Divorced from Reality - Amending the Triple Talaq Law

Author: Sakina Yusuf Khan
Publication: The Times of India

Date: October 5, 2000

Ameena, a young telephone operator in Delhi, came home one evening to find her husband in a clinch with another woman.  Even before she could collect her wits, he turned on her and pronounced talaq thrice.  Ameena's marriage of six years was over.  Worse, he refused to pay her maintenance beyond the iddat period (three menstrual cycles).  Today, two years later, thanks to the Muslim Women (Protection of Rights on Divorce) Act of 1986, Ameena still awaits her due from her husband.

For Ameena and thousands of Muslim women in a similar predicament, things might change for the better after October 29 when the All India Muslim Personal Law Board's (AIMPLB) proposals for a change in Muslim divorce laws receive the formal nod from Board's general body.

Even though the details of the Board's recommendations are yet to be formally announced and the clergy's approval is awaited, this does suggest a significant change in attitude.

In the past, attempts at reform and progressive judgments have generated sharp reactions.  The Shah Bano case saw the then regime capitulating before the clergy on the issue of maintenance to Muslim divorcees.  In April 1993, the Allahabad High Court ruling describing talaq-e-bidat (instant triple talaq) illegal and un-Islamic was attacked by Muslim theologians and leaders.

Today, an ideal situation seems to be emerging -- instead of law courts and reformist organisations proposing changes in the Muslim Personal Law and getting stonewalled by fundamentalists -- the move for change is from within the community's orthodox leadership.  And it must unequivocally be welcomed.

The AIMPLB, the apex law-making body of Muslims on religious and personal issues, has suggested a number of reforms in marriage and divorce laws aimed at giving the community's women a better deal.  But how substantive are the suggested reforms? Will they actually ensure gender justice for the estimated 60 million Muslim women in the country who've borne the cross of antiquated Shariat law?

The most important of the suggested changes relates to the contentious issue of triple talaq.  On this, the Board's recommendation that Muslim men be ``restrained'' from pronouncing instant triple talaq falls far short of expectations.  There is no scope for any soft pedalling on this issue.  Nothing short of an express ban on the obnoxious practice of talaq-e-bidat will make any real difference.  The Board has little reason to be diffident on this issue for it would be within the Shariat's framework.  Talaq-e-bidat which gives Muslim men absolute and unilateral power of divorce is upheld only by the Hanafi School of Islamic Jurisprudence.  The other three schools -- Maliki, Shafai and Hambali -- do not approve of it.  Besides, talaq-e-bidat where the very word `bidat' means `undesirable or forbidden innovation' is not sanctioned by the Koran.  It was used as an emergency measure on a few occasions by caliph Umar who later regretted allowing it.

The fact that a host of Muslim countries including neighbouring Pakistan (where the majority, as in India, follows the Hanafi tradition) have done away with it lends strength to the need for its scrapping.

In Pakistan, a husband has to notify an arbitration council/Shariat court about the talaq immediately after its pronouncement.  The effect of the notice is to freeze the talaq for 90 days during which the council tries to bring about a reconciliation.  After the expiry of 90 days, the talaq takes effect unless there is a patch-up.  Moreover, the man has to apply to the council to marry a second time giving exact reasons why he wants to do so.

The Board would do well to prescribe similar provisions for Muslim men in India.  An arbitration council along the lines set up in Pakistan could go a long way in making divorce less traumatic for Muslim women.  Unless the Board clearly lays down that divorce cannot be a private unilateral action and must be carried out under the defined legal and judicial process, it will continue to be a long haul to justice for Muslim women.

Curiously enough, the Board does not appear to make a strong pitch for the payment of mehr (dower) to the divorced woman.  The Islamic position is that the husband ought to pay the mehr to the wife before the marriage is consummated.  In India, the Muslim man gets away without paying, even after divorce and remarriage.  If the Board is really serious about ensuring justice for women, it must recommend payment of mehr before the divorce becomes operative.

By far the most positive contribution of the AIMPLB's reform exercise appears to be the drafting of a model nikahnama (marriage contract) incorporating the rights sanctioned by the Shariat but hitherto denied to Muslim women in India.  For instance, the right to claim divorce or khula.

It is often erroneously believed in India that Muslim women do not have the right to divorce their husbands.  As marriage in Islam is a contract, a woman can incorporate in her nikahnama the right to divorce.  The contract can even specify the exact grounds on which she can seek divorce.  She can have the marriage dissolved without assigning a reason and without seeking the husband's or anyone else's consent, provided this clause is laid down in her nikahnama.

But the majority of Indian Muslim women are ignorant of this right.  As a matter of fact, except among the urban educated, a written nikahnama is almost unheard of.

The Board's insistence on a written nikahnama and compulsory registration of marriage would not only empower and protect women's interests but also make polygamy that much more difficult.

The Board has enumerated five grounds for divorce: cruelty, desertion for two years, refusal to provide maintenance for one year, separation for one year, or if the husband is of unsound mind or suffers from a contagious venereal disease.  While these are valid grounds for divorce, to make them meaningful the onus of proving any of these should not be put on the woman.

Champions of the faith have repeatedly claimed that Islam prescribes a progressive order for women.  The challenge for the AIMPLB is to ensure this by plugging the loopholes in the law.


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