Home Free Lab ReportsTriple Talaq – Islamisation of Women and Global Perspective Talaq is the unilateral right of the man to divorce his wife

Triple Talaq – Islamisation of Women and Global Perspective Talaq is the unilateral right of the man to divorce his wife

Triple Talaq – Islamisation of Women and Global Perspective
Talaq is the unilateral right of the man to divorce his wife. The husband can do this either verbally or in writing. That much is common knowledge. What isn’t, however, is that there are actually many different types of Talaq. The type of Talaq pronounced by the husband affects the type of separation that ensues and also affects the methods of reconciliation to be adopted by the parties if reconciliation does indeed happen.

Triple Talaq, also known as ‘Talaq-e-biddat’, which has been banned by the Supreme Court today, is considered undesirable and a ‘sinful’ in Islam, yet considered valid under Sharia law. This kind of instant divorce is not the norm within Islam, but a rarity. It means sinful innovation – this form was introduced by Ommeyad kings in order to circumvent the law. Under this form of divorce, the husband pronounces talaq thrice in one sitting. Divorce is instant and becomes irrevocable immediately when it is pronounced, irrespective of iddat. Thus, once pronounced, it cannot be revoked.

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The custom has been challenged in the Supreme Court of India as several women’s rights groups have also spoken out against the practice and its ill effects, especially on the women of the Muslim community. On the other hand, the Muslim Law Board has consistently said that triple talaq is a ‘personal law’ and thus, cannot be modified by the Central Government. The issue has given rise to a heated debate on the need for a Uniform Civil Code in India.
On December 15, 2017, the lower house, Lok Sabha, cleared the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to make the practice of triple talaq a criminal offence. As proposed, the victim in such case can seek the custody of her minor children as well as maintenance from her husband by approaching a magistrate after she has registered a complaint with the police. It was considered “manifestly arbitrary” and allowed a man to “break down (a) marriage whimsically and capriciously”. The government on January 28, said it would ensure the passage of the triple talaq Bill in the Budget session of Parliament starting on January 29, and asserted that it would talk to various parties for a consensus on the issue.

Talaq-e-biddat’ was a 1,400-year-old practice of ‘triple talaq’ among Muslims and set it aside on several grounds including that it was against the basic tenets of the Holy Quran and violated the Islamic law Shariat. With triple talaq being set aside, now Sunni Muslims, among whom triple talaq was prevalent, will not be able to take recourse to this mode as it would be “void ab initio” (illegal at the outset). Now leaving only two other modes of securing divorce – ‘talaq hasan’ and ‘talaq ahsan’. Under ‘talaq ahsan’, a Muslim man can divorce his spouse by pronouncing ‘talaq’ once every month in three consecutive months and this would be signified by mensuration cycles. As per ‘talaq hasan’, divorce can be given by pronouncing talaq “during successive tuhrs (mensuration cycle)” with no intercourse during any of the three tuhrs.

The pronouncement could be oral or written, or, in recent times, delivered by electronic means such as telephone, SMS, email or social media. The husband did not need to cite any cause of the divorce and the wife need not have been present at the time of pronouncement. After a period of iddat, during which it was ascertained whether the wife is pregnant, the divorce became irrevocable, In the recommended practice, a waiting period was required before each pronouncement of talaq, during which reconciliation was attempted. However, it had become common to make all three pronouncements in one sitting. While the practice was frowned upon, it was not prohibited.

Upon inspection of the Quran, it was found that it wasn’t mentioned in the Quran or Sharia law and was widely disapproved of by Islamic legal scholars. Many Islamic countries, including Pakistan and Bangladesh, have banned it, although it remains technically legal in Sunni Islamic jurisprudence.According to some Islamic scholars, triple talaq results in what is classed as a major divorce in Islam. In Islamic law, it was based on the belief that the husband has the right to reject or dismiss his wife with good grounds. Since the Holy Quran is the “first source of law” and pre-eminence has to be given to it, it meant that sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. As Islam cannot be considered as anti-Quran.

Muslim family affairs in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937, also known under the branch of “Muslim Personal Law”. It was one of the first acts to be passed after the Government of India Act, 1935 became operational, introducing provincial autonomy and a form of dyarchy at the federal level. It replaced the so-called “Anglo-Mohammedan Law” previously operating for Muslims and became binding on all of India’s Muslims. In traditional Islamic jurisprudence, triple talaq is considered to be a particularly disapproved, but legally valid, form of divorce. Muslim marriages in India are considered to be a private matter unless the couple decided to register their marriage under the Special Marriage Act of 1954.
It was held by Justice R F Nariman, whose views were concurred with by Justice U U Lalit, was in agreement with Justice Joseph, that this form of Talaq must, therefore, be held to be violative of the fundamental right contained in Article 14 (right to equality) of the Constitution of India. Upholding the NDA government’s view that the practice was against fundamental rights like equality and dignity, Justice Joseph referred to the four sources of Islamic law — Quran, Hadith, Ijma and Qiyas. In Addition, Women’s rights groups in India have slammed the practice, saying it deprives wives of their rights and can leave them as social outcasts. The Supreme Court cases were filed by five Muslim women who had suffered a triple talaq divorce and two rights groups.

The All India Muslim Personal Law Board (AIMPLB) the non-government organisation had been witnessing resentment among Muslim women, especially the victims of triple talaq. Many of such women had filed PILs in the apex court challenging the provision of triple talaq and nikah halala, terming them “regressive”. The Board, however, opposed the PILs and filed a counter affidavit in the apex court defending the Muslim Personal laws and triple talaq. It had recently told the court that the pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of the judiciary.

The petitioners had demanded scrapping of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as they said it was unconstitutional and violated the fundamental rights guaranteed under Article 14 of the Constitution. Various stakeholders, including All India Muslim Personal Law Board and political parties, had been asked to give their response. The law commission had received 40,000 responses on UCC. As Section 3 of the Shariat Act prescribed that a person willing to avail the benefit of being governed by the Muslim personal law and the provisions of Section 2 on marriage, dissolution of marriage and talaq, etc should declare in a prescribed form before a prescribed authority that they want to obtain the benefits of Section 2 of the Act. The mere utterance of talaq thrice wasn’t sufficient ground for divorce even under the Shariat law, as it reads.

The Board had also claimed that the validity of Mohammedan Law, founded essentially on the Holy Quran and sources, could not be tested on the particular provisions of the Constitution. The Centre had on October 7, 2016, opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims, and favoured a relook on grounds like gender equality and secularism. The government, which had earlier submitted an affidavit before the apex court opposing triple talaq, had argued that the issue of triple talaq deals with only gender justice and thus it is a question of protection of fundamental rights of Muslim women. It said that practices that are discriminatory should be regulated under the law. The plea of sanctity under Shariat is totally misplaced, The Supreme court had taken suo motu cognisance of questions whether Muslim women faced gender discrimination in the event of divorce or other marriages of their husbands. On 13 May 2017 on the second day of its hearing on the contentious issue of triple talaq, the Supreme Court today said the instant, oral divorce prevalent among Muslims is the “worst and undesirable form” of the dissolution of a marriage, even though there were schools of thought within Indian Islam which termed it as “legal”. On 8 December 2016, The Allahabad High Court today said the practice of ‘triple talaq’ within Muslims is unconstitutional and violates the rights of Muslim women. “No personal law board is above the Constitution,” the High Court said.

In March 2017, over 1 million Indian Muslims, a majority of whom were women, signed a petition to end instant triple talaq. The petition was started by the Muslim Rashtriya Manch, an Islamic organisation affiliated to the right-wing Hindu nationalist organisation Rashtriya Swayamsevak Sangh. A number of the petitioners have argued that triple talaq violates their fundamental right to equality before the law, to non-discrimination on grounds of sex and to life and liberty. As Article 25(1) explicitly states that freedom of religion is subject to other fundamental rights. The Allahabad high court recently ruled so as well in the Shayara Bano case; she is also one of the SC petitioners.

Another argument against subjecting personal law to the constitutional validity test—that it is not a “law” as defined by Article 13 of the Constitution—has a precedent in the 1951 Bombay high court judgement in State Of Bombay v. Narasu Appa Mali. But as Gautam Bhatia has argued convincingly, this rests on far too narrow a reading of Article 13—one that can and must be overruled by the SC. And that brings about the argument about the uniform civil code. Much of the opposition to the SC’s taking up the triple talaq issue stems from the fear that it is a backdoor for bringing in the uniform civil code. Arguments that this will stifle diversity and result in the imposition of Hindu laws are specious. As B.R. Ambedkar pointed out in the Constituent Assembly debates, uniform criminal laws and what amounts to a uniform civil code in the majority of civil law areas other than personal law already exist. They have not compromised religious freedom in any fashion. Nor is the need for a uniform civil code solely to do with Muslim personal law. Inequities exist in the other personal laws as well, from Hindu to Parsi.

Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB), a non-governmental body that supervises the application of Muslim personal law. It propagates that the State does not have the right to intervene in religious matters. The AIMPLB’s lawyer Mr Kapil Sibal had said that through instant talaq can be thought of as a sin by some, but that “setting the validity of customs and practices of a community is a slippery slope”. Kapil Sibal cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition and customs of communities.

The bench that heard the controversial Triple talaq case in 2017 was made up of multifaith members. The five judges from five different communities are Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim. The Supreme Court has had to examine whether Triple talaq has the protection of the constitution—if this practice is safeguarded by Article 25(1) in the constitution that guarantees all the fundamental right to “profess, practice and propagate religion”.

In a 397-page ruling, though two judges upheld the validity of Instant triple talaq (talaq-e-biddat), the three other judges held that it was unconstitutional, thus barring the practice by 3–2 majority, Only three in a panel of five judges ruled in favour of a ban: one did so by arguing that instant divorce contravened not India’s constitution but Islamic law. The Supreme Court (SC) on Tuesday held the Muslim practice of triple talaq unconstitutional and struck it down by 3:2 majority. The SC said triple talaq violates the fundamental rights of Muslim women as it irrevocably ends a marriage without any chance of reconciliation. The bench asked the central government to promulgate legislation within six months to govern marriage and divorce in the Muslim community.

There had been 100 cases of instant triple talaq in the country since the Supreme Court judgment terming the practice as unconstitutional, stated the minister of law and justice Ravi Shankar Prasad in Lok Sabha, which leads to the Modi Government formulating a bill and introducing it in the Parliament On 28 December 2017, Lok Sabha passed The Muslim Women (Protection of Rights on Marriage), Bill, 2017 The government decides to use the Ordinance route to implement the new legislation on triple talaq. It will move an Ordinance to introduce the new law made by the Modi government to punish those who indulge in the archaic and draconian instant talaq. As per it, a sentence of three years can be awarded to those who indulge in instant triple talaq, it was cleared in the Lok Sabha but stuck in the upper house (Rajya Sabha).
Islamisation of Women and Global Perspective
The nebulous revivalist movement termed Islamism is one of the most dynamic movements within Islam in the 20th and 21st centuries. The experience of women in Islamist states has been varied. Women in Taliban-controlled Afghanistan faced treatment condemned by the international community.According to recent data, there are more women accepting Islam in the United States, than any other group. The same can be said of Canada, England and many other places. A recent survey Al Jumuah magazine have conducted in the Dominican Republic showed that about 75% of those who accepted Islam among the natives were women.
There is considerable variation as to how the above sources are interpreted by Orthodox Muslims, both Sunni and Shi’a – approximately 90% of the world’s Muslim population – and ideological fundamentalists, most notably those subscribing to Wahhabism or Salafism, who comprise roughly 9% of the total. In particular, Wahhabis and Salafists tend to reject mysticism and theology outright; this has profound implications for the way that women are perceived within these ideological sects. Conversely, within Islamic Orthodoxy, both the established theological schools and Sufism are at least somewhat influential
The Women’s Decade 1975 – 1985, declared by the UN, the women’s convention of 1979, the conferences in Kairo 1994 and in Beijing 1995 are examples of attempts from the part of the international community to discuss and come to terms with these problems. Both tendencies mentioned above concerning Human Rights and globalisation have been present in this process. International, regional and local NGOs have taken an active part in discussions, and there has been lots of cooperation worldwide in what has been seen as an issue of common, global, interest. One of the principal areas for discussion has been the question of Muslim women’s human rights, and the role of religion in this respect. The problem is often presented as primarily an ideological one, a conflict between a local tradition, Islam, and the global demands for Human Rights. Two ideal-typical tendencies are usually set up in the discussion on religious responses to globalisation in general. On the one hand is the ‘fundamentalist’ religious claim to legitimacy for the local tradition over and above the global, and on the other hand, there is the ‘liberal’ religious endorsement of the global, resulting in an ecumenical, flexible and tolerant approach. These two tendencies, the ‘fundamentalist’ and the ‘liberal’ can with the little problem be used to structure parts of the contemporary Islamic discourse on Women’s rights into two ways of Islamisation of women’s human rights.

Women were forced to wear the burqa in public, as human rights survey demonstrates that harassment and physical abuse of Afghan women and their family members by Taliban officials are extremely common in Kabul. Sixty-nine percent of women reported that they or a family member had been detained in Kabul by Taliban religious police or security forces. Twenty-two percent of women reported a total of 43 separate incidents in which they were detained and abused. Of these incidents, 72% followed non-adherence to the Taliban’s dress code for women. The majority (35/43, 81%) of detentions lasted less than one hour; however, 36 (84%) resulted in public beatings and one (2%) in torture. They were not allowed to work, and also not allowed to be educated after the age of eight, witnesses have claimed the presence of public execution (stabbing and beheading), with incidents of two men convicted of murder by the Taliban Shari’a court at the sports stadium and another day the amputation of an alleged thief’s hand and the flogging of an eighteen-year-old girl who was accused of having a romantic relationship.But in recent years, the number of young Iranian women who have been admitted to universities has risen dramatically. In the last five years alone, Iranian women have made up more than 60 percent of university entrants. It’s a surprising development for the Islamic Republic. Experts say education has a strong social value for the country’s women, who see it as a way to gain greater freedom. The growing numbers of young women in Iran’s universities are considered a phenomenon that has already brought substantial change to the country’s traditionally male-dominated society. Iranian women are using university studies as a way to leave home, postpone marriage, and generally earn greater freedom and social respect.

Liberal Muslims have urged that ijtihad, a form of critical thinking, be used to develop a more progressive form of Islam with respect to the status of women. In addition, Islamic feminists advocate for women’s rights, gender equality, and social justice grounded in an Islamic framework. Although rooted in Islam, pioneers of Islamic feminism have also used secular and western feminist discourses and have sought to include Islamic feminism in the larger global feminist movement. Islamic feminists seek to highlight the teachings of equality in Islam to question patriarchal interpretations of Islamic teachings.
As noted the incredible amount of flexibility of shariah law, which can offer greater protections for women if the political will to do so is present, The Shoura Council, Saudi Arabia’s consultative body, has been working since 2007 to codify Sharia to give consistency in criminal and domestic cases. This allows the courts to establish case precedents, thus taking away much of the power of judges who must refer to the rule of law instead of tribal customs and their own personal opinions. While codification of Sharia will be a giant leap forward in Saudi judicial reform, it also might be a case of being careful about what women activists wish for. Middle East scholar Coleman notes: “Islam guarantees women many rights, but ultimately there are limits in interpretation. There are more progressive interpretations that can get women very far, but there will always be those who want a more conservative interpretation that will impede rights for women. Protecting those universal rights ultimately depends on a separation of the religious and legal spheres.” Saudi women lay claim to the undisputed basics in the Qur’an and Sunna: the right to an education, inheritance and not to be subject to forced marriage. Radwan said a common law would prevent male family members who disagree with the choices of sisters or other female relatives, choices that are their rights in the first place.

In another respect, globalisation can also be seen as undermining the very concept of universal human rights. Like other ‘truths,’ these rights are revealed as relative and constructed and not absolute and eternal. Globalisation highlights the fact that they are a result of a fairly local, predominantly European experience, a globalisation of a Western particularity. States, groups and individuals around the globe have criticised the demand for respect for human rights as just another form of cultural imperialism from the part of ‘the West’. It is stated in the UDHR and in Human Rights conventions that discrimination on the basis of sex is a violation of human rights. This could be seen as a fairly clear statement that rules out the possibility to speak about specific ‘women’s human rights’. However, feminist critique of the concept of Human Rights and of Human Rights legislation has highlighted some problems. Most of the oppression experienced by women worldwide, however, takes place in the private sphere. The distinction between public and private serves to uphold power structures that favour men and disfavours women. Furthermore, there are issues specific to women, for example, reproductive rights, that has to be considered in a discussion on human rights.

Islam provides women with rights, but these are in some aspects different from the rights of men. Especially the notion of gender-equality before the law is seen to clash with an objectified view of religion as not only belief but also an eternal law. This kind of argument is widely used in defence for Muslim state’s reservations to the ‘Women’s convention’ of 1979. There are diverse pamphlets, books, articles, speeches etc discussing ‘Women’s rights in Islam’, and also in so-called ‘Islamic alternatives’ to Human Rights documents. Common to most of these discussions is the construction of an ‘Islamic’ view on gender-equality (or in some cases equity) with distinctions. This construction is forwarded as more real, juster, and more natural than global versions of gender equality without distinction.Various lists of women’s Islamic Rights tend to be moulded apologetically more or less upon the basic idea of men’s and women’s equal rights, but with qualifications in certain areas. The scope of these qualifications vary. Far from being a total rejection, it is an attempt to the appropriation of parts of the global ideal as ‘Islamic’.

Globalisation theories usually hold that in the face of globalisation of culture and of ideas local traditions are transformed in response to the global. The two forms of ‘Islamisation’ of women’s human rights can be analysed in this context. The instrumental utilization of what is perceived as a local tradition by the SIGI has as its goal the acceptance of women’s human rights, the localisation of the global. It is a response to the relativising effect of globalisation upon the idea of Universal Human Rights, and the rhetorical use of this relativisation. In the process, a local tradition is constructed in order to fit the needs. Though claiming that nothing has actually changed in the understanding of Islam, the ‘fundamentalist’ version of the Islamisation of women’s human rights is also a result of and a response to globalisation. The local tradition is also in this case constructed in relation to the global. While rejecting the global idea of equality without distinctions as incompatible with Islam, parts of the discourse on gender equality and women’s rights are appropriated as ‘Islamic’, and already inherent in the local tradition. While in the case of SIGI the attempt is to legitimise the global while utilizing a constructed local tradition, the ‘fundamentalist’ position utilizes a selection of global values, and the global language of women’s rights, to legitimise Islam, not only to non-Muslims but also to Muslims who like other inhabitants of earth are affected by the globalisation that relativises local ‘truths’.Conclusion
The Islamic idea of community (that of Ummah), established by Muhammad, is flexible in social, religious, and political terms and includes a diversity of Muslims who share a general sense of common cause and consensus concerning beliefs and individual and communal actions. And despite the challenges women face on a day to day basis regarding ‘gender discrimination and even the practice of female genital mutilation in modern times, we have continually seen women’s rights groups that have been committed to continuing the fight for better legal protections for them, among others, including domestic workers and victims of sexual harassment.

The contemporary discussion on women’s human rights and Islam is not limited to Muslims. Whether or not Islam supports women’s human rights seems no longer to be a question to be solved only by an internal dialogue. The support from human rights activists, and from parts of the UN system, for the instrumental use of Islam to forward human rights has been noted. SIGI, for example, is not a ‘Muslim’ organisation, but for pragmatic reasons supports a certain understanding of Islam. Non-muslim journalists and human rights activists, accepting a ‘liberal’ interpretation of Islam, have for example criticized the Taliban in Afghanistan not only for violating women’s human rights but for acting against the spirit of Islam as well. Likewise, the ‘fundamentalist’ rejection of certain parts of Women’s Human Right with reference to the demands of sharifia has in some cases been accepted by non-Muslims as valid. There is a global choice of sides going on here. This is another aspect of the globalisation of the question of Islam and women’s human rights that might in itself be interesting to investigate further.

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