Rule by ordinance has always been the weapon of choice for governments that are unable to get their way and need to circumvent democratic institutions. An ordinance criminalising triple talaq was recently passed by the Union Cabinet.
This form of divorce not only places the prerogative of filing for divorce on men, but indeed is seen to be binding if, in one sitting, the word talaq (divorce) is uttered three times by a man to his wife.
There have been some (tragically) comic situations where men have tried to divorce their spouses through SMS, email and telephone calls, but as with all such things, they have been utterly blown out of proportion.
The practice of triple talaq however, continues to be a political hot potato with various parties taking up strong positions against it, ostensibly to empower and liberate Muslim women.
Historical Context
Before we get into a detailed discussion on triple talaq in India, it might be worthwhile to lay out a broader context and history. Here, it is important to mention that large sections of the Muslim population including the Shia and various Sunni groups, find no theological or jurisprudential basis for triple talaq. In 2017 there were 389 registered cases of triple talaq in a community, that by official accounts numbers at 160 million people in India alone.
The practice of divorce is sanctioned by the Quran with a number of caveats. Chapter 4, Verse 35 says: If you fear a breach between them (the couple), appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: For Allah hath full knowledge, and is acquainted with all things.
In Chapter 2, Verses 226-227 it is further said that: For those who take an oath for abstention from their wives, a waiting for four months is ordained; if then they return, God will be most forgiving and merciful.’
You will notice in both the verses that there is an emphasis on reconciliation, and therefore, divorce is certainly treated as something highly undesirable but of course provisions are made for intractable differences.
There are a number of other verses 65:7 and 2:231, which deal with alimony as well as maintenance and providing accommodation for the divorcee. However, the verse which has been interpreted to sanction triple talaq is from Chapter 2, Verse 230.
Reform From Within
Fa-inna Tallaqaaha fa la-tahilla lahu is how the verse begins and the word tallaqaaha which is sometimes translated as ‘final’ or ‘absolute divorce’, was interpreted by some scholars as the third and final time. In this sense there is no explicit mention of triple talaq in the Quran. The original logic was not that divorce was pronounced three times in one go, but that after the first and second time, there should still be the possibility of retracting the divorce.
The original debate about triple talaq goes back to the Prophet’s time.
Indeed in Sunni Muslim sources, there is a narration of Abdullah ibn Abbas about a famous wrestler Rukana ibn Abi Yazid who, in the heat of the moment, pronounced divorce three times and then regretted it. The Prophet then asked him to swear an oath about asking whether he intended a single divorce and when Rukana agreed, the divorce was treated as one that could be taken back. So we see then that there are Prophetic precedents that at the very least frown upon this practice.
Of course the intricacies of the debates in the ahadith or prophetic precedence, notwithstanding, triple talaq, historically became common within certain Sunni communities, and indeed a large majority of both Shia and Sunni Muslims do not see it as a valid form of divorce.
In fact, more than twenty Muslim majority countries including Pakistan have legislated against the practice and outlawed it.
In Egypt, there is a legislation that grants women the unilateral right to divorce with or without the husband’s consent. It is evident that Muslim scholars have thought about this issue deeply but of course there is one main difference. The changes in these societies were organic. In other words, the reforms emerged from within and therefore, both the law and the authority behind the law were accepted by the people.
Govt’s Double-Standards
It is not enough to just legislate change; it is equally important to consider the source of authority from which the law is derived. This is where the Indian situation is unique because triple talaq has become an issue that is clothed in the language of women’s empowerment but is essentially a political stick with which to beat the Muslim community.
Triple talaq as a policy advocated by the government cannot be seen independently from its other policies, and stands vis-à-vis the Muslim community.
One is forced to wonder why on the one hand members of the government, such as Uttar Pradesh Chief Minister Yogi Adityanath, make derogatory statements about Muslims and Muslim women in particular, while on the other hand their colleagues seek to empower them.
Indeed, Prime Minister Modi’s recent visit to a Bohri gathering during Muharram raised the important question as to why he is silent on the issue of female genital mutilation (FGM), which is a practice that has still not been banned within the Bohra community. A number of Daudi Bohra women even wrote a letter to the Prime Minister raising their concerns about FGM, but it seems political considerations ultimately trump real issues.
Real Intention Behind Triple Talaq Ordinance?
Ultimately, criminalising triple talaq is useless until and unless the issue is reformed from within the community. Indeed the ordinance begs the question as to why triple talaq needs to be penalised when the Surpreme Court has already said that a marriage will not stand dissolved if divorce is given by invoking triple talaq. Furthermore the question arises as to who will provide maintenance to the woman if the husband is jailed for three years? Reforms foisted in the name of empowerment will actually catalyze further conservatism, and women will inevitably suffer more.
At a time when Muslims already feel ‘besieged’, the wiser course of action would be to empower people to change themselves from within, but of course this means making the broader atmosphere more conducive to reform and change.
The inward turn is already evident in the positions of those Muslim scholars, such as various members of the All India Muslim Personal Law Board, who are opposing the ordinance while personally rejecting the practice of triple talaq. However, perhaps the real intentions of the current government is to actually further entrench the ‘siege mentality’ among Muslims.
People Need to Trust the Source of Law
Ultimately, real reform cannot take place if people do not trust the source of the law. Of course, there is the point of view that sometimes change needs to be imposed regardless of whether the community is ready to accept it or not, and indeed this is one way in which 18th and 19th century liberal philosophers justified imperialism as a civilizing process. The reaction to this conceit is there for everyone to see in the form of the various religious reform movements that entrenched certain forms of orthodoxy. We are still facing the effects of these movements today.
An argument can be made that the government’s position against triple talaq is merely affirming the position of the Quran.
As the Supreme Court said it will not be using another source of authority apart from the Quran, but the problem is that the timing and context in which this law is being advocated cannot be divorced from the prevalent political context.
Perhaps the wisest course of action would have been to let leaders from those sects who practice triple talaq sit with judges, jurists and lawyers to forge a path which will catalyze change organically, while also giving it the weight of the law. However, this would require politicians to actually have a political vision that goes beyond the next elections.
(Ali Khan Mahmudabad is an Indian historian, political scientist, poet, writer, and assistant professor in the dual fields of history and political science at Ashoka University. He tweets @Mahmudabad. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)