In this blog post, Srishti Khindaria, a student of Amity Law School, Delhi, Guru Gobind Singh Indraprastha University, analyses the dark realities of the Triple or Oral Talaq system, and how it is being used as a tool to suppress women in the wake of the recent petition by the Bharatiya Muslim Mahila Andolan and the horrifying case of Saira Banu.
The word Talaq (Arabic for divorce) means “rejection” or “repudiation.” Under Muslim Law, it means immediate or eventual release from a marriage bond. In a narrower sense, it could be associated with usage of certain words by the husband but is associated with all kinds of divorce, particularly repudiation by or on behalf of the husband. In Talaq, the husband pronounces the phrase “I divorce you” to his wife. A man is given the possibility to divorce his wife thrice, with the choice to take her back after the first two. After the third Talaq, the divorce is irrevocable, unless under Halala.
The first Talaq is known is Ahsan or best method of divorce, and it is believed by many jurists that this must be given by the husband to the wife in her Thur or menses-free time. Such a Talaq is revocable during the period of Iddat– the waiting period. Should the husband not do so, the divorce takes effect upon expiry of Iddat. However, the divorced couple has the choice to remarry at a later date.
A second Talaq by the husband is known as Hassan (good), following the same procedure adopted in Ahsan. And he may once again revoke the Talaq before the expiry of the Iddat period, and the divorced couple may remarry at a future date- after the expiry of Iddat– if they choose to.
However, when the Talaq is given for the third time by the husband to his wife, the marriage is dissolved. There is no period of Iddat, no room for later reconciliation and the divorce is irremediable. The divorced couple can only remarry if the woman marries another man who subsequently divorces her, that is, she consummates her marriage with another man. This system of an intervening marriage is called Halala.
The system of Halala is often exploited, used a tool to overcome the Islamic prescription that prohibits remarriage of couples who have been divorced thrice. To many, it might seem amusing that a woman would wish to re-marry a man who has divorced her thrice already, but this is precisely where the harshness of another practice of Talaq known as Talaq-ul-Bidat comes to light. Talaq-ul-Biddat or Triple Talaq is where the husband repeats thrice “Talaq, Talaq, Talaq” or any similar connotations or adds the word “triple” to Talaq. This ends up having the same consequences as an irrevocable divorce and the marriage dissolves immediately. According to the Hanafi School of Thought Talaq-ul-Biddat is deemed “sinful and innovative.”[1]
Talaq-ul-Biddat is said to be an innovation undertaken to ensure that an incorrigibly acrimonious couple could part ways as quickly as possible. [2] Pointing to Quran 65:1, many Islamic scholars believe that a waiting period is essential between the three talaqs. However, the practice of Talaq-ul-Biddat or “triple talaq” at one sitting has been legally recognized historically and received consensus among the scholars fromfour Sunni schools of jurisprudence – Hanafi, Maliki, Hanbali, and Shafi. However, this consensus was broken by Ibn Taimiyah, a Hanbali scholar, who argued that three talaqs in one sitting counts as one. This “three equals one” position of Taimiyah was considered to be a minority view, but more than 20 countries have adopted it over the last century, with Egypt being the first. The Indian legal framework though still gives Triple Talaq validity.
The Fight against Triple Talaq in India
Several organizations- especially women’s groups- within our country have been fighting for the abolition of triple Talaq, calling it an “un-Quranic” practice, which is used as a tool to exploit women.India is one of the few countries that still recognizes oral and triple Talaq. The Muslim Personal Law (Shariat) Application Act 1937 governs personal laws of Muslims in our country. This personal law is uncodified and open to interpretation by the local clergy, thus adding to the agony of the women.
Very recently, the Bharatiya Muslim Mahila Andolan (BMMA), sought the support of the National Commission for Women to abolish the practice of triple Talaq owing to its widespread misuse, with instances such as husbands using emails and WhatsApp to divorce their wives, and around 50,000 Muslim women have signed a petition by the organization, to abolish this system of Triple Talaq.
“Muslim law is not fortified in India, which means that there is no law. It is open to interpretation by anyone. This is the main reason why Muslim men can get away with almost anything. It has become easier for them to divorce their wives in the digital era. We are encountering some cases now where the men are using digital media to divorce their wives”, says Noorjehan Safia Niaz, founding a member of Bharatiya Muslim Mahila Andolan.[3] Today, women are divorced by their husbands for the flimsiest of reasons, ranging from wearing spectacles to not being a good cook[4] and digital media divorce has only added to the suffering. What adds to the agony is that even the clergy is unsure of the validity of divorce using social media. A survey of about 5,000 women across ten states conducted by the Bharatiya Muslim Mahila Andolan (BMMA) found that over 90% of these women wanted an end to the practice of polygamy and triple Talaq. And of the 525 divorced women surveyed, 78% had been given triple Talaq; and 76 of these women had to practice Halala i.e.consummate another marriage so that they could go back to their former husbands. [5]
Saira Banu case
The case of Saira Banu has also added fuel to the fire for the fight against triple Talaq. Her story, as reported by the media, is heartbreaking and gut-wrenching. Saira, braved a rotten marriage, an abusive husband and several forced abortions that lead to severe physical and metal agony, for over a decade. Then, last year, her “husband” sent her a letter at her parents’ home- where she had been staying for almost a year, and inscribed on that piece of paper were the three words: “Talaq, Talaq, Talaq.”
Saira Banu, a sociology graduate, instead of accepting her circumstances, decided to fight. But instead of approaching the court and ask that it order her husband to pay her maintenance, she has started an even greater fight. Saira Banu has boldly challenged the validity of her husband’s actions of kicking her out at his fancy using the triple Talaq formula. She had filed a petition in the Supreme Court seeking the illegal status of not just triple Talaq but also polygamy and Halala.
The All India Muslim Personal Law Board (AIMPLB) is against any such actions and says it is outside the jurisdiction of the Apex Court to intervene in Muslim Personal Law.[6] However, the AIMPLB has been criticized by several known jurists for clinging on to outdated, draconian laws and medieval customs.Moreover, the Muslim Personal Law Board defends a practice that is in its true sense un-Islamic in the name of Sharia. And it is high time that their bluff must be called. [7]
It is true that triple Talaq did receive a sanction, especially during the reign of the second Caliph Omar, but what has been done now by the self-severing Muslim clerics is that the letter of the law has been adopted, while its spirit; junked. The Caliph Omar pronounced triple Talaq as a final resort in cases where the woman wanted to walk desperately out of a bad marriage, and their husbands were delaying the divorce by misusing the long-drawn procedure prescribed by the Quran. So it was for the sake of the women that the Caliph Omar had given legal sanction to Triple Talaq back in the 7th century. But what present day clerics have done is to twist it to suit their patriarchal ends.
The Road Ahead
“I think it should be stopped. Many a time, husbands get drunk and just say Talaq thrice. Then the woman is just left nowhere. This is not right,” said a student on condition of anonymity to an NDTV reporter. Such a Talaq renders wives extremely insecure and vulnerable regarding their marital status, leaving them in a constant state of flux and after such a divorce women are shunned both by family and society.
Saira Banu’s case provides a window into the lives of these victims and is a great opportunity to usher in a much-needed reform. The government and the Supreme Court must work towards appraisal of the condition of Muslim women. The Muslims Personal Law Board must be shown its place. Saira Banu must not meet the fate of Shah Bano, where the legislature succumbed to the heretical pressure groups within the community. The government must intervene.The bias in Muslim laws must be removed; a woman may seek a divorce from her husband under Khulla, but for this, she requires the permission of her husband whereas the man may simply utter Talaq thrice to obtain a divorce. It must be stated clearly that the Muslim Personal Law Board should fall in line with the modern secular law when it comes to the rights of women, or it should simply perish. It can’t be allowed to carry on with its whimsical and patriarchal ways in the name of securing the Sharia law at the cost of the basic dignity of women. Further, A high-level committee set up by the Central government to review the status of women in India has sought a ban on the practice of oral, triple and unilateral Talaq or divorce, as well as polygamy.
Conclusion
Lastly, the question that arises isif laws in countries- with majority Muslim population- like Egypt, Kuwait, Morocco, Iraq, Jordan, the UAE, Sudan, Yemen, the Philippines, and Syria have totally derecognized the concepts of triple Talaq and halala, then why should the All India Muslim Personal Law Board be allowed to parade these inhuman and illegal practices in the 21st century within a secular and democratic nation like India?
Footnotes:
[1]http://www.irfi.org/articles/articles_151_200/triple__talaq.htm
[2]http://scroll.in/article/806299/if-pakistan-and-21-other-counties-have-abolished-triple-talaq-why-shouldnt-india
[3]http://www.contributoria.com/issue/2014-11/54117a4bce8de2c86a00016f/
[4]http://www.contributoria.com/issue/2014-11/54117a4bce8de2c86a00016f/
[5]http://www.ndtv.com/blog/ban-triple-talaq-declare-muslim-personal-law-board-illegal-1396658
[6]http://timesofindia.indiatimes.com/india/Muslim-personal-law-outside-SC-jurisdiction-asserts-board/articleshow/51534701.cms
[7]http://www.ndtv.com/blog/ban-triple-talaq-declare-muslim-personal-law-board-illegal-1396658
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