With Government Affidavit, Triple Talaq Debate Moves into High Gear

The debate over triple talaq is morphing from a women’s rights issue to a larger legislative one, with proponents for a uniform civil code jumping into the fray.

New Delhi: The triple talaq debate, which has traditionally taken place on the planes of gender justice and ‘ijtihad’, or interpretation of Islam, has a third dimension which is largely political: the desirability or otherwise of a uniform civil code.

In its  intervention, the Centre submitted an affidavit to the Supreme Court on October 8, asking that triple talaq, nikah halala and polygamy – all part of Muslim personal law – be struck down, given that they fundamentally inhibit gender equality, which is uncompromisingly unconstitutional.

In a press release, the Bharatiya Muslim Mahila Andolan (BMMA) appreciated the Centre’s move, which they believe will place Muslim women in India on par withb their sisters from other religious communities.

Even as they welcome the Centre’s stand, some Muslim women worry that a debate which is fundamentally about women’s rights might end up  feeding into the wider political agenda of the Sangh parivar.

In contrast to non-believing feminists, the BMMA activists are asking for gender rights that they argue are well within the ambit of Islam. For them, the debate is about the nature of Islam itself.  Persistently, they have argued that these practices are un-Islamic, even as the All India Muslim Personal Law Board (AIMPLB) cries foul and says the demands that these women are making are un-Islamic.

 S.Q.R. Ilyas of the AIMPLB, told The Wire that the board is against the abolition of triple talaq and has already submitted an affidavit to the Supreme Court in opposition to the Centre’s move.

With the BJP at the Centre, the AIPMLB is tapping.into fears that gender justice is merely  a handle  to attack the Muslim community.

On April 15, 1994, Justice Hari Nath Tilhari of the Allahabad high court had held that triple talaq was discriminatory towards women and therefore, constitutionally, the divorce was not valid. On the face of it, it looked like a victory for progressive gender justice. But writing in Economic and Political Weekly in May, 1994, Gautam Navlakha pointed out that Tilhari was not so very just. Navlakha wrote:

The issue that is of interest is that justice Tilhari who pronounced such a momentous judgment is the same judge who delivered the infamous judgment which allowed darshan at the spot where communal-fascists of the RSS had demolished the Babri masjid and had then gone on to construct a make-shift temple. This judgment was based on the specious plea that Ram is a “constitutional entity” since his photograph was there in a copy of the constitution bequeathed to justice Tilhari by his father! One is also surprised because justice Tilhari has not shied away from describing himself as a “Hindu nationalist”

Tilhari was meant to be judging a land-ceiling case, but since the couple in question claimed to have divorced orally, the case became about the validity of their divorce and by extension, the extent of their jointly- and/or individually-owned land. His judgment on triple talaq in this context was seen as exceeding his purview.

In contrast, the BMMA believe the language of the affidavit filed by the Centre doesn’t seem to suggest an ulterior motive. But, following the Centre’s submission, some sections of the media have been pushing the idea of a uniform civil code under a #OneNationOneLaw campaign. On   Twitter, many eagerly took the bait to assert that Muslims shouldn’t be given ‘special treatment’ and should be governed by the same law as everyone else. However, they seem to have missed the fact that every religious community in India has its own system of personal laws; for instance, the Hindu Marriage Act.

In conversation with The Wire, the BMMA’s Zakia Soman emphasised the importance of the Muslim community having its own personal laws. “Like every other religious community, the Muslim community is also, constitutionally entitled to its own personal laws drawing from the community’s religious texts.”

With regard to the affidavit, she categorically stated that “credit must be given where it is due”. She also referred to a statement made by the law minister that the affidavit must be kept separate from the demand for a uniform civil code.

The problem with Muslim personal law, she said, is the lack of amendments.

The Shariat Application Act of 1937 has been retained unchanged. Soman said, “It doesn’t talk about any of the important aspects like the age of marriage, triple talaq, share in property, etc. It’s an archaic law which has never been reformed.”

Muslim personal law in India, she believes, has largely remained as patriarchal misinterpretations of Islamic religious texts and especially with regard to triple talaq, she said, “There is no mention of it in the Quran.”

This is not a new concern. In 2001, Anees Ahmed wrote, expressing the same concern. He identified two reasons behind the misinterpretations:

One, the courts hardly have any access to original and primary sources of Islamic law which are almost always in Arabic and Persian and, as a consequence, they have to rely on inauthentic and spurious translations and commentaries. Secondly, the legislators have also been slow, nay loathe, to correct this position for obvious fears of agitations and reprisals by conservative Muslims fearing interference in their personal laws. As a result customs and practices like triple talaq, denial of fair maintenance and share in familial property, reckless polygamy, etc, that have no foundation in primary religious texts have come to acquire legitimacy as Islamic and are being enforced by courts of law.

Furthermore, Ahmed clarified that there is nothing in the Quran or the hadith that denies successive generations the right to interpret Islamic law contextually. “Ijtihad,” or ‘independent reasoning’, wrote Ahmed, “is a provision in Islam that advocates the use of “one’s reason to formulate a rule of law”.

The Centre’s affidavit lists 10 countries with Islam as their state religion that have interpreted and codified the shari’a depending on what suited their needs. Soman suggests that a similar process is long overdue in India. “Islamic law in India should be codified based on Quranic frames and in consonance with the values of the constitution,” she said.

Effectively, this makes the debate not about what is Islamic or what isn’t, but about what kind of Islam fits the present needs of its adherents.

Ilyas, however, said that if there is a need for the law to be codified, it should be the AIMPLB that does so.

Critics of the board note that it is essentially a self-appointed body that has no locus too speak on behalf of all Indian Muslims and especially Muslim women.