India's Home Minister Rajnath Sing, Finance Minister Arun Jaitley, Defence Minister Manohor Parrikar and Women and Children Development Minister Maneka Gandhi held a meeting in New Delhi on September 15 on the issue of banning 'triple talaq'. In the high-level ministerial meeting it was decided that the Indian central government will give its support to ban 'triple talaq'. Though 'triple talaq' is honoured by Islamic courts, the non-governmental organisations (NGOs) and the advocacy rights groups in the Muslim world have been waging an uphill battle asking the governments around the world not to recognise 'triple talaq' as has been the case in the moderate countries.
According to Bharatiya Muslim Mahila Andolon (BMMA), a women's rights advocacy group, 54 per cent of divorced Indian Muslim women were divorced through 'triple talaq'. In a lot of Muslim countries including India, 'talaq' is allowed under the Muslim Personal Law (Sharia). Just by uttering the word 'talaq', which means 'I divorce you', three times, a Muslim man can divorce his wife for any reason and throw her out of the marital home. But a wife has no right to divorce her husband without his permission.
This past June, an online petition spearheaded by BMMA against 'triple talaq' was signed by 50,000 Muslim men and women across India. For the last six years, BMMA has been working with hundreds of women who were suffering as a result of 'triple talaq'. A recent study conducted by BMMA has found that 92 per cent of Muslim women in India supported an end of the practice of 'triple talaq'.
Two divorced Muslim women took the issue to the Supreme Court and in an appeal, asked for a ban on 'triple talaq' and polygamy by challenging the constitutional validity of such practices. The BMMA recommended that in case of a divorce or separation, it should be mandatory that a husband must pay alimony to the divorced wife and bear all expenses of their children. They also asked for a ban on fatwa (religious decree) on women, and complete ban on oral, unilateral and 'triple talaq'. They demanded that justice should be accessible to all women, especially poor women so that they can reap benefits without delay.
Since the practice of 'triple talaq' has been outlawed by 22 Muslim countries, the central government in India has decided to put an end to this controversial practice by letting the Supreme Court know its decision. Earlier, on September 05, the Supreme Court Chief Justice T S Thakur sent a notice to the central government and gave it four weeks' time to respond detailing the government's position on 'triple talaq' and the plight of the Muslim women in India.
Meanwhile, the All-India Muslim Personal Law Board in its counter-affidavit to SC has said that it would be a step taken against the Qur'an and Islamic ways as it is not a matter of 'legislative policy.' The board also said practices provided by Muslim Personal Law on issues of marriage, divorce and maintenance were based on holy scripture (al-Quran) and "courts cannot supplant its own interpretations over the text of scriptures". It had warned the SC not to interfere. Consequently, SC became cautious and pushed the matter to the central government.
According to The Times of India, the response to the court will be drafted by the law ministry, and will recommend a law to ban unilateral 'triple talaq'.
In accordance with the international practices, the Indian government side will most likely argue that many Islamic countries like Bangladesh, Pakistan, Iraq and Saudi Arabia has either banned or restricted the practice of 'triple talaq'. The countries like Turkey, Malaysia and Cyprus have adopted secular family laws and do not recognise a divorce that is not granted by a court.
Sharia law makes it clear that in matters of personal disputes, state should not interfere; religious bodies will instead pass judgements. Sometimes Sharia law as practised in India is contradictory to the Quranic citing. The Quranic version of a divorce is not oftentimes followed by the Muslim community. They go by their own understanding of the Sharia law. Some Islamic scholars argue that the practice of 'triple talaq' goes back to the time of Prophet Muhammad (PBUH). The practice survived since then among the Sunni Muslims.
Others counter-argue that it is not right to do this in one sitting and there should be a period of time between the 'three strikes.' The consensus reached by earlier Sunni scholars over the validity of 'triple talaq' was broken by the scholars of Hanbali School of Thought who pronounced that three 'talaqs' in one sitting is considered one.
For a Muslim husband to divorce his wife, 'talaq' cannot be given in one sitting. A 'talaq' has to be pronounced in three sittings. Under the Islamic Law, divorce is an elaborate procedure which includes a mandatory period of arbitration preceded by efforts of reconciliation. It should be given at least three months by which time a couple should reflect on their differences and see if they can come to a compromise to save the marriage.
During that period, a woman has the right to live in the residence (but cannot cohabit) and the husband cannot throw her out in the cold. Women from affluent backgrounds usually obtain a court order to secure her stay in the house and child support. Because of ignorance and lack of moral/legal support for her, a woman from a poor background usually ends up in the street.
A 'talaq' must be given in front of witnesses and not through phone calls, emails and SMS. A couple of months ago, it was widely reported that Pakistan's great cricketer-turned politician, Imran Khan, ended his ten-month marriage to his wife Reham by texting the word 'talaq' three times. That was followed by an email. 'Triple talaq' is banned in Pakistan but some provinces of Pakistan have not outlawed it explicitly.
Even some progressive circles are under the presumption that a Muslim man can divorce his wife in an instant by saying 'talaq' three times. It is assumed that after that event, a woman has no legal rights to any property and the house where she had lived post-marriage. A lot of the 'talaqs' are given in anger during an argument. In most 'triple talaq' cases, the question of alimony (maintenance) or the rights of women and children under her protection are not clearly defined. The women are unaware of the various legal strategies that they can use when their husbands give them 'talaq'.
In case of irreconcilable differences which cannot be resolved, a divorce can be granted. Muslim law is fair to women, and under the Muslim Women's Act, women who accept 'talaqnama' are entitled to lump sum maintenance. Before pronouncing 'talaq', the husband must fulfil his obligations by returning the wife her 'mehr' (amount of money or gifts a Muslim husband is responsible for paying upon marriage,) and provide her for the 'iddat' period (three months.) The ex-husband must make sure that with the amount given after the divorce, she can survive and maintain a lifestyle that she is accustomed to.
'Triple talaq' creates a power dynamic in a marriage which is greatly in favour of the man and oppressive to the woman,' says Indo-Canadian filmmaker Shazia Javed, who is at present working on a documentary to focus on the issue, called A 3 Seconds Divorce.
The co-founders of BMMA, Dr. Noorjehan Saifia-Niaz, and Zakia Soman think that a ban on 'triple talaq' won't solve the problem, and the only way to ensure it is through complete abolishment of this unilateral practice. Noorjehan added, 'Freedom of religion cannot be allowed to translate into superior rights for men over women. Our gender-just demands are not only constitutional but also based on teachings from the Quran.'
Though a divorced woman has to go to court to secure her rights, a ban on 'triple talaq' will change the course of her life. It should be greatly appreciated that the two Indian Muslim women demanded their rights from the courts to scrap the practice of 'triple talaq'. Since then, women in large numbers have come out to show their support. India is finally ready to codify Muslim family law by putting a ban on 'triple talaq' and hopefully abolish this practice altogether.
zeenat.khan@gmail1983.com
The struggle to ban \'triple talaq\' in India reaches a crucial stage
Zeenat Khan from Maryland, USA | Published: September 18, 2016 00:00:00 | Updated: February 01, 2018 00:00:00
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