TRIPLE TALAQ: Women’s Rights Vs Religious Freedom

TNN Bureau. Updated: 11/18/2016 4:05:02 PM Ideas and Interaction

Whether it's cricket legend Imran Khan's infamous divorce via text message where he wrote 'Talaq' thrice and parted ways with his wife, former BBC journalist Reham Khan, or the famous Shah Bano case in India, the sanctity of the institution of marriage has been tarnished time and again by age-old theocracies.
'Talaq' is an Arabic text in Muslim Laws, and means freedom from the bondage of marriage by the husband in accordance with the procedure laid down by the Sharia law in Sunni Islam. But in Shia law, talaq has to be pronounced orally. Under some schools of Sunnis, a talaq pronounced under compulsion, coercion, undue influence, fraud or under intoxication is invalid. Instantaneous 'Triple Talaq' means a man can divorce his wife by pronouncing the word thrice.
The question of abolishing triple talaq is not just a movement against patriarchy, but a call for justice for women's rights. But for some Muslims, this isn't only a clear interference on the Supreme Court's part in personal and religious laws of the community, but it is also a violation of the religious freedom given to the people of India by the Constitution.
The Muslim Personal Law Board said last Thursday that a Law Commission questionnaire to gauge public opinion on triple talaq and other anti-women practices across religions is a "fraud", that it will boycott it and that a uniform civil code is not good for India.
The Muslim Law Board also said that the law commission isn't acting independently and is instead acting at the behest of the Centre, which last week opposed the practice of triple talaq in the Supreme Court and said it can't be regarded as an essential part of religion.
The Commission in its questionnaire asks whether triple talaq - which according to Islamic law based on the Koran permits a husband to pronounce talaq three times to instantly divorce his wife - should be abolished altogether, retained only in customs without legal sanctity, or retained with suitable amendments.
AMIT GUPTA talks to a patron of a religious organisation, an academician and an advocate to know the relevance of practising 'Triple Talaq' in the present times. Here are the excerpts:
Ramakant Dubey

Patron, Vishwa Hindu Parishad

The concept of 'Triple Talaq' is obsolete and must be scraped out for the welfare of society. It creates discrimination against Muslim women. You cannot give divorce to a woman over a phone call, e mail or via letter by just saying 'Talaq' three times. It is an uncivilized way which may destroy the lives of women. If you want a divorce, then you must appeal for it under laws of the country in a civilized way. Many other Islamic nations have also banned this practice, then why not India has done so till today? Religion is for the betterment of the society and many customs and traditions which are misinterpreted or outdated must be reformed. Adapt the good from religion but don't misinterpret it. The radical nature of few religious leaders is an obstacle in the path towards a civilized society. They make their own perceptions and then misguide the people to blindly follow whatever they preach. The Shah Bano Case was a landmark in the personal law issue but dirty politics of vote bank made it like a roller coaster ride. Moreover, we live in one country, so one Uniform Civil Code must be followed so that no discrimination can be made on the basis of religion, race, sex, caste, etc. Different laws for different communities will divide the country and hence we may not prosper in the way we should.

The Infamous Shah Bano Case

Shah Bano, a 62 year old woman from Indore, was divorced by her husband, Mohd. Ahmed Khan in 1978. Unable to support herself and her five children, she moved the courts to be granted maintenance from her ex-husband. Seven years and several judgments later, the Supreme Court ruled in favour of granting Shah Bano alimony. Largely seen as a threat to Sharia law by some Muslims, what followed a debate over the constitutionality of including different marriage and personal laws for different religion, and resulted in the passing of the Muslim Women (Protection of Rights on Divorce) Act, 1986, by the government.
The case was significant for several reasons. In giving its judgment, the Court ordered maintenance with an upper limit of Rs. 500 monthly, under Section 125 of the Code of Criminal Procedure, 1973, which applies to all citizens regardless of caste or religion. Although seen by many as a secular judgment, it invoked a strong reaction from the Muslim community, which felt that the judgment was an encroachment on Muslim Sharia law. It led to the formation of the All India Muslim Personal Law Board in 1973, an organization that sought to preserve and protect the applicability of the Muslim Personal Law (Shariat) Application Act, 1937. The backlash from the Muslim community prompted the government to begin parliamentary procedures that, in essence, overturned the Supreme Court's decision. The Muslim Women Act(Protection of Rights on Divorce), 1986, was passed amidst great controversy and debate. Many argued that it was a way to appease the minority group that was threatening agitation.
The Act states that the husband must pay alimony during the period of iddat (3 months following the divorce). In case the woman has no means to support herself, or has no relatives that can look after her, a magistrate can order the state WAKF board to provide sustainable maintenance to the woman and any dependent children. It does not define an upper limit to the maintenance. It states that women may seek reasonable and fair compensation during the iddat, and that any children borne of the marriage are entitled to a further maintenance as well. Because there is no upper limit to the compensation, it is not unusual for Muslim divorcees to receive large lump-sums from their former husbands. (In 2009, the courts ruled that Section 125 of the CPC (1973) applies to Muslim women as well,, and that alimony can be sought after the period of iddat ends as long as the woman does not remarry.)
The Act gave women a chance to claim fair and rightful compensation, but it also drew criticism from various groups. Minority Rights Group International, an NGO based in the U.K., denounced the law, commenting that it "highlighted the disjunction between constitutional law premised on the principle of sexual equality and religious laws which discriminate on the basis of this very category."
Shah Bano's case brought the need for a secular Uniform Civil Code into the limelight again. To date, however, individual Personal Laws based on religion are still in effect. The case remains a ground-breaking one in Indian divorce law and is often used as a benchmark by the courts.

Bhat Iqbal

Assistant Professor, Department of Sociology and Social Work, Central University of Jammu

India is a diverse nation and before coming to any conclusion every section of the society must be taken into confidence. In my opinion, the 'Triple Talaq' system has been highly exaggerated although I am not in favor of practicing it. Every law, tradition, custom or practice has its relevance according to a certain time frame but as soon as there raises a need to change it then debates must be conducted to consider the issue. Amendments are required every now and then. As far as 'Triple Talaq' is considered, it is an out dated concept as it violates the relevance of gender equality. It must have been banned way back but the problem in our country is that we don't talk to intellectuals rather we rely on the clergy. Why are we hosting on Muslim Personal Law Board member? Why Muslim scholars are not been dragged into the issue to give their opinion? Many Muslim scholars have written against the practice of 'Triple Talaq' but it is not brought into light. Another problem is that every issue in India is politicized. Political parties look towards such matters as opportunity to fill their vote bank. They try to please one section of the society which is irrational. The educated and aware citizens of the country must come forward and form an opinion because it is very important for any country to reform itself.

B. S. Salathia

Senior Advocate, J&K High Court

India is a democratic country and we are provided fundamental rights by our constitution. One of them is Right to Equality and it cannot be violated at any cost. Religion cannot overwrite the constitution of India. If some personal laws are hurdles in its path, then they must me amended. Practice of 'Triple Talaq' has been ruled out in many Islamic nations as it is inhumane. It deprives women of their rights. What would a Muslim woman of old age do if her husband gives her divorce and denies paying the maintenance? If we go by personal laws, then she will have no other choice but just to get compensation for 90 days called the period of 'Iddat' only. This is not acceptable in present times. I strongly oppose this practice. India is a country of Indians only not any Saints or Imams. Laws must be made uniformly by the Constitution and followed by every citizen of India. Radicalization of religious practices divides the people, so everything must be viewed rationally to maintain the unity of the country. A Uniform Civil Code must be implemented as it prevails in other nations. It is a pity that whenever few religious leaders stand up against rational laws, they get support from political parties as well. Political parties have always exploited people for their own interests which one of the major reason of such issues still prevailing in the society.

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