(In a landmark judgement, a Constitution Bench of the Supreme Court, on 22 August, declared the practice of Triple Talaq unconstitutional. A five-judge bench of Chief Justice of India JS Khehar, Kurian Joseph, Rohinton Fali Norman, Uday Umesh Lalit and Abdul Nazeer struck down the practice on the grounds that it goes against the Shariat and the basic tenets of the Quran. In light of the judgement, The Quint is reposting this interview with noted jurist Tahir Mahmood in a bid to better understand the arguments presented in court by those in favour of retaining the practice.)
The case against triple talaq seems pretty straightforward. A distorted interpretation of the divorce law is being used to grant unilateral divorces to Indian Muslim women through bizarre means like WhatsApp messages and even newspaper ads. Countries like Pakistan, Bangladesh and Turkey are among 21 Islamic nations that have already banned triple talaq.
So why the resistance to what should be a done deal in India? Why is the All India Muslim Personal Law Board against reforming a 1,500-year-old law?
The Quint spoke to noted Muslim jurist and former chairman of the National Commission for Minorities, Tahir Mahmood, on the obscurity of the debate surrounding triple talaq. Here are excerpts from the conversation.
You’ve maintained that the Muslim personal law was far ahead of its time when it was conceived. Why has it failed to evolve and keep up with the times?
If we go strictly by the teachings of the Holy Quran or by the teachings of the Prophet, it is one of the best laws that humankind can have. This law is about 1,500 years old. It is a wonder that we had such a progressive law at that time.
In 7th century AD, Prophet Mohammad gave inheritance rights to women. We did not have equal rights for men and women, but the law provided for at least half the share to be given to the wife, the daughter, granddaughter, the mother, or even distant relatives. This would’ve been inconceivable anywhere else in the 7th century. That was one progressive aspect of it.
But the law as written in the holy book of Quran is very different from what is in practice. The world has no time to look at what the Quran says. Muslims all over the world go by what the community dictates, not by Quranic text.
Why is there such resistance to abolishing triple talaq?
The practice of triple talaq is most un-Islamic, most un-Quranic. Even if it’s single talaq, the result will be the same. What is being objected to, in the name of triple divorce, is the practice of Muslim men unilaterally divorcing their wives without following the procedure laid down in the Quran.
Triple divorce is a misnomer. The problem is unilateral divorce. The divorce laws are very comprehensive, but no one, including the maulavis, are following the religious text. The law is not just being implemented wrong, its interpretation is being completely distorted. The judiciary is the only means to correct this. There is no other way.
You are ruling out a political solution, but if we were to watch any news channel or TV debate, the current political dispensation seems to be offering a Uniform Civil Code (UCC) as a solution to triple talaq.
First of all, let me tackle the point on TV debates. I just don’t understand why there should be any TV debates about such a serious issue. I feel very irritated at the kind of people they selectively call for these TV debates. Is triple talaq a Hindu-Muslim issue, a dharam yudh fought out between a Hindu pandit and a Muslim mullah?
What TV channels are doing these days, whether it is the issue of triple talaq or Vande Mataram or cow slaughter, is very dangerous.
As for the UCC, there is a very, very genuine fear around it. Where is the draft for this UCC that is being talked about? Ask all the defenders of the UCC, and they will say it should be based on Hindu law. Therefore, all minorities are in the fear that the UCC is a euphemism for the Hindu law to be enforced on non-Hindus.
You must understand that it’s not just the Muslims who have a personal law. The only difference is that the Muslim personal law has not been codified or reformed. Those talking about Article 44 need to be aware that a minority community cannot be made to give up its personal law and accept the personal law of the majority community in the name of a UCC.
Therefore, there is a fear among Muslim theologists that allowing a reform to triple talaq or any other aspect of Muslim law will pave the way for UCC. This fear is not unfounded.
My firm opinion is that we have to reform Muslim personal law and give relief to the suffering women – even the present government and current Prime Minister keep talking about their Muslim sisters. But they are not worried about the Muslim brothers, they can be killed by cow protectors, but Muslim sisters must be protected from triple talaq.
If they really mean business, they have to stop talking about UCC. They should focus only on the reform of Muslim law. And the job should be left to judges, lawyers and professors of law. They will do it. Why should the politicians be bothered about it?
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