The inevitable has happened. The Supreme Court, in a landmark 3:2 judgement, has declared the practice of instant triple talaq – or Talaq-e-bidat (innovation) – unconstitutional. This landmark judgment has long-term legal and social implications.
I am not a religious or legal authority on the subject, but in my view as an educated Muslim, it is the best development for Muslim women in India, and the community in general. The unbridled, unilateral power of Muslim men to give absolute divorce to their wives at the drop of a hat has been laid to rest. The way it was being abused for decades by men, casually or imperiously announcing triple talaq on phone, SMS, WhatsApp, etc will now come to a halt.
Muslim Personal Law Board Loses Its Moral and Legal Authority
The biggest loser is the All India Muslim Personal Law Board (AIMPLB) which has lost its pre-eminent status and the moral/legal authority to decide a case which necessarily forms part of the Sharia. It is not without consequences that the court has stepped in to decide what essentially is the domain of Islamic clergy. The matter has been before the AIMPLB, which had not been able to resolve the issue.
My concern about the issue goes back almost three decades when the matter came up for adjudication by the AIMPLB at its Jaipur session. The great and revered Maulana Abul Hasan Ali Nadvi (popularly known as Ali Mian), was the chairman, and Maulana Abdul Karim Parikh the vice chairman. Both were scholars of great eminence, known for their liberal views.
I felt extremely assured that under them the board would give a verdict declaring the triple talaq un-Islamic. To my surprise, the board decided that triple talaq was “sinful” but “legal”. When I asked a senior board member why they let go a great opportunity to put to rest a long-pending controversial issue, his answer still rings in my ears, “If we had declared triple talaq illegal, the board would have split.” Ironically, the board has already split many times over since then.
The present case was the last opportunity before the Board to pre-empt court intervention if, seeing the writing on the wall, it had itself declared instant triple talaq illegal which would have made the writ infructuous. This would have enhanced their prestige and moral authority to a great height. They not only missed the bus, but have allowed the creation of a disquieting precedent of the court deciding what constitutes Sharia instead of the Islamic scholars. Earlier, their opposition to the Shah Bano judgment, and insistence on a law to neutralise the judgement, led to a massive backlash and serious consequences, from which the community has not recovered till today.
What puzzles me is the insistence of the AIMPLB to protect the despicable practice of triple talaq against all odds when the Ulama of 22 Muslims countries (including Pakistan, Bangladesh, Egypt, Jordan, UAE and Indonesia) have abolished it long ago without any extraneous stimulus. Are the Ulama of these countries lesser authorities in Islamic jurisprudence?
The Merits of the Issue
Instant triple talaq, in my humble opinion, is essentially against the teachings of the Quran. The Quran very clearly and unambiguously prescribes the procedure of the talaq, making it conditional to adequate reconciliation efforts to save the marriage. This meant a husband who pronounced talaq on his wife in anger or drunkenness could reconsider and repent his hasty action and restore the marriage. This he could do twice. But if he did it a third time, he would lose any further opportunity to reconcile and take his wife back into marriage.
Several questions are being raised. Some people think, erroneously, that talaq itself has been altogether banned. No. Not at all. It is only the instant triple talaq that has been banned. Normal talaq on three separate occasions, as prescribed in the Quran, has been left unaffected. Another question is whether the petitioner’s divorce stands revoked. My presumption is that it will now be treated as a single, revocable talaq.
In the recent television debates, I was surprised to hear some experts say that Quran is not the only part of Sharia. There are also Hadees (sayings or actions of the Prophet), Ijma (consensus) and Qayas (analogical reasoning). But can any of the last three override the Quran where its injunction is absolutely clear, as in the case of talaq procedure? A pertinent analogy is the Indian jurisprudence, the four pillars of which are the Constitution, the Acts, the Rules and the Executive orders. Can any of the last three override the Constitution? No way.
Another question is whether the court has asked the parliament to make a law within six months. No, it has not. Although that was a part of the CJI’s minority judgement, the majority view will be treated as the SC judgement which has clearly declared instant triple talaq as unconstitutional. The majority held that the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s.
The court held that it is clear this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. This has spared the government the need to make a law – a very complex and sensitive hot potato. In fact, the law minister has already clarified that there is no need for enactment of any law as the SC judgement has already given a conclusive verdict.
It's pertinent to mention that even in India this is not the first time that the court has ruled against instant triple talaq. Shamim Ara vs UP (2002) was the precursor of the recent judgment. In 2008, Justice Badar Ahmad of Delhi High Court ruled that triple talaq in India should be deemed as a single revocable talaq. Again in Ziauddin Ahmad versus Anwara Begum, the Gauhati High Court ruled that a talaq must be for a reasonable cause and must be preceded by attempts at reconciliation. SC has put its final stamp on the series of judgements.
In the end, to be fair to the AIMPLB, in their affidavit to the SC, they had mentioned a number of steps they are considering to make the laws just and equitable for women through a model nikah nama. I hope they would go ahead with those measures without further delay. Additionally, if they take up the cause of education among Muslims and gender equality – fundamental but neglected principles of Islam – they would do the community a world of good. That's the last hope for them to retain their crumbling moral authority.
(The writer is former Chief Election Commissioner of India. The views expressed in the article are personal)
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