Hasibur Rahaman Molla
Department of Geography,
Sivanath Sastri College,
Muslim women suffer from challenges comprising education, livelihood, health care, etc. They lag behind in almost all key socio-economic indicators of development. Additionally and very importantly the Indian Muslim women face hardship in marriage and family emanating from the rampant misinterpretations of Quranic tenets related to marriage and divorce. Bharatiya Muslim Mahila Andolan (BMMA) reported that since 2007 they have come across numerous cases of verbal talaq rendering Muslim women destitute. BMMA has been working on numerous accounts of Muslim women being divorced overnight and separated from their children as their husbands chose to unilaterally say ‘talaq’, ‘talaq’, ‘talaq’. In most cases, the husband’s mindset as well as the action is dictated by a commonsensical understanding that the husband enjoys the ‘right’ given by Islam to divorce his wife just by saying ‘talaq’. Hardly there is any awareness about Quranic injunctions or the real meaning of ‘talaq’. However, the Indian Government has criminalized the triple talaq by an act of parliament on 1st August 2019.
The practice of instant triple ‘talaq’ (uttering ‘talaq’, ‘talaq’, ‘talaq’ at a time) to divorce a woman by her husband is the misinterpretation of Quranic guidelines. ‘Talaq’ (divorce) should be the last resort of believing Muslims if there is serious marital discord. Nowhere in the Holy Quran, it is mentioned that triple ‘talaq’ at a time will be considered as ‘talaq’. The Prophet said, “The most hateful permissible thing in the sight of God is divorce” (Abu Dawud: 1863). But when the situation is such that the couple can’t stay together, then the ‘talaq’ is desirable. Quran (3:34) advises the husband to reason out (Faizuhunna) with his wife through discussions. If differences persist the couple is directed to keep sexually distance themselves (Wahjuruhunna) from each other in the hope that this temporarily physical separation may encourage them to reunite. And if it fails, the husband is said to once again explain (Wazribuhunna) to his wife about the seriousness of the condition so that there is a possibility of reconciliation. If the differences persist, the Quran (4:35) instructs the matter to be put before two persons (arbiters), one from the family of each spouse to provide reconciliation efforts.
After the failure of the above mentioned four attempts to unite them together, the Quran allows first ‘talaq’ to be uttered and followed by a waiting period of the three months. This waiting period is called Iddah. Not more than tow ‘talaq’ can be pronounced within this period. If the husband and wife are unable to reconcile during Iddah, the final ‘talaq’ can be pronounced in the presence of two witnesses but only after the expiry of the Iddah. Even after the Iddah has lapsed, the Quran offers the challenging parties a chance to reunite, provided the final talaq has not been pronounced. Once the final ‘talaq’ has been pronounced the break up in the marital is taken place and the parties are considered as divorced.
Religious Freedom versus Universal Rights in India
Since independence, India is staggering with the issue. Our constitution has enshrined both universal rights and religious freedom. Article 15 of the Indian Constitution says “the state shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them. Article 26 of the Indian Constitution has given the people the freedom to manage their respective religious affairs. It (Art. 26- b) says “subject to public order, morality, and health, every religious denomination or any section thereof shall have the right to manage its affairs in matters of religion”. We have a plurality of faith and belief and the plurality of cultures amongst us. Seeking to accommodate multiple faiths, India’s law for marriage, divorce, and inheritance related matters are deemed to be ‘Personal Law’ and are left largely up to the respective religion. The practice of instant triple talaq simply violates the fundamental rights of the Indian constitution as the constitution does not allow women to be treated differently. According to Yusuf Muchhala, a lawyer of All India Muslim Personal Law Board, the religious freedom nowhere means a free license to the male of the Muslim community to subjugate the woman.
Triple Talaq and All India Muslim Personal Law Board
The practice of triple talaq is illegal in many Muslim majority countries, but in India, it was permitted (before 1st August 2019) under the Muslim Personal Law (Shariat) Application Act, 1937. According to this Act, in matters of personal disputes, the state will not intervene and religious authority will instead pass the judgments. (Al Jazeera, 2016). All India Muslim Personal Law Board (AIMPLB) has been set up in 1973 as a custodian of Muslim Personal Law. It wants to impose the Shariat laws on the Muslim community in India and the focus of this organization is to educate the Indian Muslim and built awareness on the protection and application of Islamic laws. This law has made the Muslim community stuck in a time warp and the subsequent laws like the Dissolution of Muslim Marriage Act of 1939 and the Muslim Women (Protection of Right on Divorce) Act of 1986 had not been able to move the community away from discrimination shown to Muslim women (The Hindu, 2016).
Instant triple talaq in the Muslim community is malpractice to give divorce to a woman by her husband arbitrarily. This type of one-sided divorce without any effort to reconcile is neither formulated in the Quranic guidelines nor supported by the Indian Constitution. It is due to the misinterpretation of Quranic guidelines by some clerics, the Muslim women are facing great adversaries in their marital as well as natal lives. Indian Muslims do not have codified Shariat Laws that adequately address all aspects concerning marriage and family matters. The conservative sections are unaware and unconcerned about the issues of Muslim women and therefore they cannot continue speaking for them. By recognizing only the conservative religious voices the democratic state has also failed in enabling fair representation for all sections of the population including women. Regarding marital disputes, the triple talaq is banned in several Muslim majority countries. Therefore, in India, the practice of instant triple talaq as a means to divorce cannot continue when the era is confronted by modern conceptions of justice and rights, and the ideals of universal human rights, equality, and personal freedom.