New Delhi/Kolkata: Thirty-year-old Ishrat Jahan from Howrah, heaved a sigh of relief when she got to know about the Apex court putting a 6-month stay on triple talaq and directing the government to come up with a law. Jahan, was kicked out of her house, when her husband pronounced talaq after 12 years of marriage. She, is just a single living example of how some misogynist clergies have taken the entire community for a ride, forcing several women like Jahan, to lead a life of obscurity.
Take the example of Safiya Khatoon (Name changed on request). Her one-month old marriage got terminated as husband, pronounced talaq, talaq, talaq to please his mother, who was having an issue with newly wed daughter-in-law, only to regret later. Being a believer of Hanafi sect (Muslims for whom instant triple talaq is held valid) she refused to both, reconcile or go for a Halala.
What is instant triple talaq?
Well, triple talaq that we all keep talking about is an age-old Indian practice, where the husband utter the T-word in a single go. “Most are unaware of the fact that instantaneous triple talaq or talaq-e-biddat, the most common type of talaq in India, is actually, un-Quranic and thus invalid,” says Mumbai-based lawyer Neelofer Akhtar, who has been advocating for Muslim women divorced by this methodology.
The most efficient and prescribed from of talaq as per Shariat is talaq-e-ahsan and talaq-e-hasan. These two type of divorce requires witnesses and gives the couple a time span to reconcile, failing which, talaq, can’t be revoked. These two types of talaq are also known as talaq-e-sunnah.
Why the Apex court had to intervene?
When petitioner Saira Banu approached the apex court, challenging the validity of her husband’s instant talaq, the issue gained national attention, as around that time, many Muslim women and non-governmental organisations were also questioning the same.
“Muslim clergies have never interpreted the Muslim divorce laws in its truest form. Instantaneous triple talaq, which is prevalent in India, is much looked down upon according to Shariah. In fact, the Prophet has also asked to abstain from it. But, there patriarchal society, was simply refusing to pay heed to the demands of Muslim women, despite the fact that most Muslim countries have made it redundant,” said Jahan.
What does the verdict mean?
Simply put, the SC verdict invalidates instantaneous triple talaq or talaq-e-biddat, however, talaq or divorce in sync with the Quranic way, have not been done away with. The 395 paged SC verdict, clearly states, “A perusal of the consideration recorded by us reveals, that the practice of ‘talaq-e-biddat’ has been done away with, by way of legislation in a large number of egalitarian States, with sizeable Muslim population and even by theocratic Islamic States. Even the AIMPLB, the main contestant of the petitioners’ prayers, whilst accepting the position canvassed on behalf of the petitioners, assumed the position that it was not within the realm of judicial discretion, to set aside a matter of faith and religion.” The verdict further reads, “It was however acknowledged even by the AIMPLB, that legislative will, could salvage the situation. This assertion was based on a conjoint reading of Articles 25(2) and Article 44 of the Constitution.”
The bench maintained that since AIMPLB, had agreed on to include a clause in the nikahnama, stating that the marriage under no circumstance would be dissolved by talaq-e-biddat. The SC verdict in clause number 199 states, “In view of the position expressed above, we are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States.”
Elaborating on the same, Mumbai-based advocate, Shoaib Memon said, “It means that the only grey area of Muslim marriage law – talaq-e-biddat will be done away with. But talaq-e-sunnah remains valid, as they are the correct and prescribed way of divorcing. Muslim rights have been protected by the Shariat Application Act. So, removing triple talaq in totality and polygamy from Muslim Personal Law wont be easy, as in doing so, the government would have to bring changes in other personal laws, which would be a difficult task to achieve.
Welcome verdict but not historic
Lauding the verdict, Azamgarh’s mufti Nizamuddin Misbahi, said, that the SC verdict in a way resonates, what the Quran speaks about talaq. “Its best to follow the prescribed, Islamic way of divorcing than going for this unIslamic way,” he said. While Akhtar, maintained that the verdict is a welcome one, but it definitely couldn’t be termed as historic. She said, “This verdict reiterates the Supreme Court and Mumbai High Court, verdict of 2002 and 2003 respectively. Not just that, it also reaffirms the fact that instant triple talaq is un-Quranic and in a way has silenced the clerics, who till date due to various reasons, were refraining from giving women, what rightfully was theirs. You, see, such is the state of our country and hegemony of clerics, that it took so many years for Indian women to get what was rightfully theirs, as per Shariah.”
She also suggested that the government should come up with directives or a law to set up a committee, which needs to be approached, when a Muslim couple is seeking divorce, like it has been set up in other countries with sizeable Muslim population.