One of the most current and controversial issues in the socio-political and legal discourses of India is the triple talaq bill, which was passed by the Rajya Sabha on July 30, 2019.
The bill had to face massive disagreement and opposition, as the Opposition had staged a walkout when it was passed in the Lok Sabha. The bill after the assent of the President and notification by the government, will replace the triple talaq ordinance which was promulgated in February last year.
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The passage of this bill has been celebrated as a major triumph for the Narendra Modi-led BJP government as it has been successful in institutionally removing a practice responsible for the suffering and oppression of a large chunk of the Indian Muslim women population. However, it is imperative to understand the intricacies of this bill turned act, in order to have a holistic perspective on the given matter.
To simplify the understanding of the issue of triple talaq and the bill, let us break up the perspectives of contemplation; this issue can be analysed from three perspectives—a. the historical and the religious perspective, b. the justice perspective and c. from the legalistic perspective.
Historically and religiously, the practice of triple talaq is antithetical to the Qur’an, and hence is actually only a manipulation to the religion. It is to be noted that though the practice of divorce is not much encouraged in Islam, however the right to be liberated from marriage is given to both men and women. (Qur’an 2:228). The religion provides for three types of divorce –
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- The Ahsan Talaq
- The Hasan Talaq
- The Bidat Talaq
The Ahsan talaq is the most widely accepted form of divorce among the Muslims. It is the most conventional form of divorce where negation of marriage takes place by a single pronouncement on the Muslim wife, in a state of purity, consequently there being no sexual intercourse between them.
After the pronouncement of divorce is made, the wife has to traditionally observe as what is known as ‘iddat’, a waiting period of about 120 days which is usually observed among Muslim women after they have been divorced or after the husband dies.
Also as it has already been stated that divorce is not favoured in the religion, hence to save the marriage, there is a provision of appointing two arbitrators during the iddat period, who would help to reconcile the differences between the couple. If the arbitrators are successful in uniting the couple back together, then the marriage is saved and no new nikah* ceremony is requires. It may be mentioned that this divorce is revocable. [i]
The Hasan talaq, is a process in which the Muslim husband pronounces talaq over three successive periods of purity (that is when the wife is not menstruating). The couple in this method, can reside together, if the husband wishes so until the final pronouncement of talaq by him. On and after the third and final pronouncement the marriage is disbanded and the talaq is immutable.
The third method of divorce, Bidat talaq is the most controversial one. In this method, the Muslim husband pronounces divorce to his wife in either a single irrevocable manner, when she is in a state of purity or in three simultaneous consecutive sentences, when she is in a state of purity.[ii]
This divorce is final and irreversible. This method of divorce is under the theological and intellectual scanner because, it is against the traditions of the Prophet and is also against the Qur’an, as the Qur’an mentions about declaring divorce two times and not three.
Islamic scholar Ashgar Ali Engineer validates this fact, when he states that there is no conception of triple talaq in the Qur’an. The Qur’an provides for two pronouncements of divorce, not three. (Surah 229 of Surah 2 in the Qur’an)
He asserts that the very idea of triple talaq can be traced to the pre-Islamic era, that is to the period jahiliya, (the pre-Islamic period of ignorance), when women were in an utterly subjugated state and they did not have any recognised rights.
According to a reliable Hadith, (Traditions of the Prophet) the Prophet (pbuh) during his lifetime had come across a man who had made a triple declaration of divorce on his wife, and this had greatly angered the Prophet. He severely reproached him of having made fun of the Qur’an, as the Qur’an does not provide for a triple declaration of divorce.[iii]
This type of divorce was evidently discouraged by the Prophet (PBUH) and was prohibited by him. This method of divorce was allowed and popularised by Caliph Umar. Fascinatingly enough Caliph Umar had seemed to be uncertain rather than liberal about this talaq. Yet he had allowed it to reign in certain unwelcome societal events during his times.
His intention was actually a socially beneficial and women-centric one, as he wanted to warn the men of practising an apparently un- Islamic practice; but the result of this was not as he had anticipated. [iv]
Now, when analysed from the second, namely the justice perspective the coming in of the triple talaq bill/ act, was/is a welcome move for the Indian Muslim population, as this provision has been largely misused and manipulated in the name of the religion.
Given that scores of women have suffered in the name of this practice, thus from the perspective of justice, the revocation of this provision was long overdue for the Indian state.
However, when analysed from the legalistic perspective, we witness certain inconsistencies. The opposition favours the abolition of the practice of triple talaq, but voices certain legal discrepancies in the bill/act – the crucial one being, the criminalisation of a civil aspect.
Given the fact that marriage is a civil contract in Islam, thus the procedures following it’s dissolution are also anticipated to be civil in nature.
The state is playing a dicey card by criminalising an aspect of the private and religious lives of the individuals. But again it is to be understood that, the controversy is not relating to the move of abolishing triple talaq, it is rather to the procedures resorted to abolish or negate the practice in the Indian society.
Women’s equality is imperative to a democratic state. And as Amina Wadud, African American Islamic feminist states – how can we have a democratic model in public life, if we have an authoritarian model in our private lives?
Thus, this move and intention of the government is actually a commendable one, in trying to empower the Indian Muslim women, however a subtle reorientation of the penal consequences, would make this act a more strong and rational one.
[i] T. Mahmood, Muslim Law of India, pg 115 as stated in Siddiqui and Zuberi
[ii] Gupta, S http://www.legalserviceindia.com/article/l393-Divorce-under-Muslim-Law.html, retrieved on 3rd July, 2013
[iii] Engineer A, A 2005, The Qur’an, Women and Modern Society, 2nd Edition, New Dawn Press Inc, UK, USA, India, pg 95
[iv] A Manual of Hadith. Pg 288 as stated in Siddiqui and Zuberi, pg 34
Dr Sabrina Iqbal Sircar is Assistant Professor in the department of Political Science in Pragjyotish College, Guwahati. She can be reached at: [email protected]