For Justice’s Sake

The apex court has the opportunity to enforce the true Islamic law on divorce.

Written by Tahir Mahmood | Updated: March 23, 2016 6:32 pm
supreme court, Islamic law on divorce, Muslim divorce law, muslim group, Islamic organisation, human rights, identity rights, personal law, judicial legislation, india news, nation news The Supreme Court of India.

Bai Tahira, Fuzlunbi, Zohra Khatoon, Shah Bano, Shamim Ara, Iqbal Bano, Khatoon Nisa, Shabana Bano, Shamima Farooqui. This is not a list of female Muslim names taken from Wikipedia but hapless victims of the Muslim law on “triple divorce” who have, since 1976, fought legal cases right up to the Supreme Court to secure measly amounts of money for their sustenance. The stories of their miseries are etched in the pages of the law reports of India.

The latest among the countless Muslim women in the country suffering the pang of “talaq, talaq, talaq” is Saira Bano, who is now before the apex court. Instead of traditionally invoking judicial mercy of ordering the divorcing husband to pay her maintenance, she has boldly challenged the constitutional validity of his action of kicking her out by using the so-called triple divorce formula. Entertaining her plea on February 29, the court has sought the government’s response.

The practice of talaq was most certainly not introduced by Islam; it was rampant in the Arab society of the time and Islam tried to gradually reform in a very humane way. There is nothing in the law of Islam that suggests that the husband is free to pronounce talaq in an irrational or unreasonable manner. It allows talaq, subject to several conditions that are of a dissuasive nature, their purpose being to discourage
the husband from exercising his right without careful consideration.

The Quran enjoins men not to act in haste and to coolly think before deciding on talaq, since “you may dislike something about your wife but, maybe, God has put in her some good for you.” There is nothing in the holy book that shows this provision is discretionary.

Just like nikah, talaq too is not just a word the mere utterance of which will terminate the marriage, but a procedure which must be meticulously followed. Only if all the prescribed steps of this procedure have been duly undertaken will a marriage be dissolved. Unfortunately, traditional interpreters of Muslim law give effect to a talaq pronounced by a man even in sheer violation of the true Islamic law and procedure for divorce, calling it talaq-ul-bidat (innovative divorce). According to them, a talaq-ul-bidat is “sinful but effective” — a strange proposition rendered into English as “bad in theology but good in law.”

If, after pronouncing a talaq-ul-bidat, a husband wants to reunite with his divorced wife, a wholly unlawful practice, based on a very distorted view of the concept of halala, is to be followed. Halala is, in fact, a concept very different from what it is erroneously believed to be. The rule takes care of the rare eventuality of a thrice-divorced woman remarrying but ending up with a failed marriage once again. It is certainly not meant to force a divorced woman to suffer the indignity of sleeping for a while with someone else before returning to the man who has inflicted on her the cruelty of unilateral talaq not recognised by the Quran. Halala, as practised in India, is clearly repugnant
to the fundamental duty of citizens to “renounce practices derogatory to the dignity of women” under Article 51A of the Constitution of India.

The laws in Egypt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have totally derecognised the concepts of triple talaq and halala. It is high time India followed suit and saved countless Muslim families from devastation. The judiciary must act in the matter as no legislative reform seems possible.

If Saira Bano’s plea, now before the Supreme Court, is accepted, there will be nothing “un-Islamic” about it. On the contrary, the court would be enforcing the true Islamic law on divorce and answering the Quran’s call for absolute justice and fairness in society.

The writer is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, AmityUniversity.