The current ruling party drafted and tabled a bill by the title The Muslim Women (protection of rights on marriage) Bill, in December 2017 in the Lok Sabha, the lower house of the Indian Parliament. When this bill did not pass, an ordinance was further promulgated in 2018 to that effect. Now, with the most recent antic of the ruling party, The Muslim Women Bill, 2018 has now seen the light of day in the Lok Sabha. This bill, as its predecessors, is aimed at the protection of the Muslim woman rendered helpless at the instance of the ‘triple talaq’ or the instantaneous triple divorce, whereby a husband may unitarily have pronounced an irrevocable divorce to his wife. Even by the standards of basic human rights, this practise is an outrageous way to end a marriage. Furthermore, given the sanctity of the institution of marriage within the realm of Islam, one will not be disappointed with the debate about the validity of this practise. In fact, most schools of jurisprudence in
To make it clear for the reader, Islamic law is the nearest comprehensible English translation of the word ‘Sharia(h)’; it is a system of law based on the principles of Islamic jurisprudence. This system continues to find application in Muslim majority Arab and non-Arab countries even today. Whereas, Shariat is the term used in the Indian subcontinent that gained a place in common language post the 1937 legislation titled The Muslim Personal Law (Shariat) Application Act, 1937. Passed on 7 October 1937,broadly speaking, this legislation covers aspects of but is not limited to marriage, divorce, inheritance, and, adoption. It is prudent to mention here that this act does not take into account a specific school of jurisprudence, and hence is very often in conflict in terms of applicability among differing schools. However, this topic in itself is a discussion for another day.
The essay will endeavour to decipher the aims and objectives of the aforementioned bill and analyse the effect of such a bill, if passed by the upper house, on the status quo of the Muslim women. For this, we look at the historical aspect of ‘triple talaq’ and further briefly delve into marriage and divorce in Islamic law. Finally, the essay will analyse the provisions of the bill, specifically in light of the current legislations that already provide for remedy for Muslim women in India through secular law such as the Indian penal code and the Criminal Procedure Code.
Understanding the Historical Context-
It is important to understand the historical context of the term triple talaq itself. Clearly this isn’t the first debate of its kind, and will most certainly not be the last. The issue became contentious since the time of the 2nd caliph of Islam, Umar ibn Khattab. The noted Egyptian scholar Haykal says that this system was resorted to meet an extraordinary situation that arose during the wars of conquest when many women from Syria, Egypt etc. were brought to Madinah. The Arabs were tempted to marry such women who were physically more attractive than the women of Madinah. But these women were not used to living with co wives and often made a condition that the men divorce their wives thrice so that they could not be taken back. This is reflective of their unawareness of the actual practise in Islam where three pronouncements were treated only as one. The Arabs would pronounce three divorces to satisfy these women but later took their former wives back, giving rise to innumerable disputes. To meet such a situation, Umar ibn Khattab thought it fit to enforce triple divorce in one sitting as irrevocable divorce so that such women would not feel cheated. It would thus be seen that the second caliph took that extraordinary step to meet an extraordinary situation. No such situation exists today and most certainly not in India.
There was no limitation to talaq in the time of pre-Islam Arabia. Men would divorce their wives at will and at times, return to claim them as their wife as and when they liked. Islam came to such a society to regulate this outrageous practise, which made them no different from animals. To put it in perspective, the Islamic practises enabled them to reclaim the humanity they seemed to have lost. In so far as tracing it back to the Holy Prophet, there is no such evidence, and the narrations in existence do not attribute it as a direct practise of the Holy Prophet himself. Within Islam, there are two groups, one which claims that triple talaq in one sitting, be it in the form of ‘I divorce you three times’ or saying ‘I divorce you’ three times, counts as a single revocable divorce. The other group claims that it holds the validity of an irrevocable divorce.
The debate about the aspect of ‘triple’ itself lies in the Quranic verse 2:229, where the word ‘marratan’ is meant as twice, but the proponents of triple divorce claim that it means verbally repeating the words with a specific number. The fact of the matter, however, is that it is referring to the divorce process and not just the word ‘talaq’. In the Arabic language used in the Quran, the other instances where the word ‘marrah’ is used, denotes an occasion or another occasion, and not a multiple occurrence at one occasion. Some scholars have compared it to the practise of rami-e-jamaar of the Hajj pilgrimage. The practise involves throwing seven stones at a pillar which is supposed to represent Satan. If one should throw 7 stones at one time, it is not accepted as being a complete ritual. It is mandatory to throw the pebbles one after the other.
Marriage and Divorce in Islamic Law-
The Holy Prophet of Islam regulated the institution of marriage in general. Before his time, women were considered as chattel and to be disposed of as at will, even subject to acquiring the status of mere property. The various forms of inhumane marriages such as group marriages, flag marriages, prostitution and marriage barter were all ultimately forbidden through divine revelation to the Holy Prophet. The Holy Quran states in Chapter 30, V. 21,
“And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed, in that are signs for a people who give thought.”
This clearly defines the sense of reciprocity of emotions between a husband and wife, which is one of the first rights that a Muslim woman is entitled to in the institution of marriage.
The woman is not an object of sexual gratification for the man, but an equal being, who is entrusted to him through what God has made blessed for mankind. The Muslim woman is entitled to a ‘kufah’ i.e. an equal status as her husband in the marriage.
In addition to that, she is entitled to a matrimonial home, and can even demand to live separately from her in laws. In financial terms she is entitled to receive dower, a consideration upon marriage, and she has a rightful share in the husband’s estate. There is a moral duty on the husband to treat his wife with respect and kindness to maintain peace and harmony in the matrimonial home. Some Arab countries, whose state law is Islamic law, have even codified this condition in their respective legislations. Maintenance is the lawful right of a wife under a valid marriage which includes food, clothing, medical treatment and, any other amenities that she may need.
At the same time, Islamic law has vested in her the right to repudiate the marriage if she finds that there is an element of inequality. In fact, the dissolution of marriage under Islamic law has been prescribed and classified in the following categories:
- By the husband-
i) Talaq repudiation
ii) Ilaa Vow of continence
iii) Zihar Injurious assimilation
- By the wife–
i) Tafweed Delegation of divorce
ii) Khula redemption
- By mutual consent–
Mubaaraah mutual freeing
- By judicial process-
i) Liaan mutual imprecation
ii) Faskh judicial recession
Edappagath in one of his pioneering works discusses divorce and gender equality in detail, touching upon sources within a very specific context. It is an excellent work, which goes into great detail about the intricacies of the process within the Shariat. However, it would seem that the minister who has tabled the bill, may have potentially overlooked the discussion by Edappagath in his book published in 2017. Why that is highly likely, follows below in a detailed critical analysis of the 2018 bill.
Critical analysis of The Muslim Women (protection of rights on marriage) Bill, 2018 –
Maulana Ashraf Ali Thanavi, is a revered scholar of the Hanafi school of Jurisprudence, more so in the Indian subcontinent. His scholastic achievements however do not do much for some of his misogynistic interpretations of religious texts. Surprisingly though, he holds the following position on how a Muslim wife is to be divorced:
“A person pronounces a revocable talaq. He then reconciles and resumes cohabitation. Two or four years later, under provocation he once again pronounces a revocable talaq. On recovering from provocation, he again resumes cohabitation. Now two talaqs are over. Hereafter, whenever he pronounces a talaq, it will be counted as the third talaq which will dissolve the marriage.”
It should be borne in mind, that the ‘triple divorce’ as practised by the contemporary Muslim community in India, has no basis in the Holy Quran. One article by Munir, discusses how the camp in favour of the instant triple talaq being valid, has solidified their opinion on the basis of the four tools of Islamic jurisprudence, i.e. the Quran, Sunnah or the traditions of the Holy Prophet,Ijma or the consensus of the community and, Qiyas or analogy. Yet he fails to take into account the fact that the methodology applied does not utilise generally accepted reliable sources for its justification. This reflects of a mind-set that is too formalist in its approach, seeking to circumvent provisions of Islamic law itself rather than try to redevelop the Islamic doctrine through a functionalist approach.
In another piece, Ahmad has made a legitimate argument about the inapplicability of triple talaq, while bringing in the earlier context of Caliph Umar Ibn Khattab and taking into due considerations the pragmatic realities of a situation where people have trivialised divorce by SMS or WhatsApp. The author writing in 2009, makes a poignant point, and rather timely given that the government wants to make a legislation criminalising triple talaq.
He says, “…Had those who derive the force of triple divorce from Hazrat Umar also proposed penalties, the Indian Government would have willingly incorporated them into the Muslim Women (Protection of Rights on Divorce) Act, 1986, e.g., by providing for the imprisonment of those dissolute husbands whoindulge in this abominable practice.”
This is indicative of the fact that Muslim Personal Law is indeed not immutable as the orthodox Muslim scholars have come to believe, but rather can be a subject of scrutiny, as was the norm in pre-independent India. The Muslim Shariat Act, 1937 itself is a manifestation of this exercise.
The latest bill drafted by the current serving law minister in the Government of India, Ravi Shankar Prasad, was tabled and passed before the lower house on 27 December 2018, replaying almost exactly what happened last year, minus the euphoria. This bill comes after a judgment, a bill, and an ordinance, all of which rendered the practise of triple divorce as “Un-Islamic, arbitrary, and unconstitutional” and thereafter made it an illegal practise. It certainly wasn’t the first time that the court has dealt with the issue of triple divorce, however what was unique in the Shayara Bano judgement was the contentious issue of the constitutional validity of the issue of triple talaq being challenged before the apex court. Apart from this aspect, the bench comprised of 5 judges ascribing to 5 different faiths. No doubt, one can sense a bit of a political gimmick, in a sense to appease the public, especially the Muslim community, that the decision so made was not done in pursuance of any malfeasance. The debate however, arose with the decision of the government to draft the bill which would effectively criminalise the practise of instantaneous and irrevocable triple talaq.
As a matter of personal observation, the fault may also lie with the language of the court judgment itself. In fact, one could even hold the petitioners accountable. The foundation of this predicament is one word, i.e. ‘illegal’. Perhaps what the petitioners wanted was to render the pronouncement of the triple an ‘unlawful’, against a harsher, ‘illegal.’ It becomes prudent to understand the difference between an ‘illegal’ act and an ‘unlawful’ one, in this context specifically, because it would seem that of triple talaq is already a conflicted term under the Shariat, in a sense, already deemed unlawful but not necessarily illegal. Hence, for the court to intervene in such a way would imply a dangerous move of the secular overstepping into the religious. Perhaps someday, an M.C. Mehta fan might wake up and say that the Hindus should stop burning their dead as it impacts Air quality severely. But that is a debate for another day.
It should be mentioned here, that the idea of implementing a measure of deterrent to prevent such an arbitrary divorce is not recent. Ahmad in his article has made a contention about those supporting triple talaq on the basis of the tradition of the second caliph of Islam, Umar ibn Khattab, should take into consideration the fact that he did so as a measure of deterrence in protecting the interests of the Muslim women of his time under extraordinary circumstances.
Delving into the nuances of the bill, at the very outset, the bill talks of protection of rights on marriage. But rather strangely does not define what those rights of marriage are. Right after the title, is followed by this sentence, “to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaqby their husbands and to provide for matters connected therewith or incidental thereto”.
Prima facie, one can identify 4 different aspects of family law in that sentence, i.e. marriage, divorce, maintenance and custody. Each of these aspects is not exhaustive, with numerous scholars of law and Islam alike, having written volumes upon volumes of dissemination. Yet for the law ministry of the largest democracy in the world, all it took was about 1200 words to address four different aspects of family law under Muslim Personal Law in India. In addition to this, when the time for amendments came, various parties in the opposition voiced different concerns, with the proposal to set up a standing committee to further analyse the bill taking the forefront of the debate. Yet the government decided to overlook not just the proposed amendments but even the option of the standing committee revision. This in fact again being a repeat of the events of 2017.
Going further into the bill, clause 2 sub clause b identifies talaq-e-biddat or any similar form of divorce that has an instantaneous and irrevocable effect. However, as per Islamic law, the major schools of jurisprudence including the ithna’ asharee Shias, have identified different forms of talaq–e-biddat, from what has been mentioned and discussed in the aforementioned bill. The semantics of this clause can prove to be quite problematic in the sense that it does not define the specific kind of talaq-e-biddat, apart from the instantaneous and irrevocable bit. Apart from the fact that the Muslim Personal Law is based majorly on Hanafi law, there is no provision within the codified law to the effect that it could prevent the Muslims from choosing to go by route different from the established Hanafi School. This process of choosing from different schools is called as takkahyyur, which has been used many a times to ease a way out of a difficult situation. Former Grand mufti of Delhi, Maulana Kefaayatullah, relates a matter brought to him, which involved the follower of the Hanafi sect obtaining a fatwa or a legal advice from a mufti from the Ahl-i-hadith sect, when he pronounced a triple divorce on his wife and regretted it. Maulana Kefayatullah opined that it was an improper act for the man to have done, and that if he did so in a state of compulsion and hardship, it does not attract for him to be ostracised from society. The point here being that there is no law that can prevent a person from circumventing a given provision. Although the clause says that it covers any form of instantaneous and irrevocable divorce, it is the usage of the term talaq-e-biddat itself here that can potentially create problems for the Muslim community.
Chapter II of this bill is where the real problem actually begins to manifest itself in a very obvious manner. When one looks at clause 4, the language states that, “Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.” In Chapter III, clause 7 renders the offence as cognizable and non bailable. To put it in perspective, the punishment for sedition under the Indian Penal Code, 1860 also attracts a similar imprisonment term if proven guilty. Furthermore, subclause C has absolute vague context. The subjectivity of this clause can prove to be an Achilles heel to the sanctity of this well-meaning legislation.
Within the IPC, chapter XX actually defines the offences relating to marriage. Although it must be said, that the offences mentioned in this chapter deal mainly with infidelity within the institution of marriage. Nevertheless, a similarity can be drawn with s.498A of the IPC, introduced in 1983 as a means to protect married women, declaring cruelty as a non-bailable, cognizable offence. Rather ironically, numerous petitions lie in the Supreme Court, which have called for amendment to the provision of cruelty, since there have been claims of misuse of this provision. The police have used it as a tool to threaten or even arrest the husband and his relatives against whom the wife may have filed a complaint, without so much as a preliminary investigation and probe into the matter. Without the immediate hope of bail, this puts the matrimonial home at risk and impedes any hope for a meaningful reconciliation.
Perhaps the universe does have a strange sense of humour. The very same year that the Shayara Bano verdict was passed, the Supreme Court of India, comprising a two judge bench of Justice AK Goel and U Lalit, issued a new set of directions to prevent the misuse of section 498A of the IPC on 27th July 2017. The judgment made for provisions which allowed for complaints made under S.498A to the police or the magistrate, to be looked into by a family welfare committee constituted by the District Legal Services Authorities. And any arrest pursuant to the matter, should be made only after the report of the committee is received. The judges go further to take into account the plight of those Indians residing outside of India against whom such a complaint has been filed.
Now compare this with the bill tabled by the honourable Law Minister. Not only has the bill turned a civil wrong into a criminal offence, but rendered it cognisable and non bailable too, without any remedial mechanism in place should the allegations against the husband prove to be false.
Moving onto chapter III of the bill, Protection of Rights of married women, clause 5 of the bill states that, “Without prejudice to the generality of the provisions contained in any other law for the time being in force, a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children as may be determined by the Magistrate.”
Due to the absence of clarity on what subsistence allowance actually means, for purposes of debate, we assume it to mean that the woman is entitled to maintenance from her husband. The husband, who is already in jail, will provide for maintenance of his wife. As absurd as it may seem, let us consider this possibility can actually happen. Should the man have a stable income, it only seems fair that the wife be maintained out of his savings and estate. But what happens to the woman, once those savings run out? Who will take responsibility for maintaining her and her children? And if the husband was the sole breadwinner of the family, this makes her situation much worse off than she was before. Further, if the husband was a daily wage worker, this would mean that there is no source of income at all. These are all pragmatic realities of life, that those in the drafting committee of the bill have so callously chosen to ignore, pushing the Muslim woman and her children into an abyss of uncertainty.
The statement of objects and reasons acknowledges that the fact that the Supreme Court of India has set aside the practise of talaq–e-biddat, yet it persists in drafting such a haphazard law. The Law Minister in a subsequent sitting of the parliament made claims that despite the ruling, there has been continual reports of such cases of divorce, however has not quite provided the source on that data.
If the government was really keen on actual reform of practises within a community, it would first and foremost, create a committee to actually assess the real problems plaguing Muslim women. Secondly, it could have gone into the depths of Islamic law to find the right remedy for such an issue.
The time to introspect for the Muslim community has come. The judgment that set precedent for this bill, establishes yet another precedent that essentially challenges the very identity of the Indian Muslim woman and reinforcing the age-old stereotype, that the Muslim woman can only be liberated at the hands of a universally established principle of equality, and not the alleged archaic practises of Islam itself. The Muslim woman ultimately finds herself in a tough spot, caught between binaries that should have been defined by intersectionality. Islamic law has already provided for a gender balanced provision of divorce unlike the concluding sentence of point 7 in the statement of objects and reasons.
I conclude by this, the intervention for change in the practise of Muslim divorce should be initiated from within the community itself, rather than on the basis that the Muslim women are at any less or any more disadvantage than their counterparts in other religions. When the marriage contract is meant to be a sacrosanct contract under Muslim law, the practise of triple talaq defies all reason attached to this kind of contract. Even a commercial contract cannot be invalidated this way.
There needs to be
Writer: Aiman Rizvi (B.A., LL.B(Hons), LLM (Islamic Law))
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