When the five-judge Constitution Bench of the Supreme Court began hearing petitions challenging the validity of instant triple talaq, halala and polygamy, there was a tizzy of excitement across India, especially in Muslim circles. The expectation was that these practices would be struck down as unconstitutional as demanded by some Muslim women’s groups. But the judges have made it clear that they will be examining only triple talaq now .
A case of misplaced priorities
Media reports would have us believe that the issue of gender discrimination in the Muslim personal law reached the Supreme Court because of petitions filed by victims of instant talaq and polygyny. The truth, however, is that it was the apex court which had asked for the registration of a Public Interest Litigation (PIL) in October 2015 to be put up before an appropriate Bench. Muslim individuals and groups impleaded themselves in the case only after the PIL was registered.
Surprisingly, the case in which the PIL was ordered — Prakash v. Phulavati , (2016) 2 SCC 36 — had nothing to do with the Muslim law. It pertained to the rights of Hindu daughters under the Hindu Succession (Amendment) Act, 2005. Aware of this fact, the court conceded (in paragraphs 27-30 of the judgment) that the issue of gender discrimination in Muslim law was not directly involved in the appeal before them. They are examining it because some of the learned counsel for the parties (in the aforementioned case) raised the matter, and “the issue has also been highlighted in recent articles appearing in the press on this subject”.
The Supreme Court’s self-registered PIL brought into sharp focus Muslim issues which, despite their gender discriminatory and un-Islamic nature, did not deserve to be prioritised. Indeed, amid a storm of media hype, one of these issues — triple talaq — metamorphosed into a convenient stick in the hands of majoritarian forces to beat the Muslims with. It was politicised to the extent that it became a topic of heated debate during the recent U.P. elections as though it was the only problem facing Muslim women.
A look at the 2011 Census would reveal that out of a total Muslim female population of 83.97 million in India, about 2.12 lakh are divorced. The census, however, does not tell us by what legal procedure these women were divorced. Therefore, even the hypothetical presumption that all these women were divorced instantly would not take the number of triple talaq-divorced Muslim women in India beyond quarter per cent of their population — 2.12 lakh is just 0.25% of 83.97 million. Compare this to the fact that a whopping 48.1% of Muslim women in India are illiterate as per the same census, which no Muslim women’s group seems to be aware of.
If despite these hard facts there is a misplaced emphasis on triple talaq, it is the direct result of relying on studies (criticised as totally flawed by several experts) conducted by the Bharatiya Muslim Mahila Andolan (BMMA) wherein this practice was projected as the most significant issue affecting Muslim women. Figures quoted above render this claim totally specious.
Nonetheless, to answer the question raised by the Supreme Court, instant talaq ( talaq-e-bid’a ) has no basis in the Koran and, therefore, is not fundamental to Islam. Muslim theologians must understand that concepts not sanctified by the primary source of Muslim law, the Koran, cannot be declared as essential parts of Islam irrespective of where they draw their legitimacy from. All sources of Islamic law, be it hadees , ijma or qiyas , are subservient to the Koran.
Divorce in Islam
And as per the Koran, only after four serious attempts at reconciliation (which includes arbitration) is a Muslim husband permitted to utter the first divorce, which is followed by a three-month waiting period called iddah . If within iddah the marital dispute gets resolved, conjugal relations may be resumed without undergoing the procedure of remarriage. But after the expiry of iddah the husband can either re-contract the existing marriage on fresh and mutually agreeable terms or irrevocably divorce his wife — in the presence of two witnesses — by pronouncing the final talaq. (A detailed exposition of this procedure can be found in this author’s article, “ The continuing tyranny of the triple talaq ”, The Hindu , April 4, 2012)
This is the only method of divorce mandated in the Koran. Other forms such as talaq-e-bid’a,talaq-e-hasan , talaq-e-ahsan and talaq-e-tafweez are concepts of Hanafi jurisprudence. They find no mention in the Koran. Thankfully, it was the Koranic procedure that the apex court endorsed in 2002 when in the Shamim Ara v. State of U.P. case it invalidated talaq not preceded by arbitration or reconciliation attempts between the husband and the wife.
It may be pointed out here that the pronouncement of three talaqs in one sitting does not constitute even one divorce as held by the Ahl-e-Hadees sect. In the Koranic view, first divorce becomes effectual only after the parties have gone through the process of reconciliation and arbitration. Divorces uttered without exhausting these options have no legal validity in Islam.
In this context, the views of Salman Khurshid quoted in the media are astonishing if true. Mr. Khurshid had told the apex court on May 12 that the All India Muslim Personal Law Board (AIMPLB) is the best body to guide the court on the varying philosophies of schools of Islam about triple talaq.
The reality is, had the AIMPLB been open-minded about different schools of Muslim thought, it would not be blindly advocating the Hanafi viewpoint that validates talaq-e-bid’a (instant triple talaq). The board would have made use of legal devices such as takhayyur and talfiq al mazaahib which allow jurists to amalgamate the doctrines of various Islamic legal schools to formulate reformist interpretations that are capable of outlawing unjust practices such as talaq-e-bid’a . On the contrary, the preface to the AIMLPB’s Compendium of Islamic Laws released in 2001 categorically states that the original Urdu version of the compendium contains extensive notes in Arabic drawn from “authentic books of the Hanafi law”, which is a clear indication of the board's intention to view Islam only through the prism of Hanafi law and nothing else.
The way forward
Given the reluctance of Muslim religious bodies in India to give up their sectarian conformism and delegitimise talaq-e-bid’a , the Supreme Court will be well within its rights under Articles 141 and 142 of our Constitution to resort to, in consultation with progressive Islamic scholars, a neoteric interpretation of the terms “talaq” and “Shariat” mentioned in section (2) of The Muslim Personal Law (Shariat) Application Act, 1937, and lay down the procedure of divorce in accordance with the egalitarian and gender-just principles of the Koran.
In pursuance of this, the Constitution Bench may, without putting the Muslim personal law to the test of Article 13 (1), further clarify, elaborate and enlarge the scope of the Shamim Ara judgment and make the Koranic procedure of divorce ratified in that ruling common to both men and women. This would render the law gender-just by eliminating the need for khula , wherein Muslim women seeking divorce are required to get the concurrence of their husbands or the qazi to get the marriage dissolved.
The good news is, even outfits such as the BMMA which have been vociferously calling for a ban on triple talaq seem to have realised the untenability of their views. The BMMA’s co-founder and intervener in the PIL before the Supreme Court, Zakia Soman, has now submitted to the Supreme Court (in her affidavit filed on March 3, 2017): “… the courts in India have by a purely interpretative exercise held that talaq-i-bidat or instantaneous talaq is illegal, ineffective and has no force of law. If the same declaration is given by this Hon’ble Court by a process of interpretation of personal law, then the question of going into the constitutionality of personal law does not arise.”
The change in the BMMA’s attitude towards Muslim personal law deserves to be welcomed and must be considered seriously by the apex court.
