On Making Triple Talaaq Unconstitutional

On Making Triple Talaaq Unconstitutional

By Advocate Malik Aamir

Considering “Triple Talaq” as unconstitutional is an affront to both Muslims and the  Muslim Personal Law. But there is a more prosaic point involved too: If Muslim women themselves do not want any changes in triple talaq and Shariah, why is the government unnecessarily interfering? In India, there is a separate set of laws governing marriage, divorce and inheritance that allows the Muslim community to regulate these matters through their own civil code. In the secular format of governance, every religion is at liberty to be practiced by its adherents. Therefore, there cannot be any constraints on the fundamentals and principles of any religion.  The same holds true in terms of Muslim Personal Law in India. Moreover, as opposed to what being is trotted out by the media, these days, Islam grants rights to women that are enshrined in the Holy Quran.

As the Holy Book says: “O mankind, We have created you from a male and a female and have made you into nations and tribes for you to know one another.  Truly, the noblest of you with God is the most pious. Truly, God is All-Knowing, All-Aware” (Quran, 49:13).  God created human beings as equals who are to be distinguished from each other only on the basis of their faith and piety.   This is validated by the sayings (Hadeeth) of Prophet Muhammad(SAW), who  said: “O people!  Your God is one and your forefather (Adam) is one.  An Arab is not better than a non-Arab and a non-Arab is not better than an Arab, and a red (i.e. white tinged with red) person is not better than a black person and a black person is not better than a red person”. These verses from the Holy Quran and then the Hadeeth illustrate that the fundamental equality of human beings inheres in Islam. This includes both men and women.

Consider the foundational narrative of the Cosmos and the Earth in the Holy Quran: nowhere in the Holy Book,  do we find any trace or  any notion of blaming Eve for the first mistake or for eating from the forbidden tree. The story of Adam and Eve is narrated in 7:19-27. The Holy Quran and it speaks about both of them disobeying, and importantly both discovered the consequences of their disobedience; both of them seek repentance and both of them are forgiven. Nowhere in the Holy Quran is found any verse where the woman is to be blamed for the fall of man. There is, in other words, no concept of the “original sin” in Islam.

Islam also accords women economic rights. In this domain, we have to remember that in Europe until the 19th century, women did not have the right to own their own property. When they were married, either the property would transfer to the husband or she would not be able to dispense of it without permission of her husband. In Britain, perhaps the first country to give women some property rights, laws were passed in the 1860’s known as “Married Women Property Act”. However, Islam granted property rights to women more than 1300 years earlier. The Holy Quran is quite explicit regarding this:”Whatever men earn, they have a share of that and whatever women earn, they have a share in that” (4:32).
In terms of employment and work, there is no restriction in Islamic law that says a woman cannot work nor have a profession or that her only place is in the home. In fact, by definition, in a truly Islamic society, there must be female physicians, female nurses, and female teachers and so on. Moreover, if  a woman chooses to work, or if she’s married with the consent of her husband, she’s entitled to equal pay, not for equal work, but for work of equal worth.
When it comes to financial security, Islamic law is more slanted,  in many respects, towards women. For instance, at the time of marriage, it is the duty of the husband, not the bride’s family, to pay for financial security of the woman. The man is supposed to pay for what the Holy Quran calls a marital gift which is an exclusive right of a woman.  Similarly, if a woman happens to own any property prior to marriage, she retains that property after marriage: It remains under her control. Also, in most Muslim countries, the woman keeps her own last name, and thus her own identity.

As far as treatment of daughters is concerned, Prophet Muhammad (SAW) said, “Anyone who has two daughters, and did not bury them, did not insult them and brought them up properly, he and I will be together”.  This admonition by the Prophet (SAW) is consequential and important given that female infanticide was prevalent in the then Arabia.”

Islam then trough the Holy Quran and the Hadeeth gives equal rights to man and women in almost every domain of life. And Islam did this when rest of the world was backward and in a state of regress. This is reflected in the following verse:

“Among His Signs is this, that he created for you mates from among yourselves, that they may dwell in tranquility with them, and He has put love and mercy between your (hearts): Verily in that are signs for those who reflect” ( 30:21).

Coming to the introductory theme of this essay, I will posit that Islam, the laws that flow from our religion do not need to be tinkered and interfered with. Islam anticipated issues pertaining to the humans and the human condition centuries ago and its prescriptions for/on social order and gender equality still hold and will continue to do so.

The author practices law at the  Lower Court, Srinagar, and can be reached at:amiramirmalik@yahoo.com

One Response to "On Making Triple Talaaq Unconstitutional"

  1. G. Din   February 22, 2017 at 1:47 am

    Unadulterated hogwash!