The burning issue of triple talaq is back again with the Allahabad High court’s observation that the Muslims’ practice of divorcing their wives by uttering the word "talaq" thrice is unconstitutional, as several media outlets have reported.
"Personal laws of any community cannot claim supremacy over the rights granted to the individuals by the constitution," the high court stated.
Court and Constitution
A strongly-worded article in Firstpost has commented on the high court’s observation: "The All India Muslim Personal Law Board (AIMPLB) and some other Muslim organisations which have been aggressively defending triple talaq, citing the holy Quran, may not like the court’s judgment but it's better they understood that the Indian Constitution makes itself very clear on the rights of individuals and no amount of creative interpretation of the concession to communities would change that."
AIMPLB and Jamiat-Ulama-i-Hind
Indeed, it is for the Supreme Court to look into the intricacies of such a fragile matter and come with a verdict which is in compliance with the Indian Constitution and, at the same time, with the Quran so that it may be acceptable to all Muslims. However, we cannot leave the issue to the desecration of the self-imposed custodians of Islam and Muslims in India like the or the Jamiat Ulama-i-Hind (JUH). For, these self-proclaimed apex bodies of the Indian Muslims make use of such serious issues only to maintain their political hegemony over Muslims in the country. An earlier article in Firstpost has candidly exposed how the religiopolitical wings like the AIMPLB maintain its monopoly over the Muslim affairs in India using issues like the triple talaq as a political ploy.
In this political gimmick, both the AIMPLB and the JUH enjoy a huge support of the two diametrically-opposed Muslim sects — the Muqallids (those who follow any of the four Islamic schools of law) and the Ghair Muqallids or the Ahle-Hadisi/Salafis who don’t follow any of them.
Since its inception, the AIMPLB has been dominated by the males. But now it has also created a women wing which is nothing short of a group that supports the misplaced patriarchy in the name of Islamic Shariah. Isn’t it a great irony that the AIMPLB has decided for the first time in its long history, to form its women wing only to support the patriarchal power of executing triple talaq? Why didn’t it take cognizance of the need for a female-oriented body to go into other issues concerning Muslim women? After the creation of the AIMPLB’s women wing, it has been directed only to engage with the pro-personal-laws signature campaign in order to tackle the Law Commission’s questionnaire.
As for the JUH’s take on triple talaq, it has been good for nothing. Worst of all, it has confused the entire Muslim community in India which looks up to the JUH as a body of the high-profile Deobandi clergy. Recently, the JUH held its 33rd annual conference in Ajmer, where it clearly castigated the triple talaq as ‘un-Islamic’, while at the same time opposing any proposals for a Uniform Civil Code.
But, on the contrary, the JUH showed completely different colors when it proclaimed in clearer words that "triple talaq, ‘nikah halala’ and polygamy are well rooted” and that there cannot be any room for the state’s interference in the personal laws. In its counter affidavit, the JUH stated that the Muslim personal law has an element of certainty and is not local or regional in operation. "There is no scope for interference with the Muslim Personal Law, which is based on primarily the Holy Quran and the Sunnah of Prophet Muhammad, explained and applied by various scholars of great antiquity and authority after thorough research," it said.
Quran vs Constitution?
Much against the prevailing perception in the community, the Quran is full compliance with the Constitution on matters of talaq (divorce) and zawaj (marriage). In a very coherent and logical manner, the holy Quran prescribes a three-month waiting period for a woman undergoing the divorce process (2:228). The Quran issues an injunction for a divorce-giver man to formally articulate his intention at least twice over the period in the presence of witnesses (2:229). Moreover, in a couple of verses, Quran also stresses that there should be time-framing (2:231, 65:2).
Many Quran exegetes have noted that it was a rampant custom in the pre-Islamic Arabia, in the era of ignorance (jahiliyyah), that men could abandon their wives simply declaring, “You are to me like my mother’s back”, as the Quran itself narrates (58:2). In a stark contradiction to the Quranic pronouncements, triple talaq has been a nefarious instance of pre-Islamic Arabian patriarchy. Here’s is what the Quran pronounces in so many words and verses. A few instances:
"Divorced women shall wait by themselves for three monthly periods, for it is not lawful for them, if they believe in God and the Last Day, to conceal what God has created in their wombs…. (2:228). (O men, you must) pronounce the divorce over two occasions. Thereafter live together (with your mates) honourably, or part with (Tasrihu) them honourably…. (2:229).
"And if you divorce women, and they reach (the end of) their term, then either live together honorably, or part with (Sarrihu) them honorably, but do not keep them to injure them, (or) to exceed limits. Anyone who does that merely wrongs his own soul…" (2:231).
"And when they reach (the end of) their term, then either live together honourably, or part with (Fariqu) them honorably, calling to witness two just members from among yourselves and uphold the evidence (as) before God. This is to instruct anyone who believes in God and the Last Day. (Remember,) God will find a way out for anyone who heeds Him" (65:2).
An in-depth and objective probe into the above Quranic injunctions clearly reveal that the Quran is compatible with the Constitution. This compliance becomes more patently clear in the operative part of the high court's latest observation:
"Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. The divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. The statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" cannot be approved as the correct law. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected. (Ref: Pathayi v. Moideen 1968 KLT 763; A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261; referred to with approval by the Supreme Court in Shamim Ara vs State Of U.P. & another : 2002 (7) SCC 518)."
However, the problem with common Muslims in India is that they buy the misconstrued Quranic texts from the rapacious mullahs and self-serving maulvis. An earlier article in Firstpost has shown how the concept of Halalah (marriage of his former wife to another person in a bid to reclaim his reunion with her), which has fully different connotation in the Quran (2: 230), is grossly misconstrued and ill-practiced in the Muslim society.
But the JUH still seeks to rescue those who stage-manage the ‘nikah-e- halala’. Such ill-designed statements degrade women even in the 21st century India. Similar is the brazen violation of the Quranic verses (4:2, 3 and 127) which pertain to polygamy. Any insight into the Quran unravels that polygamy in Islam was validated under strict conditions. It was primarily institutionalised to safeguard women and orphaned children living in an intolerant Arabian society. But it is quite difficult for the short-sighted minds of the mullahs to comprehend it today. The related verses in the Quran permitted a restricted polygamy under the exceptional circumstances only.
Those with perverted minds will have to go back by 1,400 years to perceive the context under which polygamy was permissible. Since the pro-polygamy verses in the Quran were contextual, they cannot be given primacy over the universal Quranic verses which are always applicable to us. Needless to say, most verses in the Quran enjoin gender justice, equality, egalitarianism and a women-friendly Islam. Azizah al-Hibri has rightly put it: "The fundamental notion in the Qur'an is that of justice, and justice is gender equality."
MJ Akbar, the Union minister who has been a member of the Forum of Islamic Scholars, has masterly stated: "You cannot deny gender equality to any being. Denial of gender rights is against the Sharia [read Islam]. Anyone who has a deep understanding of the Quranic law will never have the courage to argue. He will simply not."
The author is a scholar of comparative religion, classical Arabic and Islamic sciences, cultural analyst and researcher in media and communication Studies. Views are personal. He tweets at @GRDehlvi.
Updated Date: Dec 08, 2016 21:19:06 IST