Instant talaq: Supreme Court majority judgment not enough

Last Updated: Tue, Aug 22, 2017 17:10 hrs
Muslim women

The Supreme Court declared 'Triple Talaq', a Muslim practice that allows men to instantly divorce their wives, unconstitutional in its verdict, in New Delhi. Image: AP

Finally the verdict is out and Supreme Court has banned the practice of triple talaq in India. The ban on the practice of instant talaq came with a 3-2 majority verdict. The apex court, in a 3-2 majority verdict, said that the practice of instant talaq is un-Islamic, against human equality and thus should be abolished.

While there were telltale signs that there will be a judgment of this kind, not many people were expecting it to be merely a majority judgment. They were thinking that the judgment will be unanimous.

A majority judgment

The judges of the Supreme Court were divided on the validity of the Muslim practice of giving instant triple talaq that instantly causes the marriage to become null and void. The five judge constitutional bench gave the verdict by 3:2 majority.

Justices Kurien Joseph, Justice Rohinton Fali Nariman and Justice Udey Umesh Lalit said that triple talaq has no basis in Islam. The three judges said that it was not an integral part of Islam and the trio went on to add that it should be banned as there was nothing in Islamic shariah supporting it.

On the other hand Chief Justice of Indian JS Khehar and Justice S. Abdul Nazir, the lone Muslim member in the Supreme Court bench contended that the practice of triple talaq is indeed integral to Islamic practices and thus it has constitutional backing.

Chief Justice J.S. Khehar, who led the Bench, in a minority judgment said that the talaq-e-biddat or instant triple talaq was in fact an integral part of Article 25 (freedom of religion). The chief Justice of India contended that the practice is in vogue for the last 1400 years by the Hanafi Muslims. It must be kept in mind that the majority of 200 million Indian Muslims follow Hanafi school of thought. The Chief Justice said that talaq-e-Biddat had become an integral part of the Muslim religion as practiced by Hanafi Muslims. India’s Chief Justice in his minority judgment went on to add that the practice of triple talaq actually does not violate Articles 14, 19 and 21 of the Indian Constitution at the moment. The lone Muslim judge of the Bench Justice S. Abdul Nazeer endorsed the opinion of the Chief Justice.

But the majority of the judges said that the triple talaq is against the basic tenets of Quran and thus not an integral part of Islam. The five judge bench said, “Talaq-e-Biddat (instant divorce) is manifestly arbitrary which allows a Muslim man to break down a marriage whimsically”.

Instant talaq is practiced by mainly Hanafi Muslims

Instant talaq is basically practiced by Hanafi Muslims. Muslims belonging to Salafi, Ahle Hadith and Shia schools of thoughts do not allow the practice of instant triple talaq. According to Salafi school of thought instant triple talaq will be taken only a single talaq. On the other hand, Shia Muslims believe that as triple talaq is illegal, it will be void and will not separate the couple.

Even Muslim organizations belonging to mainstream Hanafi school of thoughts have started opposing it. A few months ago, Jamiat Ulama-e-Hind, a leading religious organization of Indian Muslims, in a huge program in Ajmer said that triple talaq in a single sitting was completely un-Islamic. While making a historic announcement during the religious congregation, Mahmood Madani, the general secretary of the Jamiat said that triple talaq in single sitting is completely un-Islamic practice and that it should be done away completely. The occasion was also important due to the fact that Barelwi and Deobandi presented a united face in the Ajmer conference.

Instant talaq is illegal in many Muslim nations

Practice of instant talaq is banned in many Muslim majority nations including largely Sunni Muslim nations of Pakistan, Turkey, Tunisia and many other nations around the world.

Triple or instant talaq is not backed by Quran

Qur’an doesn’t sanction triple talq or instant talaq. While Quran calls the marriage contract as ‘mithaqan ghaliza’ or very strong agreement, the practice of triple talaq in a single sitting makes it the weakest link. It makes the whole institution of marriage as something that is based on husband’s whims. Several Islamic schools of thoughts believe there is no concept of triple talaq in Islam. They are of the view that even if a man divorces his wife thrice in one go, it will be counted as one and the couple will have enough time to reconcile with each other. Shias on the contrary believe when someone pronounces triple talaq in one go, it is not valid and will be void.

What Islam says about divorce?

Qur’an says that a husband should divorce his wife merely once and it mustn’t be during her periods. It can be done when they had no physical relation since the time of her last menses.

Renowned Islamic scholar late Mukhtar Ahmad Nadvi in his book Talaq: Kitab-o Sunnat Ki Roshni Mein Tafsili Jai’za says the practice of triple talaq was sternly denounced by the Prophet Muhammad. He says that Prophet termed the practice of divorce the ‘most hated’ thing allowed in Islam. The maulana says in case of marital dispute the couple should do their best to resolve their differences through dialogue. Islam then asks the two families to appoint an arbiter (hakam) each from the family of both man and the woman. The maulana says during the lifetime of the Prophet, in case of divorce, the husband needed to tell the word talaq three times, spaced over three consecutive menstrual cycles of the wife. The two had to live in the same house and not have intimate relation. This way the two had enough time to contemplate and resolve their differences. If they decide to revoke talaq, they can get back to each other. After uttering the talaq third time, they cannot go back to each other.

Will the judgment solve the issue?

While the Supreme Court judges might have delivered the verdict calling the practice of instant triple talaq illegal, it will continue to be practiced by many Muslims around the country due to religious reasons. Muslim women will likely separate from their husbands and not take the legal recourse from courts due to perceived religious sanctity that the practice has.

Is the Government really serious for Muslim women’s welfare?

Prime Minsiter Narendra Modi and many of his cabinet colleagues have hailed the decision of the Supreme Court. UP chief Minister Aditya Nath, too has hailed the verdict. But are they really serious for the welfare of the Muslim women? BJP has used the issue as an ant-Muslim tool to ridicule Islam and make an effort to attract Muslim women towards them. It is needless to say that Muslim women haven’t been fooled by the BJP.

If the BJP was really serious, it would have taken some tangible steps to improve the lot of the Muslim women. It can offer special incentives to Muslim women taking up higher education, given them quota in jobs and education and establish some good educational institutions catering to Muslim women. Alas, instead of doing anything worthwhile for them, it has been using it as a political tool to distract attention of masses from real issues confronting India and its people.

More columns by Syed Ubaidur Rahman:

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Syed Ubaidur Rahman is a New Delhi based writer and commentator. He has written several books on Muslims and Islam in India including Understanding Muslim Leadership in India.

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