Can ‘talaq' typed thrice in jest by a Muslim man to his wife during an internet chat constitute the termination of their marriage? Yes, infamously decreed the Darul Uloom Deoband, one of Asia's biggest and most influential seminaries, in a recent response to a written question. It was purportedly from a man in Qatar, who sought a clerical opinion on the implication of his jokey behaviour over Skype towards a wife he claimed he loved. The man's motives for, and indeed seriousness in, asking the question of the Darul Uloom in Uttar Pradesh are unclear. But the answer in the form of a fatwa — that his wife has become ‘haraam' and that he has no right to take her back or remarry her without ‘halalaah,' that is, until she marries someone else and divorces him after observing the mandatory ‘iddat' or waiting period — reflects the regressive tendency among a section of the Muslim clergy to support the practice of triple talaq. This arbitrary form of divorce, which gives Muslim men the right to divorce their wives instantaneously by uttering or writing the word ‘talaq' thrice, has no place in a modern democratic society. Significantly, triple talaq or ‘talaq-e-bidah' has no sanction in the Koran, is not accepted by Shia Muslims, and is proscribed explicitly or neutralised by strict restrictions imposed on its practice in many Muslim countries, including Pakistan, Indonesia, Iraq, Turkey, and Tunisia.

For long, progressive Muslim organisations have argued that triple talaq is un-Islamic and campaigned for its abolition. Unfortunately, a section of the ulema and the All India Muslim Personal Law Board (AIMPLB) have continued to regard this indefensible practice, which has caused many thousands of women to suffer, as a male entitlement. Six years ago, there were expectations that the AIMPLB, which was in the process of drawing up a model ‘nikahnama' (marriage contract), would recommend abolishing triple talaq. But the document ended up by tamely suggesting that men should not resort to ‘talaq-e-bidah' unless inevitable. Although the Allahabad High Court controversially held triple talaq was unconstitutional in 1994, the judiciary's general approach, from pre-Independence times, has been influenced by the stance that although the custom is ‘bad in theology,' it is unfortunately ‘good in law.' From time to time, Indian courts do adopt a more equitable and gender-sensitive approach while interpreting and deciding legal issues pertaining to Muslim marriage law. But the law itself needs to be reformed — ignoring, if need be, the recalcitrant and reactionary positions staked out by some sections of the clergy and others who claim to speak for the Muslim community.

More In: Editorial | Opinion