A man who pronounced triple talaq upon his wife approached Caliph Umar, one of the most powerful and influential Muslim Caliphs in history, for punishment. The Caliph ordered the man to be whipped. But he also ensured the separation of the couple.
This anecdote is quoted by the All India Muslim Personal Law Board (AIMPLB) in an affidavit to explain that though triple talaq is a “sin” and the “least appreciated form of ending a marriage”, Shariat (Muslim personal law) permits it.
Polygamy, it said, is “not even desirable”. The Quran does not make it mandatory. “Yet, since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited,” the AIMPLB told the Supreme Court.
The powerful Muslim body was replying to the court’s decision to examine whether Islamic personal laws discriminate against Muslim women.
The Board compared the religion’s tolerance to triple talaq to the situation of a sinner being appointed as a judge. “In Islamic jurisprudence, many times an irregular or improper nature of an act does not affect the legal consequences of the act. For instance, it is not lawful to appoint a sinner as a judge. However, if the State appoints a sinner as a judge and he passes a judgment, that judgment will be effective, provided it is within the limits of Sharia,” it explained.
However, the Muslim body said, any “uncontrolled use of divorce without regard to the restrictions established by the Shariat is a sin”. “To divorce the wife without reason and only to harm her, or revengefully due to the non-fulfilment of his unlawful demands by the wife or her guardians, and to divorce her in violation of the procedure prescribed by the Shariat, is irregular and undesirable,” it explained.
The AIMPLB argued that the Shariat permits triple talaq in the interest of both the man and woman as a means to keep their dignity and privacy intact. The intention is to save the family from delayed justice in conventional courts and to avoid mud-slinging in public. The Shariat intends triple talaq to help the estranged couple to “move on” with their lives and get over the bitterness and hatred they had felt for each other, the AIMPLB said.
“To presume that each triple talaq is arbitrary and unreasonable is a fallacy of reason...it is a misconception that triple talaq is always a result of haste and is a power which is freely misused by a Muslim male,” it said.
In fact, over the years, triple talaq is resorted to only if intervention by families to reconcile the couple has failed and the couple wants “instant dissolution”. “There are innumerable instances where a Muslim wife seeks dissolution of marriage and approaches her husband for immediate dissolution by triple talaq,”the Board said.
‘If live-in is moral, why isn’t polygamy so?’
“If Indian laws can protect women having a living-in relationship with married men, why should polygamy be frowned upon,” the All India Muslim Personal Law Board (AIMPLB) asked the Supreme Court.
The Muslim body said the Protection of Women from Domestic Violence Act, 2005, protects women who were in live-in relationships with men, even if the latter were married, bachelors or widowers. This shows that the “promiscuous relationship” of a woman with a married man is no longer immoral. So why should a formalised polygamous marriage be considered immoral, it asked.
The board said “illicit sex had raised its head” in countries where polygamy is banned. “Women should appreciate the point that if the ratio of women is higher, would they prefer wedlock for fellow women, or let them be illicit mistresses of men, without any of the rights which a wife gets,” it asked the Supreme Court.