Arguing before the Supreme Court on Monday, the All India Muslim Personal Law Board (AIMPLB) took two positions on the issue of triple talaq, the practice whereby a Muslim husband utters talaq (divorce) three times to end a marriage. One, it told the court that if triple talaq is declared illegal, it would amount to disregarding Allah's directions and rewriting of the Quran and would force Muslims into committing a sin. Two, the Muslim personal law provisions such as triple talaq enjoyed the protection of the Constitution's Article 25 which guarantees citizens a fundamental right to profess and propagate a religion.
Let's take the second point first. Article 25 gives the "freedom of conscience and free profession, practice and propagation of religion" to the Indian citizen. But this right is subject to two sub-clauses — clause 25 (1) notes that the freedom of religion is "subject to public order, morality and health" and clause 25 (2) clarifies that the right to religion does not "prevent the state from making any law" regarding the welfare of people. So, the Constitution is clear that the right to religion, though a right, is an inferior right among all the fundamental rights. The AIMPLB cannot take refuge under Article 25 because triple talaq is against the public morality of our times.
There are further implications of Article 25. One, the right to religion is available to the Indian citizen, not to religious communities, and certainly, does not apply to organisations like the AIMPLB or Jamiat Ulema-e-Hind and others. Two, Article 25 allows a citizen to practice and propagate his/her beliefs, but the differing institutionalised practices of religious sects are not protected under this right because they are not essential to the belief in a religion. So, if the court declares triple talaq illegal, it will not harm religious beliefs of Muslims and no sin will be committed. About two-dozen Muslim countries including Pakistan have already abolished triple talaq.
Religious practices are also not protected by Article 25 for the simple reason that they harm the welfare of citizens. Notably, Shayara Bano, a Muslim woman from Uttarakhand, has approached the apex court because her welfare is harmed by the arbitrary practice of triple talaq. It is also clear that under the Constitution, the religious freedom is subject to all other fundamental rights. This means that the Article 14, which guarantees the right to equality, overrides Article 25 because triple talaq denies a Muslim woman's equality before the law.
Similarly, Article 25 is subject to Article 15 (1) which says that the State "shall not discriminate against any citizen on grounds only of religion, race, caste, sex..." Since triple talaq is anti-women, it violates Article 15 (1) of the Constitution.
To return to the first point. The AIMPLB is not a representative body of Indian Muslims and its members are not elected. The AIMPLB is also an anti-Quranic group. On 3 September 2015, its spokesman Maulana Abdul Raheem Qureshi said: "Though as per Quran and Hadith, 'triple talaq' is a crime, but once said the process would be considered complete and cannot be changed." Hadiths (plural of Hadith), are sayings and deeds of Prophet Muhammad. Since the AIMPLB admits that the triple talaq is a crime as per the Quran, it must not oppose any move that seeks to declare triple talaq illegal. However, the AIMPLB and other Islamic groups are defending the arbitrary practice of triple talaq despite knowing that it is a crime under the Quran.
The AIMPLB misled the Supreme Court on Monday by submitting: "If such casual denunciation of the verses of the holy book is permitted, then soon Islam would cease to exist. Though triple talaq in one sitting is an unusual mode of divorce in Islam, it cannot be declared to be invalid in the light of the direct verses of Holy Quran and categorical command of the Messenger of Allah." As per the current law, the only way for Muslims to divorce is the practice of triple talaq.
The Quran has a chapter devoted to this subject in the surah called Al-Talaq, which comprises of 12 verses. In these verses, the Quran establishes a procedure for divorce, providing for three talaqs, each delivered at an interval of a month. The Quran does not approve of the instant triple talaq, which is arbitrary and is exercised at the whims of a Muslim husband and many times uttered in a fit of anger. Under the Quranic practice, a talaq must be uttered in the presence of two witnesses. So, the Quran removes the arbitrariness of triple talaq.
If the Supreme Court declares the practice of instant triple talaq, which is given in one sitting, as illegal, the apex court's decision will still be as per the Quran. It can be said with certainty that the position adopted by the AIMPLB before the Supreme Court is, therefore, anti-Quranic and anti-Constitutional. Under the existing law, a Muslim woman can approach the courts to seek, not to give, divorce; alternatively, she can resort to the informal practice of seeking divorce through an Islamic cleric. However, a Muslim husband cannot go to the court to give divorce; the only option open before him is to deliver triple talaq either through Islamic clerics or through informal means such as a letter, phone call, or WhatsApp messages.
The current practice of instant triple talaq cannot be acceptable as per the modern standards of morality. It has emerged as a menace to the society in India. It is also violative of the Constitution's Article 21 which guarantees to Indian citizens the protection of life and personal liberty, which includes human dignity. Currently, it is the dignity of Muslim women that is being challenged by Islamic groups like the AIMPLB. The Muslim women who are divorced via triple talaq, are increasingly approaching the Supreme Court to uphold their right to dignity and liberty, which must be supported by everyone.
However, ending the practice of triple talaq will not end the miseries of Muslim women, who need to send their daughters to study and permit them to work. Even the number of talaqs, whether triple or not, should be meaningless if the same is uttered in the presence of a judge at three monthly intervals to complete the Quranic procedure. To remove its arbitrariness and at the minimum, the Supreme Court of India must rule that all Muslim divorces must be given in a court, not in parallel Shariah courts run by numerous Islamist groups such as the Bharatiya Muslim Mahila Andolan, AIMPLB, Jamaat-e-Islami Hind and Jamiat Ulema-e-Hind.
The author, a former BBC journalist, is a contributing editor at Firstpost and executive director of the Open Source Institute, New Delhi. He tweets @tufailelif
Updated Date: Mar 28, 2017 18:45 PM