Talk Point: What reforms has the Muslim community initiated on triple talaq?

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The Supreme Court’s intervention on triple talaq was contested by the All India Muslim Personal Law Board. Clerics and Muslim scholars argue that personal law is strictly outside the court’s jurisdiction. While the apex court ruling is just around the corner, we ask experts the internal reforms the community has implemented on this controversial issue.

What are the internal reforms that the Muslim community introduced in the area of marriage and divorce? We ask experts.

The Board introduced the “model nikah naama”, called for social boycott of those who give instant triple talaq — Kamal Faruqui, Member, All India Muslim Personal Law Board 

With the advent of Islam, revolutionary steps were taken. Abolition of slavery, female foeticide, property rights for women and framework for the institution of marriage are some hallmarks of Islahe Mashra (reform of society).

The triple mode is not the only way to divorce. Even if it is pronounced once and there is no settlement of dispute, it would be valid (talaque hasan and talque ahsan). But in such a situation, both the husband and wife can marry again under specific circumstances on the revised terms and conditions. In the case of triple divorce (acceptable by more than 90 per cent of Indian Muslims belonging to hanafi school of thought), once it is pronounced, it becomes permanent. But the incidence of divorce among Indian Muslims is the lowest compared to other religious groups.

Prophet Muhammad (SAS) was not pleased with the practice of divorce on whimsical grounds and was extremely angry about the pronouncement of instant triple divorce. But he did not ban triple divorce, which is useful when the husband and wife want instant separation.

The Muslim Personal Law Board brought out the “model nikah naama” over two decades ago, making separation difficult without arbitration – whether through single or triple divorce.

It also passed a strong resolution to discourage instant triple divorces and called for the social boycott of those who practice it. It advised people involved in the nikah process to put stringent conditions in the “nikah naama” against it.

The “shariah” laws also encourage re-marriage of divorcees and widows. So while triple divorce is unpleasant and reprehensible, it is a part of “shariah”, which at times can benefit the couple.

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There have been no internal reforms in the Muslim personal laws since 1939 — Arif Mohammed Khan, former union minister from 1984-1988

We are a democratic society and individuals or organizations have the right to free opinion, which may be logical or otherwise.

Article 13 of the Constitution clearly lays down that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the fundamental rights, shall to the extent of such inconsistency be void.

The Muslim Personal Law (Shariat) Application Act 1937, under which triple talaq is given legitimacy, is one such law. This is not a codified law but a declaratory one and courts decide cases on the basis of opinions of the school of jurisprudence the litigant parties belong to.

Now if I feel that some provision of the law takes away or abridges my fundamental rights as guaranteed by Part III, then the Constitution provides me the remedy to challenge the law in a higher court.

If the contention of Personal Law Board is upheld, then the aggrieved person shall have no remedy against a provision like triple divorce that is patently iniquitous. Secondly, the question will arise as to why courts should administer a law that is beyond their jurisdiction.

I am not aware of any internal reforms except the Dissolution of Muslim Marriages Act of 1939, where the initiative was taken by the Muslim clergy, mainly to check the growing number of Muslim women who resorted to change of religion to get out of bad marriages because the law passed in 1937 had practically denied them the right to seek dissolution of such marriages.

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A very welcome step is the training and appointment of female qazis — Rana Safvi, author of “Tales from the Quran and Hadith: Islam’s Greatest Stories – Retold for the Modern Reader”

Whichever way the verdict of the Supreme Court goes on the validity of triple talaq in light of the fundamental rights enshrined under the Constitution, the community needs to introspect.

It is a historical fact that Islam’s golden age, which lasted till 13th century was the period when ijtehad (independent reasoning) and the spirit of inquiry was strong, resulting in scientific discovery and classical literature. The stagnation which has crept in, and created an atmosphere of ignorance where not many are really aware of the teachings of the Quran and blindly follow whatever they are told, has to be challenged. Secular and not just religious education for males and females is the only way forward. People have to be made aware of their actual rights.

Forums for discussion should be started and women must find their voice.  A very welcome step is the training and appointment of female qazis. Fifteen women recently graduated fom Darul Uloom Niswan in Mumbai and are now handling cases. They are aware of the rights given to women in the Quran. While male qazis were often party to arbitrary divorces, women qazis can arbitrate keeping women’s interests.

A nikahnama, with all the conditions needed to safeguard the interests of both parties, is essential. In case triple talaq is not held unconstitutional by the SC, the nikahnama should have a clause stating that a husband can’t pronounce instant triple talaq and has to wait for a three-month mediation period. The wife must be given right to divorce under talaq-e-tafweez in case her husband remarries or oppresses her.

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Indian Muslims are entitled to the protection of a codified Muslim family law — Zakia Soman, Co-Founder of Bharatiya Muslim Mahila Andolan, petitioner in the Supreme Court in the triple talaq matter

Triple talaq is neither Quranic nor Constitutional and its abolition is overdue in our country. Muslim women speaking out against triple talaq and demanding justice is an indication of the change taking place within the community. The change is being led by women themselves who are questioning patriarchy that has been masquerading as religion.

Today, a Muslim woman knows that the Quran gives her rights and dignity in marriage and that she has equal rights as citizen in a democratic country. She doesn’t trust the so-called personal law board or the self-appointed custodians of Islam. Malpractices such as triple talaq, nikah halala, polygamy take place among Indian Muslims despite gender justice being a fundamental principle of Islam. Triple talaq is a hurtful practice that renders a woman homeless in an instant, without any support for her or her children, causes huge emotional trauma and physical hardship. She must get legal protection against this arbitrary and unilateral practice. In Islam, marriage is a social contract. The husband must be made accountable to the wife and her well-being.

Several women have petitioned the Supreme Court and many have approached lower courts in different parts of the country. Gone are the days of 1986 when Shah Bano’s voice was crushed by a nexus of patriarchal forces.

India needs a comprehensive reform in Muslim personal law. Indian Muslim women are entitled to the protection of a duly codified Muslim family law. Triple talaq is violation of a Muslim woman’s right to religious freedom as it takes place without Quranic sanction.

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Our Ulema have a duty to lead the reform process — Faizan Mustafa, Vice-Chancellor, NALSAR University of Law (views are personal)

As a divine policy, Quran does not contain ‘law’ in the strict sense of the term. ‘Law’ in Islam is to be extracted from the sources of Islamic Law. This extraction is human activity and is called ‘ijtihad’ which means ‘endeavour’ or ‘self-exertion’.

Thus, Muslim Personal Law (MPL) is largely based on juristic interpretations rather than direct divine commandments. Other than Quran and Sunna, all sources of Islamic law are based on human reasoning such as Ijma (consensus amongst learned), Qiyas (analogical deductions), Istihsan (Juristic preference), Istisilah (public interest) and ijtihad (juristic reasoning).

Thus, Ulema or jurists discover ‘law’ in Islam. Islamic law is jurist-given law. Jurists intervene between God and State. ‘Shariah’ bears a stranger affinity with revelation (divinity) whereas fiqh (Muslim Personal Law) is mainly product of human reason.

So, our Ulema have a duty to lead the reform process of Muslim Personal Law through inter-school borrowing of rules and liberal interpretations keeping in view present day context. Ulema have done it before. On their own initiative, the highly progressive Dissolution of Muslim Marriage Act,1939 was passed where the Hanafi school liberally borrowed from other schools. The Board has already notified eight-step divorce process, which is highly appreciable.

It should now decide on the pattern of Mughal-era inclusion of prohibition on triple divorce in the nikahnama itself. No decision of the court or law enacted by the Parliament will give the desired results until, and unless, the Ulema endorse the view that resumption of matrimonial relationship even after triple divorce is not sinful.

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Ordinary Muslims dismiss the argument that the triple talaq debate is an insidious agenda to marginalise their community – Sanya Dhingra, ThePrint 

The biggest success of the debate on triple talaq has been that it brings to the fore what constitutes the identity of an Indian Muslim. The communally charged debate has bared fissures within the community, and that strikes at the core of the right-wing narrative that portrays the community as stagnant and inimical to change.

While reporting on the issue in Muslim neighborhoods, I found the sense of victimhood glaringly absent from their articulation. Those who support the legal abolition of triple talaq do not see the State as the other, which is the what the Muslim orthodoxy claims. Ordinary people I interviewed dismiss the argument that the call to ban triple talaq is part of an insidious agenda to marginalise their community.  The orthodoxy calls for internal reforms and is against judicial intervention.

“What will one whose life has been destroyed do with religion?” one woman in a Delhi neighborhood asked.

As a professor from Jamia University once told me, triple talaq is not the only method of divorce prescribed in Islam. But in popular discourse, that is how it is portrayed. As a result, ignorant or chauvinistic Muslim men are allowed a false sense of entitlement, and the majority of the community is made to look down upon its women with a sense of pity and a misplaced feeling of social superiority.

However, Muslim women are also divided on whether triple talaq should be outlawed by the Supreme Court or by the community. But the manner in which they have directed the debate has already shrunk the space for communal rhetoric on the issue.