While the demand to abolish triple talaq is seen as a Muslim woman’s liberation, it is also a Muslim husband’s need. Under the existing laws, doors of the Indian judiciary are shut to a Muslim husband on this issue. So, the Indian government’s constitutionally consistent position before the Supreme Court on the issue of triple talaq and related issues must be welcomed.
On 7 October, the government told the Supreme Court: “Gender equality and dignity of women are non-negotiable… constitutional values” and “Religious practices cannot be an impediment to rights (available under the constitution).” The government was clear: “practices of triple talaq, polygamy and nikah halala (Nikah halala is marrying a man in order to re-marry a former husband) cannot be regarded as essential part of religion and hence get no protection under fundamental right to religion.”
As per India’s predominantly Hindu social ethos, talaq is viewed as a social stigma, affecting women more adversely than men. Talaq is seen as a stigma also because Islam discourages it. Consequently, when a Muslim husband approaches a Muslim lawyer for advice on divorce, the lawyer dislikes it. Sometimes, Muslim lawyers request Hindu lawyers to offer the needful advice.
For informed legal advice, the Muslim husband is left at a crossroads where two paths are open for him: One, he is already taught to utter triple talaq, allowing the events to unfold; two, approach a cleric and seek his advice either before or after uttering triple talaq. As per both the Indian legal system and Islamic clerics, the Muslim husband has only one path to effect divorce: Triple talaq.
There are two types of triple talaq: One, he can utter triple talaq in one sitting in the presence of two witnesses; two, he can decide to give talaq in three monthly instalments. The first means killing a goat instantly and the second means slow butchering over three months. Muslim husbands who choose the path of monthly installments of talaq land their family members in fake dowry cases.
One legally practical way to end a marriage is for a Muslim to go to court and declare that s/he has left Islam, thereby automatically dissolving the marriage. Such persons are called apostates. In such cases, Islamic clerics prescribe beheading the apostates. So, this path too is not open, also because in the current atmosphere of bogus secularism practiced in India, the Indian state is likely to defend the clerics, not the apostate.
The complication arises because there is no law under which a Muslim husband can approach court for divorce. If a Muslim husband were to do so, his application will be dismissed by courts. India does not have written Muslim personal laws, but there are three Shariah-compliant legislation under which Muslim issues are decided in India.
The Muslim Personal Law (Shariat) Application Act, 1937: Under this law, Muslims can contract marriages and effect divorce through informal means deemed correct by Islamic clerics. A Muslim husband is forced “to give” his own divorce under this law. It is a dehumanising experience for a Muslim husband to do it himself. This 1937 law needs to be replaced by a Universal Bill of Rights for Indian Citizens (Ubric), a new law applicable to all Indian citizens.
The Dissolution of Muslim Marriages Act, 1939: This legislation was brought in to empower Muslim women to seek, not to give, divorce. Under this law, a Muslim woman can get divorce in two ways: First, she can get the dissolution of her marriage by approaching Islamic clerics; or second, she can get divorce by going to a court. Since divorce is disliked in Indian society, most Muslim women – instead of filing a case for divorce –first file a dowry harassment case. Both the 1937 and 1939 laws need to be replaced by Ubric.
The Muslim Women (Protection of Rights on Divorce) Act, 1986: Under this law, a Supreme Court order to grant alimony to the destitute woman Shah Bano was nullified. This law must be quashed. However, the commonly held view that former husbands should pay for past wives does not meet the democratic tenets of modern age. And no husband and wife, whether Muslim or not, should have any financial or other links after divorce.
However, it is a fact that divorced women are placed in an economically disadvantageous positions and therefore new ideas are needed to aid them. This writer has argued that insurance firms could offer government-mandated maintenance payments after divorce. Couples, Muslim or not, should pay the insurance premium during the course of marriage.
An insurance premium could be part of a bank account maintenance fee. (Such an innovative idea of an insurance pool was mooted within the context of the Civil Liability for Nuclear Damage Act, 2010. India has already launched a Rs. 1,500-crore national insurance pool for nuclear damages.)
Muslim women have landed in this situation because of personal laws advocated by religious groups such as the All India Muslim Personal Law Board and its female version called Bharatiya Muslim Mahila Andolan. Both of them are training Islamic judges and run parallel Shariah courts in India. Both these organisations must be outlawed. We need one Ubric for all.
In short term, the Bharatiya Muslim Mahila Andolan looks good to Hindu journalists because it is led by Muslim women and also because of its advocacy against triple talaq. However, it is essentially a Shariah-compliant organisation on numerous issues and poses a long-term threat to India’s democratic values by running a parallel legal system in the country.
In the context of the issue under discussion, the abolition of triple talaq will also empower Muslim husbands to go to courts and obtain divorce with dignity. Therefore, abolishing triple talaq is a Muslim husband’s right too. To the Muslim women: unless you abandon burqa, go to work and earn cash income, and importantly teach your grand-daughter to enter workforce, all of you will remain at the mercy of man’s money. Your liberty will not ensue.
In the United Kingdom, Muslims are shunning the mainstream legal system. They are running their own Shariah courts. Polygamy is increasing among British Muslims, as Muslim women are willing to become second and third wives. For long term, India’s people also need to grasp the fact that laws alone cannot solve all problems.
Former BBC journalist Tufail Ahmad is a contributing editor at Firstpost, and executive director of the Open Source Institute, New Delhi. He tweets @tufailelif