This Article is From Jun 14, 2017

What's At Risk If Triple Talaq Is Declared Unconstitutional

The lawyers have had their say. The constitution bench has reserved its judgement. We will have to wait till July to hear their final decision. The matter is thus sub judice. So, we have to tread warily.  

The origins of this litigation lie in Part II of a judgement rendered by a two-judge bench on October 16, 2015 hearing a matter relating to the Hindu Succession Act, 1925, that directed the Attorney General of India and the National Legal Services Authority to take steps to open the way to Public Interest Litigation (PIL) so that the Supreme Court might suo moto (of its own will) examine the question of "gender discrimination against Muslim women" as "there is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage resulting in denial of dignity and security to her". If this practice is found to be violative of articles 14, 15 and 21 of the Constitution, then discriminatory provisions of Muslim Personal Law "can be superseded by the state just as practice of sati." (I have not attempted to correct Their Lordship's grammar). Two earlier cases were cited to hold that "laws dealing with marriage and succession are not part of religion".

Arguing before the five-member constitution bench set up to examine the question of whether triple talaq was or was not "constitutional", the Attorney General underlined that as the law had "already done away with" such practices as sati, infanticide, polygamy, child marriage, Devadasis and Untouchability that were earlier claimed to have scriptural sanction, there was no reason why triple talaq should not also be deemed "unconstitutional". He said that once the Supreme Court came to such a conclusion, the government would bring in the required legislation. 

A key question that was barely mentioned in the proceedings was the extent or prevalence of triple talaq in the Muslim community. The Attorney General neither volunteered the information nor did the court ask him to furnish it. Its relevance is that while the obnoxious practices listed by the Attorney General were, indeed, widespread and of long-standing, triple talaq is neither generally nor frequently nor practiced widely in the Muslim community. Counsel for the All-India Muslim Personal Law Board (AIMPLB), Kapil Sibal, did, of course, point out that triple talaq was resorted to in less than half of one percent of Muslim divorces, the exact figure he gave being 0.44%. 

We now have more information. After the hearing was concluded, the Centre for Research and Debates in Development Policy reported through Abusaleh Shariff and Syed Khalid, the results of a survey it had carried out among a random sample of 20,671 Muslims (16,860 men and 3811 women). The survey revealed that only 0.3% of divorces in the Muslim community were through triple talaq "in one go". Since these results were published nearly a fortnight after the Supreme Court hearings concluded on May 18, I am not sure they can be taken into account by the constitution bench, but we mere mortals are surely entitled to understand the implications of this research: neither Sibal's 0.44% finding, nor this survey's 0.3%, points to triple talaq being a widespread Muslim community practice. The analogy with the obsolete Hindu practices that in their day were both widespread and pervasive hardly holds when triple talaq is clearly an aberrant and, as Sibal said, a "dying" practice. 

The survey further revealed that of their sample of over 20,000 Muslim respondents, only 331 were divorced. Drawing on the findings of the Census of India (2001), it was pointed out that divorce among Muslims is much lower than in the majority community. The terrible problems that divorce leads to are, thus, not a matter of community but of more general social significance. 

Of the 331 divorced persons sifted out of over 20,000 Muslim men and women, the survey found that only one woman had suffered the ignominy and horrendous consequences of triple talaq, whereas more than a third (36%) had been divorced by "talaq" being pronounced once a month over three months in front of elders and family members; 25% in front of a qazi or darul qaza; 21% through courts or legal notices; and 17% in the presence of NGOs, police stations or panchayats. In other words, not only are Muslim marriages far more stable than non-Muslim marriages, an overwhelming share of Muslim divorces go through a prolonged process during which every effort is made by the family, friends and the community to assist the couple in reconciling their differences. Surprise, surprise, Muslims are really much like you and me - only marginally better!

Moreover, of the 331 divorcees identified, the number of women who initiated divorce proceedings - "qul" - at 126 was almost the same as "talaq" proceedings initiated by men - at 134. And if "qula" initiated by the woman's parents are added (54), "qula" tops "talaq" by a majority of 180 to 134. Islam, it would appear, gives almost the same rights to women as to men to escape from an insufferable marriage. 

Besides, Islam has no inhibitions at all over the remarriage of divorcees. An astonishing 78% of all divorced Muslim women surveyed had remarried. Remarriage of divorced women is a common, socially approved and Shariat-sanctioned practice in Islamic law. While any Muslim divorcee might readily remarry if she finds an appropriate and willing mate, taboos against this are much stronger and more widespread in the Hindu community. Hence, even while being stricken by the ghastly consequences of triple talaq, it should also be recognized that triple talaq - or any other form of divorce - is not the end of the road for Muslim women as it is for a wide cross-section of Hindu women and others.

Further, says the Shariff/Khalid report, where the 2001 Census of India estimates the number of separated or abandoned Indian women at 2-3 million, the estimated number of Muslim women stranded in this pathetic condition is only 2.8 lakh. (Christians are 0.9 lakh and "other minority religions" amount to 0.8 lakh). Overwhelmingly, abandonment or separation without formal divorce is a majority community issue - but not recognized as such. Its consequences are quite as deleterious as the issues of which the Supreme Court is seized.

It would also be relevant to note that the social and economic plight of poor widowed women in our country is truly alarming. The Census says there are 43 million such women in our country. Some may not be "poor" but the vast majority must be. The community break-up is not given, yet it would be reasonable to consider the economic and social plight of these widowed women as being on par, irrespective of religious community. But Muslim women can escape into remarriage. The widows of India, particularly the plight of poor Hindu widows, should attract at least as much public attention as triple talaq is currently exercising.

The survey concludes that "women and children are indeed at economic and social risk after "talaq", but this is true of divorce in every form and in every community, as also both under personal community law or civil law. It is not particular to just one community.

Yet the saffron brigade regard this as a golden opportunity to drive home their point that Muslims are a somewhat barbarous community who resort to talaq "without reason" ("be-wajah") to keep "changing wives" to "satisfy their lust". (Swami Prasad Maurya, BJP state minister for labour and employment). He went on to generalize: "By pronouncing talaq thrice, Muslim husbands leave their wives and children to beg on the streets." He added: "Without reason or cause, and arbitrarily, Muslim men divorce their women...Talaq has no basis (foundation)." [Translation from Hindi done by the author. NDTV has clarified that this is a syndicated feed. As far as this writer is aware, the statement, as quoted, has not been disavowed]. 

Earlier, Modi raised the issue of triple talaq and said "Justice should be done to Muslim women" . Why not all women? Are Hindu women exempt from "justice" - as at least one abandoned Hindu wife we all know might testify? Next day, Yogi Adityanath, the then newly sworn-in Chief Minister of Uttar Pradesh, likened "the Muslim practice of divorce to the disrobing of Draupadi in the Mahabharat."

The Supreme Court Chief Justice has clarified that the bench (comprising besides the Sikh Chairman, a Muslim, a Christian, a Parsi and a Hindu member) is concerned only with the constitutionality of triple talaq. We must, of course, await and abide by their judgement. But assuming the court decides that the practice is unconstitutional, the question remains as to whether a Lok Sabha with the lowest number of Muslims members ever (22), constituting just 4.2% of the membership of the House, will be able to legislate on matters of Muslim "marriage and divorce"? With great difficulty, and in the face of fierce resistance from the orthodox, Hindu law was codified by a House comprised very largely of Hindus. As far as I have been able to make out from the first Lok Sabha's record, there were no Muslim members who participated in the proceedings. Are 520 non-Muslim members going to decide the fate of Muslim Personal Law? 

True, the bench have explicitly ruled out of their consideration all issues other than "triple talaq" but the Attorney General, appearing on behalf of the union government, has gone much further. He has not said legislation will be limited to "triple talaq" but the entire gambit of issues of "marriage and divorce" (including, inevitably, "succession", as explicitly mentioned in the two-judge direction of October 16, 2015 cited above). 

For Hindus, marriage is a sacrament. For Muslims, marriage is a contract. There is no copious shedding of tears among Muslims, as among (North Indian) Hindus, at the time of "doli", for their daughter is not leaving forever - she has a religion-sanctioned right to the protection of the male members of her family of birth throughout her life and of the Waqf if there is no male member to protect her. True, this is observed more often than not in the breach. But the legislature and executive are empowered to plug these holes. That they fail, as often as actual Muslim practice fails, needs to be amicably sorted out with Muslim public opinion.

For there is one immensely powerful weapon in Muslim hands, ijtihad - the right to reinterpret the law to respond to evolving realities. Ijtihad lies at basis of all Islamic jurisprudence. That is why the AIMPLB (All India Muslim Personal Law Board) has been induced to declare triple talaq a "sin", "prohibited", "irregular", "unjust" and an "undesirable practice" even in the Shariat; that "it is open for women to insist on specific clauses in the nikahnama to protect their interests and dignity"; and that, to this end, the AIMPLB will circulate a model Nikahnama that provides for brides to incorporate into the marriage contract "provisions therein, consistent with Islamic law, to contractually stipulate that her husband does not resort to triple talaq." Further, that notwithstanding the restriction of the man's right to triple talaq, she retains "the right to pronounce triple talaq in all its forms" and "ask for a very high 'meher' amount in case of talaq and impose such other conditions as are available to her to protect her dignity". They have also offered to organize the social boycott of any Muslim who resorts to triple talaq. That is how ijtihad unfolds.

The Bharatiya Muslim Mahila Andolan (BMMA) has dismissed this by pointing to AIMPLB being no more than a "registered NGO" that "does not govern or employ the qazis". Moreover, says BMMA, the AIMPLB does not have "any legal or religious sanctity". Hence, they stress, it is only a change in the law that will protect the Muslim woman who is put away by her husband saying "talaq" three times at one go. The point is as valid as the Attorney General saying the law has abolished "untouchability". Has it? Ask any Dalit.

Another very distinguished Muslim woman activist and intellectual, Syeda Hameed, argues in The Hindu that as the Bombay High Court in Dagdu Pathan v/s Rahimbi (2002) and the Supreme Court in Shamim Ara (also 2002) have already "banned" triple talaq, there is no need to pursue the matter any further. However, what the Attorney General proposes, if the Supreme Court holds triple talaq to be "unconstitutional", is to pursue the matter through parliament. We do not know whether Syeda Hameed would like matters relating to such issues to be legislated by a House in which there is minuscule Muslim representation. 

Another very influential Muslim opinion-maker, Arif Mohammad Khan, in a very learned and persuasive article in The Indian Express, holds that triple talaq is an "enormity" that "robs Muslim women of their fundamental rights", is "violative of the Quranic procedure", "inhumane", and "anti-Islam". However, he does not address (at least in this article) the question of whether Muslim Personal Law should be legislated (virtually out of existence, if legislation were to go beyond the limited question of triple talaq to cover all matters of "marriage and divorce", including implicitly succession, as stated in court by the Attorney General) and that too by a parliament that falls grievously short of adequate Muslim representation, or whether he endorses the view of the Muslim theologian, Maulana Syed Athar Hussein Dehlavi of the Anjuman Minhaj-e-Rasool, who has come down equally harshly on triple talaq ("Allah has said in the Quran that the word he hates most is divorce"), but adds: "I am against the idea of the State intervening in people's religious would be better that we resolve these issues among ourselves".

Of course, the Bharatiya Muslim Mahila Andolan and other such bodies have raised social consciousness of the problems of Muslim women, proving that there is plenty of scope in Muslim communities for promoting change from within. The Supreme Court being seized of the constitutional validity of one almost extinct Muslim practice is, of course, a fait acccompli. Will it then be left to those afflicted to move the courts to strike down any attempt at triple talaq or will the Pandora's Box be opened of a non-Muslim body legislating Muslim Personal Law? That is likely to be the big issue facing the nation about six weeks from now. 

(Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha.)

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