is a binding centuries-old tradition, as reported in sections of the media, or that it is compulsory in Islam per se. Most Muslim countries do not have triple talaq, and historical records indicate that triple talaq, which might have been a local practice in some parts, was institutionalised in India under the colonial regime with the adoption of the Shariah code only in 1937. Before that, even the colonial legal practice regarding Muslims was seldom Shariah-based: it was largely based on customary law, which was often too contradictory and even more conservative than Shariah law. Hence it was replaced by the Shariah code in 1937.
The ulema could have continued this tradition, and reinterpreted the Shariah — for it is their job to interpret Islam — in ways that would have made all this drama unnecessary. In doing so, they would have sent out a strong message to the Muslims who listen to them: that the project of India, as a country, is not in opposition to their identity as Muslims. Sections of the Sunni ulema have unfortunately lost a great chance to provide a cohesive and collaborative example to ordinary Muslims, and might even have added to the sense of siege that some Muslims feel today.
While unnecessary or exaggerated at times, this sense of siege is not always paranoia — because Muslim contributions to Indian history and culture are often dismissed by politicians associated with the BJP. To say that the Taj Mahal is not part of Indian culture or that Urdu is a Pakistani language is to suggest that Muslims do not belong in India. Too many such statements are made in India these days and they are not vigorously challenged by senior BJP leaders who should know better.
Triple talaq and other issues
At a lesser level, the impression in certain quarters that Muslim men were going about saying ‘talaq, talaq, talaq’ to their successive wives is part of this problem. Most Muslims did not employ triple talaq. But it did afflict hundreds of Muslim women, and it is good this judgment has been passed, finally. I have to say so again, for I know (from Facebook) that not only will I be castigated by some ulema-types for supporting the judgment, but also by certain Hindutva-types for not considering it the solution to all problems of Muslim women.
No, it is not a panacea for the problems of Muslim women because triple talaq simply did not affect most Muslim women. Other problems did and do, such as lack of health facilities, education and job opportunities. Even the implementation of this judgment depends on a more vigorous attempt to tackle these issues.
After all, if the government feels, and rightly so, that extant legislation is sufficient and that families still practising triple talaq can be prosecuted under current domestic violence laws, then the government assumes that Muslim women have the education to be aware of their rights, and the economic and social space to go to court against their own families and circles. This, as both Hindu and Muslim wives abandoned by their husbands will attest, is not the case today.
We still live in a country where 36 innocent people can be killed by those opposing a procedural court conviction for rape!
