On Thursday the 8th of December, the Allahabad High Court observed, "Triple talaq is unconstitutional, it violates the rights of Muslim women. No personal law board is above the Constitution." This observation is one in a series of recent developments that has brought back to the forefront the debate over the incompatibility of triple talaq with the liberal democratic tradition of Indian society.
It is imperative we seek an explanation to the Muslim community's opposition, which must move beyond the churlish notion that Muslim men hate women.
This has been a recurring debate, with no real progress, since the distressing events around the Shah Bano case in 1985. Shah Bano was a woman, a Muslim, and an Indian, and she wanted India to understand all of her. The women's rights movement failed to acknowledge her complex social identity; for the Indian Muslim woman is not just an atomised individual, she is a member of a community too. The issue of women's rights and minority rights, whether desirable or not, are linked in this instance and will have to be dealt with simultaneously.
Islam isn't united over triple talaq
The Prophetic hadith, "Of all things permitted in the eyes of Allah, divorce is the most abhorrent" represents the sanctity that Islam places upon the institution of marriage. The Quran prescribes divorce as a last resort to annul the sacred bond of marriage, only after all reconciliatory measures have failed. It is, therefore, not surprising that the Shariat Law gives as many as seven different procedures to dissolve a marriage. Of the seven, while the husband has an exclusive right to initiate divorce under three procedures (talaq, ila, zihar), the wife too can initiate a divorce under two procedures (talaaq-tafaweez, lian); and further they can mutually agree to dissolve it under two procedures (khula and mubarat).
Talaq initiated by the husband can either be given in the form of talaq-ul-sunnat—a practice prevalent during the time of the Prophet himself—or talaq-ul-biddat, innovated by the second caliph Umar ibn Al-Khattab. Talaq-ul-sunnat, either by one pronouncement (ahsan) or three pronouncements (hasan), has to observe an iddat period (a waiting time of three menstrual cycles).The provision of an iddat period is to simultaneously determine whether the wife is pregnant, and offer time for deliberation; for if they choose to reconcile, the divorce can be revoked within this period.
Talaq-ul-biddat, although not prevalent during the lifetime of the Prophet, can be given by the husband making three pronouncements in one sitting. With no provision for an iddat period under talaq-ul-biddat, the divorce is rendered irrevocable with the three-time utterance of "talaq". If they wish to reconcile, the wife is required to have an intervening marriage (and consummate it) before returning to her divorced husband.
Talaq-ul-biddat, known as triple talaq in popular parlance, is so demeaning in its extent that the Muslim community did not need outside intervention to question its validity within Islam. It is through an 800-year-old tradition of ijtihad—a critical and independent reinterpretation of Islam—that Muslims have been disagreeing amongst themselves on the question triple talaq.
Personal laws are what define the identity of any community... if [the Muslim community does accept the UCC], it would lose the character that distinguishes it from the majority.
First, a majority of Sunni jurists (Maliki, Hanbali and Shaif'i) argue that three pronouncements in one sitting constitute three separate acts of talaq, and such a divorce is therefore valid. Second, Hanafi jurists (which are the majority in India) argue that triple talaq in one sitting finds no support in the Quran, and therefore it is to be treated as a single pronouncement, not three. Third, the Shia School deny the validity of triple talaq entirely.
India's journey from Islamic law to Muslim law
European colonisation of Muslim-majority parts of the globe created hybrid legal systems comprising indigenous laws upon which state-based legal systems were superimposed. With the advent of nation states, Islamic religious law began to be enacted into state law to adequately govern Muslims. This evolution influenced the development of multiple interpretations of the Sharia and resulted in widening the gap between what is stated in the textual source and how it is applied.
The Muslim Personal Law developed in India under the British Raj, which mandated the courts to govern the Muslims by consulting Hidayah (guidance) written by a Hanafi scholar (Mirghayani) and in further consultation with renowned maulavis. The judgements delivered by higher courts became precedents for subsequent cases and eventually resulted in developing a whole corpus of law to govern Muslims in India.
In 1937, The Muslim Personal Law (Shariat) Application Act was passed with the aim of formulating an Islamic law code for Indian Muslims. The Shariat Application Act governs aspects of Muslim social life such as marriage, divorce, inheritance and familial issues, without delineating any laws. The Act, instead, mandates religious authorities to govern by passing declarations based on their interpretations of the Quran and the Hadith; and further prohibits the State from interfering in religious matters. Following the Shariat Act, a few other legislations have been passed to codify certain aspects of Muslim Law such as the Dissolution of Muslim Marriages Act 1939 and the infamous Muslim Women (Protection of Rights) Act 1986.
The triple talaq question in India
India, out of all other nations, perhaps has the most difficult task in dealing with the question of triple talaq. Firstly, by virtue of being a liberal democracy, India has committed itself to the universal principles of justice, liberty and equality for all its citizens.
[A] UCC would definitely be defined by majoritarian values, and to strong-arm the minority into a majority mould would be against the secular nature [of India].
Secondly, India is the only country where the population of the Muslim community is so large (172 million—the second largest Muslim population in the world), and yet a minority. It, therefore, has to be sensitive to the Muslim community without having a Muslim majority character like that of a secular Turkey or an Islamic Iran. India's inclusive nature is by virtue of its constitutional secularism, which guarantees the religious minorities the freedom to practice their religion without State interference. The combination of this constitutional and demographic character of India puts to the forefront a conflict: between its commitment to universal principles of a liberal democracy and its commitment to Indian secularism. In the instance of triple talaq, this conflict precipitates into a binary of women's rights vs. minority rights.
Judicial activism to the rescue of Muslim women?
The Indian Muslim woman, like Shah Bano, embodies a complex social identity by virtue of being a simultaneous member of different social groups—the Indian State, the Muslim community, and a universal womanhood. In order to protect the interrelationship between her multiple social identities, the Indian Muslim woman has repeatedly turned to the Indian State for relief. The State has failed to protect her, foremost as a human being, and as an Indian citizen too. Her dignity, her right to equality with men, and other women, and her freedom to practice her (interpretation of) religion is the colossal cost India has chosen to silently pay for the sake of maintaining its fragile communal peace.
Where the State has shown reluctance in institutionalising reform, the judiciary has shown eagerness to set precedent, although it might not always have the desired impact. In Marium v. Md. Shamsi Alam, the court by invalidating triple talaq, held the marriage as still subsisting and gave the husband the right to take his wife back (without her consent) within the iddat period. In Rahmat Ullah v. State of UP, the court held a 25-year-old divorce as judicially invalid to seize the land of Khatoon Nisa, who could not own land in her name as long as she was married (Imposition of Ceiling on Land Holding Act, 1972). Therefore, indiscriminate judicial activism cannot be a substitute for institutionalised reform for multiple reasons: first, hard cases make bad laws; second, the secular courts lack the legitimacy to interpret the Islamic validity of triple talaq; third, if left to the discretion of the judges to determine the ambiguity within the personal law, the judge might not always intervene in favour of a rights-base construction of the law.
Why does the Muslim community want to retain triple talaq?
The biggest impediment in providing any institutionalised relief to the Muslim woman has been the community she belongs to. It is, therefore, imperative we seek an explanation to their opposition, which must move beyond the churlish notion that Muslim men hate women.
How should India reconcile its existential need to remain secular and fulfil its moral and legal duty to assuage the suffering of Muslim women?
The Muslim minority, which constitutes close to one-fifth of the population, remains socially marginalised, economically backward, politically underrepresented, and deeply suspicious of the Hindu majority. The memories of partition and the majoritarian narratives have prevented their full integration into Indian society. The single source of their security comes from the constitutionally guaranteed freedom to practice their religion.
Personal laws are indeed what define the identity of any community, distinguishing it from another through their traditions, customs and rituals. It is, therefore, not surprising that the Muslim community has long been fending off any outside interference in their personal laws or the imposition of the Uniform Civil Code (UCC)—for if it does accept it, it would lose the character that distinguishes it from the majority. In the absence of personal laws, a UCC would most definitely be defined by majoritarian values, and to strong-arm the minority into a majority mould would indeed be against the secular nature that has held India together. India will neither be fully secure nor achieve its full economic potential as long as a fifth of its population lives under constant fear of cultural and religious aggression.
Is there a way forward?
How should India, therefore, reconcile its existential need to remain secular and fulfil its moral and legal duty to assuage the suffering of Muslim women?
India must rid its Muslims of the fear of reform from without, in order for them to reform from within.
The plurality within Islamic jurisprudence over the issue of triple talaq and the ongoing deliberation through ijtihad within the community is testimony that Indian Muslims, like Muslims elsewhere in the world, are capable of reforming from within.
India must rid its Muslims of the fear of reform from without, in order for them to reform from within. In this regard, the only step that the State can and must take is to compel the community, especially the Ulema to codify what is Islamic. For unless they codify their personal law, neither will the community proceed towards reform—free from fear of the majority—nor will the Muslim woman be freed from the discretion of the judges and the Ulemas. A bottom-up reform from within the community through ijtihad would truly transform the social position of the Muslim woman within her society, rather than a top-down reform from the State which would remain symbolic and limited. The inevitability of gradualness, unfortunately, will be the bitter pill we all have to swallow!