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The Triple Talaq debate;  Greater Kashmir

Studying the whole issue in light of history, tradition and the law

Mian Abdul Qayoom, Advocate
Srinagar, Publish Date: Oct 23 2016 10:05PM | Updated Date: Oct 23 2016 10:05PM

The Triple Talaq debateRepresentational PicIn 1985, when Supreme Court announced its verdict in Shah Bano case and held that a Muslim husband is liable to provide maintenance for divorced wife, who is unable to maintain herself and even suggested the necessity of uniform civil code and also referred to Dr. Tahir Mahmood’s “Powerful Plea” for framing such a uniform code for all citizens of India, all the Muslims rose in revolt, against the said decision, forcing the Govt. of India to come out, with an enactment known as “Muslim Women (Protection of Rights on Divorce) Act, 1986” to nullify the effect of the judgment.

The appellant in Shah Bano case was one Mohammad Ahmad Khan, an Advocate, who was married to Shah Bano in 1932. Three sons and two daughters were born of that marriage to them. Shah Bano was however driven out of the matrimonial home by her husband in 1975. She filed a petition u/s 125 Cr.P.C. in April, 1978 against her husband in the court of Judicial Magistrate, Indore, asking for maintenance @ Rs. 500/- per month. On November 6, 1978, her husband divorced her by an irrevocable Talaq and thereafter pleaded before the court, that since Shah Bano has ceased to be his wife, therefore, he is not liable to pay her any maintenance. The trial court in August, 1979, ordered him to pay a maintenance of Rs. 25/- per month to his wife. The order was challenged by the husband before Madhya Pradesh High Court which enhanced the amount of maintenance to Rs. 179.20 per month.

The husband challenged the order before the Supreme Court through a Special Leave Petition which was decided by a constitutional bench on 23.04.1985.

The question of law, which arose for consideration in Shah Bano case was, as to whether Muslim Law imposes any obligation for the husband to provide for the maintenance of his divorced wife or not. The court after taking cognizance of its several decisions came to the conclusion that irrespective of Muslim Personal Law, section 125 Cr.P.C. confers a right on a Muslim divorced woman to apply for maintenance and the court has the jurisdiction to grant the maintenance to her.

All India Muslim Personal Law Board had also intervened in the matter but the court ridiculed the Board by saying that “it is a matter of great regret that some of the interveners, who supported the appellant, took up an extreme position by displaying an unwarranted zeal to defeat the right to maintenance of women, who are unable to maintain themselves”. On the other hand it appreciated Begum Temur Jehan, a social worker, who intervened to support Daniel Latifi, who appeared on behalf of the wife.

Shah Bano an illiterate Muslim woman, however, proved herself to be wiser than the Supreme Court and refused to take the maintenance amount of Rs. 179.20 per month given to her by the court, by saying that I do not want that what my beloved Prophet of Islam has denied me”.

The Act of 1986 has not however stopped Anti-Muslim lobbies in India to seek Supreme Court’s intervention to rule against Triple Talaq and polygamy and also to force the Govt. of India to enact a common civil code. Even though in 1997, Supreme Court settled the issue by observing that it cannot compel the Govt. to enact common civil code because it is not its domain, as Article 44 which provides for a common civil code falls in Part IV and as a directive principle of state policy, is not enforceable by any court, but in so far as Triple Talaq and polygamy is concerned it has shown its inclination to declare the same unconstitutional. In this behalf it is very interesting to note that on 07.12.2015, while hearing a petition filed by a Delhi BJP Leader, against Triple Talaq, a three judge bench of the Supreme Court observed that the matter can be taken up only if any discriminated Muslim woman comes forward. Taking cue from the comment, a Muslim woman Shayara Banu, came before the court, with a PIL stating therein that Triple Talaq and polygamy have been restricted by many Islamic Countries including Saudi Arabia, Pakistan and Iraq, but such a practice is still continuing in India, as such the same be declared illegal, unconstitutional, un-Islamic and violative of the fundamental right to equality and liberty under the constitution. In the said petition, the Supreme Court has so far passed several orders including the one dated 28.03.2016, asking the central Govt. to furnish a copy of the “2015 High Level Committee report recommending ban on Triple Talaq and polygamy in Muslim Personal Law”.

The Govt. of India has filed its affidavit in the aforesaid case, in which it has stated that Muslim Personal Law, is a “law” within the meaning of Article 13 of the Constitution of India and as it is violative of right to equality between men and women, guaranteed by Part III of the constitution of India, therefore, the Muslim Personal Law, in so far it recognizes the Triple Talaq is void. It has also invoked the UN Charter of 1945 and has stated that since the said charter reaffirms the faith in the equal rights of men and women, as such to achieve the said objective, the Triple Talaq has to be declared invalid. It has also sought reconsideration of 1952 judgment of the Bombay High Court, which has held that Personal Law is not a “law” with the meaning of Article 13 of the constitution of India and as such cannot be assailed on the ground of its repugnancy with the fundamental rights. The Law Commission has also in the meanwhile stepped in and has asked for response for implementing a common civil code.

Before proceeding further it is relevant to mention here that there is a very huge and rich Islamic literature available on Talaq and without going through the principles enshrined in Islamic Jurisprudence regarding the pronouncing of Talaq by a Muslim, some women claiming themselves to be a progressive, are questioning the giving of Triple Talaq by a Muslim male and have even approached the Supreme Court for declaring the same unconstitutional, forgetting it is obligatory upon Muslims to be obedient to Allah, fear him and to be dutiful to him and to settle the matters of differences amongst themselves and to propagate the invitation to the religion of Islam to others, publish its good aspects and instruct the people to follow its laws of wisdom, as did the Muslims of early days. Those Muslims strove hard in Allah’s cause with sincerity and with all their efforts. They stood inviting people to Allah’s religion, explained to them the good aspects and the excellence of Islam and that was the reason that Islam spread to far of countries rapidly. We have however, deviated from the right path, tore ourselves into pieces, doubted the truth and became groups and sects having different views and opinions, opposing each other in their aims. How can we progress, when we follow the disbelieving nations, pursue their ways and footsteps and imitate their actions small or great? Muslims had left behind great traditions, but we are inventing something new, which has no sanction in Islamic tenets.

Take for example the issue of Talaq. We know that there are two kinds of Talaqs recognized by Hanafis vis. Talaq-us-Sunnat and Talaq-ul-Bidat. Talaq-us-Sunnat is the divorce, which is effected in accordance with the rules laid down in the traditions (the Sunnat) handed down by Prophet or his disciples. It is infact, the mode and procedure which seems to have been approved of, at the beginning of his ministry and is consequently, regarded as the regular or proper and orthodox form of divorce.

The Shias and Malikees, do not recognize the Talaq-ul-Bidat whilst the Hanafi and Shafee’s agree in holding that a divorce is effective, if pronounced in the bidat form, though in its commission the man incurs a sin. In the Talaq-ul-Bidat, the husband may pronounce the three formulae at one time, whether the wife be in a state of Tuhar or not. The separation then takes effect definitely after the woman has fulfilled her Iddat or period of probate. As a general rule, the power of Talaq under the Sunni doctrine is larger than that under the Shia Law. According to Hanfi doctrine although an acknowledgement of Talaq viz. an acknowledgement by a man that he had divorced his wife, extracted from him under compulsion is ineffective, a Talaq actually pronounced under compulsion is valid. A Talaq, says the Fatwai Alamgiri, pronounced by any husband who is of mature age and possessed of understanding is effective, whether he be free or a slave, willing or acting under compulsion and even though it were uttered in sport or jest or inadvertently, by a mere slip of the tongue, but he must be awake at the time when he pronounces the Talaq. Similarly if a man is forcibly made drunk and in that state Talaqs his wife, such Talaq will not take effect. Further, if a man be dead-drunk and cannot distinguish between right or wrong, a Talaq pronounced by him will not be effective. The general principle however is that if a man is not liable for punishment, a Talaq pronounced by him is not effective. Similarly a Talaq by one who is insane, or afflicted by pleurisy (birsam) or happens to be delirious or in a faint, is not effective. So also, if a person were to pronounce a Talaq whilst asleep or unconscious (madhosh) or lost in astonishment, no legal effect will be attached to it. Regarding a person suffering from paralysis or epilepsy, consideration must be paid to the length of time the disease has lasted. (See Mohammadan Law, by Syed Ameer Ali).

There are many more considerations which one has to take into account before giving his opinion or verdict about the issue involving Talaq.

Triple Talaq, ‘polygamy’ or ‘common civil code’ are the issues which are raised by Hindu fundamentalists to belittle Islam. They don’t oppose Jewish Law, Christian Law, Buddhist Law, Jain Law or any other law, which is followed in India. They are only after Islamic Law, because they somehow want to show down Islam. They proclaim that the rights of women in Islam are very little and that they should be freed from the strings of Islamic Hadood. They propound the theory of Woman Empowerment, only to breed discontent, forgetting that under Islamic Law, a woman occupies a superior legal position to that of her English or Hindu sister. As long as she is unmarried, she remains under the parental roof and until she attains her majority, she is under the control of her father. When she comes of age, the law vests in her all the rights which belong to her as an independent human being. She is entitled to a share in her parent’s property like her brothers, though the proportion is different, the distinction being founded on a just comprehension of relative circumstances of brother and sister. On her marriage she doesnot lose her individuality. She does not cease to be a separate member of society and her existence does not merge in that of her husband. No doctrine of “couverture” is recognized. Her property remains hers in her individual right. She can sue her debtors in the open courts, without the necessity of joining a next friend or under cover of her husband’s name. She continues to exercise, after she has passed from her father’s house into her husband’s home, all the rights which the law gives to men. All the privileges which belong to her as woman and a wife are secured to her not by the courtesies that “come and go” but the actual text in the book of law. She can alienate or devise her property, without asking the leave of her husband. She can act as an administratrix or executrix or be appointed a governor of a charitable endowment. A Muslim wife retains in her husband’s house hold all the rights, which the law vests in her as a responsible member of society. She can sue or can be sued. She has a distinct lien on her husband’s estate for her anti-nuptial settlement. Her rights as a mother do not depend for their recognition upon the idiosyncrasies of individual judges. She can enter into binding contracts with her husband and proceed against him in law, if necessary. Her earnings acquired by her individual exertions, cannot be wasted by a prodigal husband nor can she be ill-treated with impunity by one who is brutal. It is only when she abjures the Muslim faith that she gets excluded from the rights of succession to the inheritance of her Muslim relations. It is obligatory on her part to offer prayers, observe fast and perform Hajj like men and on that count she is no less a Muslim. Islam treats her above a man in all respects. As daughter, sister and mother, she has superior rights. Prophet Mohammad S.A.W. has said that if a man or woman wants to go to Paradise, it is under the feet of his/her mother, he or she should serve your mother, He has also said that if you want to be with Me in Paradise, bring up a daughter with love, affection and give her the best education. This perhaps is nowhere in any other religion.

The issue of Talaq, is not a subject matter of any controversy in any Islamic country, because its limits and contours are well defined. It is however raised in India by those who are inimical to Islam. The Muslims therefore, deserves to tell these communal forces that they should not interfere with their religious issues, as the Muslims are not doing with theirs. They should be told that their religion, good or bad, is for them and ours is for us. They should be told that “I will not worship that which they worship nor will they worship that which I worship”. They should be also told that “I shall not worship that which they are worshiping nor will they worship that which I am worshiping”. “To them be their religion and to me my religion”. It is only when, we tell them so with one voice, they will stop interfering in our religious matters.

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