“Marriage is the very foundation of the civil society and no part of the laws and the institutions of a country can be of more vital importance than those which regulate the manner and condition of forming, and if necessary of dissolving the marriage contract”.
-Lord Westbury in Shaw Vs. Gould
The apex court of India in August 2017, in its faithfulness to the aforementioned decree illegalized instantaneous form of triple talaaq. The court intervention aroused passions for it was construed by many as a direct interference in Muslim religious practice, which by mere tradition has assumed a biblical stature. Close scrutiny of this shackle-breaking judgement underscores the relevance of an objective analysis that is not swayed by any bias – personal, sectarian or otherwise. One must above everything else accept that an unwarranted practice that undermines the true spirit of Sunnah should by default be vehemently repudiated – at least for the sake of one’s devotion to Islam.
In the backdrop of the uproar caused by the judgement, there is a false concept that has come to be propagated by some scholars. Ironically the practice is advocated even by the so called Ulema, that the practice of dissolving marriage in Islam is mere misogyny. The concern gets more aggravated with the motivation to impose dominance of one Islamic sect over the other. The ‘hybrid- faith’ ideologues are desperate to advocate their preferential and choicest amendments to the Shariah law. It serves their clandestine objective of broader acceptance as representatives of progressive faith. The larger point that gets registered, from the people of faith is a staged struggle. A struggle to identify with the rhetoric of gender equality that earns the label of modernity, as opposed to the conservative ideology of ‘justice’ that Islam reconciles with. This further undermines the sanctity of the practice of talaaq.
It doesn’t come as surprise in a world where the cries of falsification and ostensibility are always momentous and loud enough to scuttle the whispers of truth. With this new normal it has become increasingly difficult to successfully pursue the truth which otherwise would speak for itself in ordinary times.
There is a clear evasion of truth from rightful contextualisation of Supreme Court’s decision. It is noteworthy to mention that barring a very few, most of the Muslim nations have illegalised the faulty invocation of talaaq-ul-biddah. India – which is home to the third largest Muslim population in the world, in this context has been superseded by other Muslim nations like Egypt, Iran, Jordan, Morocco, Sudan, Syria, North Yemen and Pakistan.
‘Amr -bil-Maroof’ – (Enjoin what’s right) is a fundamental obligation borne out of the Fiqh. It can only get justified by imposing on oneself the responsibility to understand Islamic values as faithfully as desirable. With the avenues available today, it’s almost effortless to access the treasures of true Islamic traditions. They are substantiated with references to ascribe authenticity such as to clear confusions and misunderstandings. Ironically it suits us more to be accommodating Deen in light of our culture and usage as opposed to otherwise.
The often bolstered rhetoric of ‘women victimisation’ seems rather weak when the right directives are alluded to from the Shariah itself. It’s unfortunately least highlighted across the doctored parleys aired in India. Well its essence precipitates in the fact that Shariah talks immaculately about and recognises many other forms of divorce than the hyped ‘unilateral talaaq’. Talaaq-e-tafwid (Holy Quran- XXXIII: 28) is a mode if dissolution where a husband before or during marriage delegates the power of pronouncement of Talaaq to his wife. She is free to ascribe it as and when she wants. Mubarrah (The Muslim law in India, Tahir Mahmood) is a single irrevocable divorce which is decreed with mutual consent of both the parties. Khula (Bukhari,Vol. 7, p.150) that literally means to ‘take off’ is a right empowering women to seek the end of marriage contract in case of an irreconcilable difference with her spouse. Such untenable is the essence of women’s rights in Shariah that khula, is decreed as final and irrevocable in its very first pronouncement. Even though the pronouncement is to be made by the husband, but in case of denial by him,she can approach the Qazi. With subsequent surrendering of her dower (if paid), the marriage will stand dissolved. Yet another power that vests in a woman for recession of marriage is through Faskh (Sec. 2,The Dissolution of Muslim Marriages Act,1939), invoked on grounds of non- payment of maintenance for two years, cruelty, etc., sought with an intervention of Qazi. Muslim jurists over and over have revealed an inarguably realistic approach of the Fiqh and Sunnah that draw surprising parallels with dynamics of modern thought. Lian, Ila, Zihar (Holy Quran XXIV: 4-9) are in tandem with this dimension of female rights diversified within Shariah. Invocation of these methodologies are made available in case the woman is falsely accused of adultery, there is a refusal to cohabit by her husband, or if the husband transcending all decorum compares his wife to any of his female relations with whom the marriage is prohibited. All forms of wife victimisation whether physical, mental or emphatic renders the marriage open to dissolution at the instance of the victim herself.
Admittedly the irony of Islam-preaching by our revered judiciary is but a ‘blessing in disguise’ for practitioners of the faith. But the truth bears greater intricacies than this. After all the generic consequence of this judicial decision isn’t an ‘ode’ but an ‘allegory’ of possibilities .There are lessons learnt; vibrations felt on both sides of the alley. How far is this ‘law in process’ workable? Is it in corollary with the primary stimulus that prompted it – ‘tightening the noose of female gullibility?’ It is well settled under the Muslim Women (protection of rights on divorce) Act of 1986 that a divorced woman is lawfully entitled to fair and reasonable maintenance within her Iddat under Shariah and in addition, to a suckling maintenance for two years from child birth (Section 3).
Post the triple talaaq judgement, the bill governing the subject proposes imprisonment for the Muslim husband pronouncing Talaaq-e-biddah (singly and irrevocably). Ill-founded wisdom of the makers is revealed in the fact that the design carved to secure women rights is only potentiating further victimisation of the families in the literal sense of the word. The Hon’ble court’s intent to protect interests of women pronounced with triple talaaq in effect tantamounts incarceration of the husband with sacrilege of marital institution. This shall push them down the abyss of despair.
All we can now do is hope this doesn’t meet the fate of a mere misnomer of a protection law. This was the case with Dowry and Domestic Violence (Prevention) Acts, not to forget the #Metoo laws. The misuse of the ‘protective’ tool must be charismatically shunted out so that the society may only benefit out of the law. The legislature and the executive can’t be exonerated from their stakes in preventing this ‘law in making’ from becoming a catalyst facilitating corrosion of the sacrosanct demeanour of marriage. Our present times call for shunting out the vindictive critique. Let’s keep our fingers crossed and wait for the harbingers of agony and apprehension to fade away with the test of time.
Author is a law student based in Kashmir. Opinions, views expressed are author’s own.