October 27, 2016 2:22:09 am
Prime Minister Narendra Modi on Monday asked for the issue of triple talaq not to be politicised for the sake of votes, telling a rally in Bundelkhand: “Is it fair for a man to say talaq thrice over the phone and a Muslim woman’s life to be ruined?”
Instantaneous talaq — or talaq-e-bidat — now faces a challenge before the Supreme Court. It is important to understand, however, that this is different from the practice of talaq uttered thrice by the man, over a period of three months.
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Unlike Hinduism and Christianity where marriage has been traditionally viewed as a sacrament, under Muslim law, marriage is a civil contract based on consent as spelt out in the utterance of qabul. The ideal form of dissolution of this contract, based on the Prophet’s tradition, is considered to be talaq-ul-sunnat pronounced in ahsan form. Under this form, once the husband pronounces talaq, there has to be a three-month iddat period to factor in three menstrual cycles of the woman. This time is meant for reconciliation and arbitration. During this period, if any kind cohabitation occurs, the talaq is considered to have been revoked.
However, over the years talaq-e-bidat, a practice acknowledged to be bad in theology even by the clergy, has been upheld by the same clergy as valid and good in law.
Talaq-e-bidat has allowed men to pronounce talaq thrice in one sitting, sometimes scrawled in a written talaqnama, or even by phone or text message. Thereafter, even if the man himself perceives his decision to have been hasty in hindsight, the divorce remains irrevocable. The only way he can then go back to living with his wife is through a nikah halala. This requires her to go through the entire process all over again — remarry, consummate the second marriage, get divorced, observe the iddat period and then come back to him.
The Dissolution of Muslim Marriages Act, 1939, has codified a Muslim woman’s right to seek divorce (khula) which she can do by approaching the courts. However, when it comes to all other personal law matters including talaq, the Muslim Personal Law (Shariat) Application Act, 1937, states that the Shariat will govern Indian Muslims without specifying what exactly it is. Merely doing away with talaq-e-bidat may not entirely ensure absolute gender parity in matters of divorce since, unlike the woman, the man will still reserve the right to talaq without having to take the legal route.
For now, the overwhelming demand of women from the community is for doing away with talaq-e-bidat. “It’s one step at a time; we cannot expect a drastic momentum. Talaq-e-bidat is the most barbaric of practices. Once it is outlawed, gradually reform in all aspects of Muslim personal law can happen. This is the reason why we have been demanding a comprehensive, codified Muslim personal law,” said Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan, a mass organisation of Muslim women in India.
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