Triple talaq is trickier

Triple talaq is trickier
By Tariq Jameel
The ‘Burden of Triple Talaq’, a piece, authored by Habeel Iqbal, was carried in Kashmir Reader on May 22nd, 2016. The piece touched upon the very contentious issue of Triple Talaq, a practice which remains largely in force among Muslims in India and which has been a topic of raging debate for many years now. The piece, though well intentioned, made some overgeneralisations and missed a few critical issues.
The author says that “Any Magistrate Court, in which proceedings for maintenance of women and children are taken up, can give us a good idea about the miseries these women are made to face. Many a time, men are seen divorcing their partner just to avoid paying the paltry sum of a maintenance amount claimed by the wife.’’ This passage gives an impression that the miseries Muslim women face for getting maintenance for themselves and their children are a fallout of Triple Talaq. Even if Triple Talaq were made invalid, divorced Muslim women would still struggle to get maintenance for themselves and their children. This is not an argument in support of continuing the practice of Triple Talaq, but making a clear distinction between Talaq (Triple or otherwise) and a Muslim woman’s immense difficulty in getting maintenance. Divorce and maintenance are two separate issues and, in both cases, Muslim women in India remain on the receiving end. It is no wonder then, that an increasing number of Muslim women and Women’s organisations in India are now trying to overturn the status quo and get a fair and more just deal for themselves.
Talaq is a part of Muslim personal Law and it is not the only issue in Indian Muslim Personal Law that needs to be reformed and fine-tuned to make it more just and fair towards Muslim women. The Shariat Act, 1937, was enacted during British Rule for the Muslim community in India, which declared that Muslims prefer to be governed by their own Shariah – the law of Islam as interpreted by the Muslim Ulema (theologians) and legal experts (Fuqaha). So, this law would apply to all Muslims in family matters like inheritance, marriage, divorce, maintenance, adoption etc. Once having enacted the law, the definition of Shariah itself remained vague. This law largely remains undefined in terms of how it deals with the practical aspects of peoples’ lives it governs. The root of the problem in Indian Muslim Personal Law lies in the fact that there isn’t codification on the thorny areas within its ambit, despite it being in place for well over seventy years. It not only suffers from ossification but also from a lack of uniformity across the plethora of Islamic schools of jurisprudence and is, hence, discriminatory between the people it governs. It delivers different verdicts for the same problem, depending on the school of thought or many a time even the personal whims of the Qazi.
The author goes on to say that “However, owing to the convenience of men, the most frequently-used form of divorce in this part of the world is the Triple Talaq, wherein the husband, either orally or in written form, repeats the words ‘talaq’ three times to end the marriage instantaneously.’’ This argument gives an impression that the practice of Triple Talaq is in existence merely owing to the convenience of Muslim men. Many people, including the author, though well intentioned, term this practice as ‘’un-Islamic.” This is a weak argument given that the practice of Triple Talaq is not a figment of an individual cleric’s, scholar’s or even a common Muslim man’s imagination who wants to punish his wife. The fact remains that this practice has been in effect almost since the inception of Islam and has been incorporated in all the four major schools of Sunni jurisprudence. A vast majority of Muslims worldwide follow one of these four schools. The Shia and Salafi and Ahl-e-Hadith scholars do not consider this as a valid practice.
Even though the practice has been incorporated in all the four major Sunni schools, there are many Muslim countries where the practice of Triple Talaq is not allowed. In many of these countries, reforms have been made across the board relating to Muslim Personal Law, which includes provisions relating to divorce as well. In the Mudawana Family Code in Morocco, for example, polygamy is acceptable only in rare cases and only with the permission of a judge and the man’s first wife. The country has also raised the age of marriage for girls and treats wives as equal partners in marriage and family matters. These changes have been made in the face of stiff resistance from the clergy and Islamist political parties.
The author has cited two recent case studies from Kashmir. In the first one, which was decided in 2012, the judge held that the husband does not have absolute and unqualified power to divorce his wife. But in another case in 2014, a different judge almost completely reversed this contention and stated that the court does not have the competence to interpret Quranic verses and it falls within the authority of Muslim scholars. This brings to the fore the long tussle between the Muslim clergy, legislature and judiciary about the powers in framing various laws.  Since the practice of Triple Talaq is considered valid in all the major schools of Sunni jurisprudence, it would be naive to expect scholars and clerics belonging to these schools to overturn or reform a law that has been in practice for about 13 centuries now. The consensus among all these schools is that this is a valid practice and should remain in force. It is highly unlikely that Muslim scholars and clerics will from a new consensus which will invalidate this practice.
It will be in place here to mention that in the early 20th century, in North India, a number of Muslim women had apostatised as a way of ending their marriages. What necessitated this extreme measure among these Muslim women was the fact that in British India, there were no Muslim Judges (Qadi), who alone, according to various Ulema could terminate a marriage if a woman so desired. The Hanafi law also stipulated that in case of a woman whose husband was missing, the wife had to wait for him for the natural duration of his life. But there was another provision that the Hanafi law had retained: the renunciation of Islam by the spouse immediately dissolved a marriage. So these women took recourse to this extreme step to overcome such difficulties. There seemed to be enough knowledge of this provision for women to resort to apostasy as a way of ending their marriages.
   Noted Deobandi scholar Ashraf Ali Thanwi took a lead in responding to this crisis and published a book in 1933 arguing for overturning this practice among the Hanafi school. He communicated with jurists belonging to the Maliki school of law seeking their opinion on this issue. On the basis of opinions from these Maliki scholars, Thanwi argued that the marriage of a Muslim woman whose husband had disappeared could be ended four years after his disappearance. It was also stipulated that apostasy does not terminate the marriage of a Muslim couple. No doubt, these were landmark and important rulings, but were brought in after taking the views of another school of jurisprudence (which also believes in Taqlid), into consideration. It will be naive to believe that any such landmark ruling will be brought in by Muslim scholars in India, since all the four major schools consider Triple Talaq a valid practice.
Fighting the practice of Triple Talaq is a long-drawn battle for Muslim women in India, who continue to live under its fearful shadow. It concerns the lives of millions of women and it goes without saying that this practice needs to be done away with, and instead a more egalitarian practice, which treats both men and women in a marriage in a fair and just way, needs to be brought in. The need of the hour is to build more public opinion against this practice and it is perhaps finally the courts that will have to come to the rescue of Muslim women in India in overturning this practice. Bodies like AIMPLB will do their best to maintain status quo, but despite such stiff resistance, it is a fight worth fighting.
—The writer is an investment professional based in Bangalore