Triple Talaq: Time for the Ulema to Wake Up and Smell the Coffee

Written by Farhan Rahman | Published on: June 19, 2016

Photo credit: DNA

The fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue.

The tussle between All India Muslim Personal Law Board (AIMPLB) and many liberal and progressive Muslims as well as Muslim women’s organisations, viz. the Bharatiya Muslim Mahila Andolan (BMMA) on the issue of abolition of triple talaq, has brought to the fore an issue which has plagued the Muslim community, especially the women, since ages.

The issue has also been fuelled by Shayara Bano’s case, in which a woman after facing 15 years of domestic violence was divorced by her husband, sending her a talaqnama by post. The issue immediately caught media limelight and parallels started being drawn with the similar rhyming case of Shah Bano of 1985, in which a 62-year-old, mother of five children, divorced from her husband, won the right to alimony in the Supreme Court.

However, the then Congress government under pressure of orthodox ulema passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court judgment and denied even the destitute Muslim divorcees the right to alimony. It was a classic example of placating the orthodox community leaders for the sake of reaping political dividends through community support, which gave tooth to non-representative and decrepit organizations like AIMPLB. The AIMPLB was instrumental in pressuring the government to enact the Muslim Women’s Act in 1986 as well as the Dissolution of Muslim Marriages Act, during the pre-independence period.



It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The recent incidents have reignited the need for codification of Muslim Personal Law today. In fact, what is known as Muslim Personal Law today was known either as Anglo-Mohammedan Law during the British period or simply as Mohammedan Law and was enacted by the British. But after independence the terminology was changed and the Anglo Mohammedan Law, in order to wipe out its colonial stamp, came to be re-named as Muslim Personal Law.

However, its contents did not change. Thus, the change in terminology was oriented towards wiping out the colonial stamp and did not in any way restructure the contents in tune with the changed social milieu. Women, Muslim and non-Muslim, did not have a say in religious matters during the colonial times. However, 68 years post independence things have changed and women today across communities are becoming vociferous against misogynist traditions introduced/preserved by orthodox religious leaders which suited the patriarchal setup.

The recent tussle between the AIMPLB and BMMA can be seen in this light. It needs to be reiterated that the political victory won by the AIMPLB in the Shah Bano case, whereby it was successful in diluting the Supreme Court’s judgment through political intervention, not just provided it legitimacy as a legal body of the Muslim community, but also the privilege to counter Supreme Court jurisdiction in the garb of religious injunctions which cannot be violated by courts. This has set a bad precedent and privilege which the AIMPLB is not willing to forego.

Whenever a case against triple talaq comes into court the AIMPLB takes it as an intrusion in its legal domain. It pleads that the courts have no jurisdiction to adjudicate over Muslim Personal law since it is inextricably interwoven with the religion of Islam, which is based on Quranic injunctions and is not a law enacted by Parliament. However, what the AIMPLB misses out completely are the legal precedents over the past 15 years, whereby triple talaq has been invalidated by courts time and again. 

The AIMPLB has decided to contest Shayara Bano case and oppose any move to scrap triple talaq. Muslim leaders like the MIM leader and MP from Hyderabad Asaduddin Owaisi have also thrown their weight behind the AIMPLB move saying that the AIMPLB must the hire best lawyers to put up a strong case before the Supreme Court. But what escapes the attention of these self-proclaimed leaders and custodians of the Muslim community are the legal precedents involving triple talaq.

It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The Supreme Court, in a landmark ruling in Shamim Ara v State of UP (2002) invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq and the liability of the husband to pay maintenance to his wife does not come to an end through such communication. The court held that in order to be valid, talaq has to be pronounced as per Quranic injunctions.

In 2002 again, the full bench of the Bombay High Court in Dagdu Pathan v Rahimbi Pathan case held that a Muslim husband cannot repudiate the marriage at will. The Quranic injunctions were invoked during the hearing of this case as well, with the court ruling that all stages – conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings between parties – are required to be proved when the wife disputes the fact of talaq before a competent court. A mere statement in writing or oral disposition before the court regarding talaq sometime in the past is not sufficient to prove the fact of divorce.

The Bombay High Court, in Najmunbee v Sk Sikander Sk Rahman (2004), reiterated this position and held that a Muslim husband cannot repudiate his marriage at will. He has to prove supporting reasons for his decision and it cannot be based on a mere whim. Muslim law mandates pre-divorce reconciliation between parties through the intervention of arbitrators.

In Dilshad Begaum Ahmadkhan Pathan v Ahmadkhan Hanifkhan Pathan (2007) case, the Bombay High Court held that though the husband had proven (in the sessions court) that he had pronounced talaq it was not valid and legal as the additional requirements like, the reasons for divorce, the appointment of arbitrators and conciliation proceedings to bring about reconciliation, had not been proved.

In Riaz Fatima v Mohd Sharif (2007) case, the husband had pleaded that since he had divorced his wife she was not entitled to maintenance. He produced the photocopy of a fatwa obtained by him regarding the validity of the talaq. Rejecting the husband’s contention, the magistrate’s court had awarded maintenance to the wife and child. The Sessions court however overruled this decision and set aside the order of maintenance.

In an appeal, the Delhi High Court laid down clear guidelines regarding the process of proving talaq: (a) divorce must have a reasonable cause and the husband has to provide evidence showing the cause which compelled him to divorce; (b) he has to prove that the word talaq was proclaimed thrice in the presence of a witness or in a letter, (c) he has to prove that an attempt at reconciliation has been made prior to divorce; and (d) there has to be proof of payment of meher and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).

The court, turning down the plea of the husband stated that in the present case there was insufficient evidence to prove that the husband had pronounced talaq on his wife. A mere statement before the court by the husband, stating that he divorced his wife on a particular day, would not suffice. All the prerequisites have to be fulfilled before a Muslim husband can divorce his wife.

If the AIMPLB was oblivious of all the above legal precedents, they should have at least heeded the recent ruling of Bombay High Court in Shakil Ahmad Sheikh v Vahida Shakil Sheikh (2016) case whereby the court reaffirmed that the plea taken by the husband that he had given talaq to his wife at an earlier date does not amount to the dissolution of marriage, unless the talaq is duly proved and was given by following the conditions precedent, namely, arbitration/ reconciliation and valid reasons.

The mere existence of a document like a talaqnama or the utterance of the word talaq thrice would not in any way dissolve the marriage if it is not preceded by arbitration, reconciliation, valid reasons for giving divorce, observance of iddat and payment of mehr, and the same are required to be pleaded and proved before the court.

In the wake of aforementioned observances, it can be safely concluded that the fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB, which claims to be the sovereign body on Muslim Personal Law without having proper knowledge about Quranic injunctions and legal precedents on triple talaq. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue so as to reap political dividends.

It is also a fight against the insidiousness of media which projects every single case of triple talaq as a case of Islamic law vs. secular law, the archaic vs. modern and the oppressive vs. the civilised, while conveniently overlooking the legal precedents against it.

References:
Agnes, F. (2016): “Muslim Women's Rights and Media Coverage”, Economic and Political Weekly, Vol LI No 22, pp. 13-16.
Ali, Arshad (2016): “Triple talaq is a non-issue, brought up to implement uniform civil code: AIMPLB”, The Indian Express.
Anusaya, Ila S. (2016): “Muslim Women Do Not Want Triple Talaq Banned, Says AIMPLB”, The Wire.
Anusaya, Ila S. (2016): “Women’s Rights Activists Rally in Support of Shayara Bano”, The Wire.
Engineer, Asghar A. (2004): “Abolishing Triple Talaq. What next?” Economic and Political Weekly, pp 3093-3094.
Rizvi, A. (2016): “The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents”, The Wire.
Sanyal, A (2016): “Muslim Women Want Triple Talaq Out, 50,000 Sign Petition”, NDTV.
Siddiqui, Parwez I., (2016): “Triple Talaq: Muslim Law Board to contest Shayara Bano case in Supreme Court”, The Times of India.

(The writer is a research scholar at the Central University of Jharkhand, Ranchi).