Beyond Abolishing Triple Talaq

The Muslim Personal Law Board (MPLB) has taken a bold decision to review the practice of triple talaq atone go in its next meeting on July 4 in Kanpur. The Board undoubtedly deserves congratulations from all thosewho are committed to women's rights and had been campaigning for this essential reform. Hundreds of Muslimwomen have suffered because of this pre-Islamic practice which came back into Hanafi and Shafi'I Islamic lawfor reasons not to be gone into here.

It is unfortunate that the Sunni Barelvi ulama have threatened to launch an agitation if MPLB approves ofthe abolition of triple talaq at one go. They maintain that though it is bid'ah (i.e. a sinful form of divorce)nevertheless once pronounced thrice it is valid. They have stated nothing new. It was because of this view bythe Hanafis that triple divorce was practiced so long in India though it was abolished in most of the Muslimcountries. The Barelvi threat should not deter the members of MPLB from abolition of triple talaq though theBoard would like to evolve a consensus on the matter. It would be better if the MPLB persuades the Barelvis toagree.

It would be better if such consensus is worked out as Barelvis are in majority and if they do not agree theabolition of triple talaq by the Board may not be very effective. An overwhelming majority of Muslims in Indiafollow the Barelvi School. Despite the MPLB abolishing it, if someonewere to pronounce triple talaq, it will remain valid in the court of law unless it is abolished by law.So it is very important to ensure that it takes the form of legislation to ensure that it cannot be challenged in the court of law. 

Thus what MPLB has to do is to prepare a draft and give it to the government to enact. And as pointedout in the previousarticle on this subject, such a precedent already exists -- the Dissolution of Muslim MarriageAct was drafted by the ulama led by Maulana Ashraf Thanvi and others and enacted in 1939. But if such anexercise is undertaken by the MPLB, it has to be quite comprehensive.

There is great need for codification of Muslim Personal Law today. It should be done as early as possible.What is known as Muslim personal law today, it is interesting to note, was known either as Anglo-MohammedanLaw during the British period or simply as Mohammedan Law, enacted by the British. But after independence, theterminology changed and the Anglo-Mohammedan Law, in order to wipe out its colonial stamp, came to be re-namedas Muslim Personal Law. However, its contents did not change.

Thus mere change in its terminology was a political act, not a harbinger of social change as in otherMuslim countries. To de-colonise its name is not enough, one must de-colonise its content as well. During thecolonial period, women were not supposed to play an active role in socio-political matters, at least amongMuslims, though there were exceptions like Bi Amma (Mother of Ali Brothers) and many other women who playedimportant role in freedom struggle.

But now 56 years after independence, much water has flown down the Ganges and Muslim women are also in theforefront of many social movements. They are far more conscious today than they were during the colonialperiod. It is after great deal of efforts that the MPLB has agreed to abolish triple talaq. Very important asthis measure is, it is not enough. There is a crying need for a comprehensive legislation to be drafted underthe guidance of MPLB by the ulama and Muslim intellectuals and lawyers.

As I have often pointed out, Islamic law is so progressive that it can become the basis for a Uniform CivilCode. However, conservative Muslim society has dragged the Qur'anic pronouncements to its own level andintroduced, through human reasoning, many measures, curbing women's rights. Despite reforms in other Muslimcountries, women have not got the full measure of equality, which the ulama theoretically concede. Iniquitousmeasures vary from country to country.

In Saudi Arabia, for example, women are not allowed to drive and they are jailed if they drive. In Kuwait,until recently, women were not allowed to vote and had to wage struggle for years before this right wasconceded recently. There is debate raging in Saudi Arabia as to why women cannot drive while they can drive inother countries. Obviously issues like driving and voting were not in existence in early Islamic period. It isthe ulama in Saudi Arabia and Kuwait who, using their own reasoning prohibited these for women. And now womenare waging struggle in these countries against these measures and ulama are opposing it saying it is a 'sin'for women to drive or vote.

In many other Islamic countries like Indonesia, Malaysia, Pakistan and Iran, women drive and vote withoutany religious constraint. Qur'an is the only unanimous divine source for Muslims and it remains mostprogressive in respect of women's rights. Ideally, it grants equality between man and woman and should be themain source of legislation about women's rights.

The past interpretations of the Qur'an were constrained by socio-economic conditions and should not bebinding on the present and future generations of Muslims. All great Islamic thinkers have repeatedly made thispoint and have accepted the central role of ijtihad (creative interpretation). It is only our socialconservatism, not lack of theological sanction, which prevents our ulama from exercising it.

The attacks on Muslim identity by the Sangh Parivar also have been one of the reasons for resistance to anychange. These attacks may continue and demand for Uniform Civil Code persist and find legitimacy if there isno initiative for change. Its attacks may even continue after such initiative. Our initiative for change isnot motivated or restrained by these attacks. It should be based on the merit for change. Muslim women shouldnot suffer and should get justice.

My plea with MPLB and concerned Muslim intellectuals is to initiate measures for drafting a comprehensivelaw duly codified which will embody the Qur'anic spirit. Triple divorce and unregulated polygamy has oftenbeen the cause of attacks on otherwise quite progressive Islamic personal law. Polygamy may not be abolishedcompletely but strictly regulated as directed by the Qur'an. 

In fact both the verses on polygamy i.e. 4:3 and4:129 should be read together to understand the real Qur'anic intent. Even the first verse i.e. 4:3 requiresrigorous justice to all wives and ends by warning that 'if you cannot do equal justice then marry only one'. The second verse i.e. 4:129 makes it clear that equal justice is humanly impossible and do not leave thefirst wife in suspension. 

With such warnings, polygamy should not be practiced unregulated. All other Muslimcountries except Saudi Arabia and Kuwait have introduced strict measures to regulate it. Thus a draft lawshould introduce such regulatory measures and specify circumstances in which one could take a second wife, ashas been done in Pakistan. Those circumstances could be when the first wife is terminally ill, or medicallyproved to be infertile or barren and that too with the permission of the first wife and the court of law.

Today, though by no means is polygamy widely prevalent among Muslims (it is much more among Tribals, Dalitsand upper caste Hindus), still one finds cases of desertion of first wife and marrying another without givingjustice to the first wife. This should not happen and this is strictly prohibited by the Qur'an. The Qur'anpermitted polygamy to help women in distress like widows and orphans, not to do injustice to them. It is theduty of the ulama to educate Muslims in this respect.

Thus there is crying need for a new draft law which the MPLB can draft with the help of Muslim lawyers andintellectuals incorporating all these changes and ask the government to enact it. If it is properly drafted Iam sure, it will become a model law for others to follow as in Islamic law women enjoy all the rights whichmodern laws have given to women like widow remarriage, compulsory arbitration before divorce, inheritance,right to property, right to earn and so on. And all these rights are unconditional and a wife also has theright to lay down conditions at the time of marriage.

As such a law may take time since it is not easy to develop a consensus due to sectarian differences, theBoard in the meanwhile should launch an awareness campaign against misuse of polygamy etc. It should also seeto it that the amount of mahr paid is substantially high (part of which can be deferred) to discourage easyresort to talaq. The Qur'an itself encourages high amount of mahr. And mahr is woman's own untrammelled right.In case of divorce it can provide her with a measure of economic security. It is regrettable that in someMuslim communities mahr is only nominal and as low as Rs. 41 or Rs. 51.

In all these matters MPLB can play an important role as it has come to be acknowledged an authoritativebody and in a sense representative too. Though it is understandable that it cannot rush into things, it cancertainly cautiously proceed, further leading the way. If the women suffer after all half the umma suffers andthe Qur'an does not admit injustice in any case.

Courtesy, the Centrefor Study of Society and Secularism