By BIBHUTI PATI
It all depends on approaching an issue with a correct perspective and right reasoning. There are many issues which have led a few sections of Muslims to make wrong use of practices. Pushing thereby the entire Islam and its followers to great shame blemishes and misunderstandings. Take for example, the case of ‘jehad’ which in Islam has its positive meaning of fighting with the inferior self for its purification. But a section of Muslims have taken the negative meaning of cleansing the world of infidels to lead Islam to its earlier state of purification.
During the pre-Islam period known us the age of Jahaliat (ignorance) woman had no status and was used as a chattel in the male dominated society. And Arab could marry any number of women and kick them away from his house as per his whims. Though talaq was is vogue for the protection of divorced wife, but no one took recourse to this in order to keep the divorced wives in a sate of perpetual torture, suffering and helplessness. For these Arabs a women lived on the sheer pleasure and mercy of men.
Among the most important reforms that Islam under the enlightened leadership of Prophet Mohammed (PHUB) made was raising the social, marital, and gender status of women in the society. Not only was the woman declared as the mother Ummat, but was also given equal place in all the walks of social life. This kind of sweeping informs for the famine gender naturally questioned the inhuman treatment of husbands towards their wives particularly relating to the tradition of talaq and thus followed the various injunctions through the different surats of the holy Quran that restricted the innumerable number of talaq used by husbands to three different kinds along with a few conditions and with a significant observation that among all the approved laws of Sharia, talaq, leading to a complete disruption of family life, is the most undesirable and worst of Islamic Laws.
The first talaq, is known as talaq Ahsan or a talaq that keeps the door of reconciliation open for a period of one month or three months following one or three menstruation periods during which the couple may ponder and reconcile to start a further happy life. Secondly there is the talaq Hasan that enables the husband to utter one talaq in two different months in a state of purification after intercourse with his wife and thereafter, the couple may rethink and reconcile together to withdraw from complete separation and again start living together to make a happy marital life. The third kind of talaq is known as talaq-e-Bidayat or instant (three talaq in one instant) which becomes final and closes all the doors of reconciliation. Here it may be noted that to utter three talaqs in one instant or in one sitting is also considered a sin as per a Hadish. The implication of the three talaqs in one instant has been stated in sura Baquar in the Holy Quran (Chapter-II Vrs 230). The Supreme Court in its judgment on 22nd August 2017 has chiefly focused on the triple talaq and by a majority of 3:2, has held this practice of talaq-e-bidat or triple talaq as unconstitutional and therefore set aside.
This split verdict of the Apex Court on the triple talaq has been received with mixed feelings but the real implications of the judgement has not been properly understood by a section of Muslim Community. Although most of the scholars and intellectual thinkers like Ifran Habib, Ram Chandra Guha, Wahajat Habibullah, S.Y. Qurashi and others have welcomed the verdict, a major section of Muslims of India thinks that it has interfered with the Sharia or has hit the fundamental rights of Muslim ensured in the Muslim Personal Law.
An imprisoned and objective analysis will reveal this is a narrow approach to the whole problem and needs to be corrected in order to re-orient our stand in a country like India and take the verdict in a correct spirit. In fact there are many positive points in the verdict which have, in a way, given strength to our stand on the mater.
First and foremost, the verdict has not questioned the validity of the practice of talaq in Sharia nor has it touched the different kinds of talaq mentioned therein.
Secondly the court, particularly the CJI and justice A. Nazeer have held that the triple talaq is and integral part of Muslim faith which cannot be questioned. Thirdly, in his brilliant analysis of the verdict, Prof. Faizan Mustafa, the Vice-Chancellor of Nalsar University, has correctly pointed out that “For the first time in Indian Judicial History, freedom of religion subject to restriction in articles 25 and 26 has been held to be absolute”. He further quotes the CJI who holds “that personal law is part of freedom of religion which courts are duty bound to protect”. According to the CJI “Personal Law is beyond judicial scrutiny” and since justice Kurian endorses this view, this part of judgement becomes majority view and binding in future.
Similarly the CJI in his verdict turns down the Central Government argument citing international conventions, saying, such conventions, if they were contrary to fundamental rights, cannot be implemented. The CJI also refused to strike down triple divorce as violative of public order, health and morality, or for being contrary to other fundamental rights such as the right to equality or the right to live with human indignity. Approached from this angle, it appears clean that the verdict is more in favour Muslim and much less against its usual stand.
Actually the verdict is not against the practice of talaq as ordained in the Sharia but against the misuse or wrong approach that the uneducated, insensible and bigot Muslim youths of take towards the whole issue. Talaq is an effective tool that has given provision for corrective measure chiefly to bring reconciliation and re-union of marital life among the sponses which always have positive bearing. The Sharia, as for instance, and the Quranic injunctions could never accept the provision for anything which is not based on reason or which is arbitrary leading to any kind of decision which is inhuman, arbitrary or unreasonable. Justice Rohinton Nariman points out this particularly fact when he says :
Triple talaq, which is irrevocable and is valid under Muslim Personal Law even when the husband assigns to reason for his action, is arbitrary, and therefore, unconstitutional. Justice U.U. Lalit endorsed this views and struck down validity of Triple talaq.
Justice Joseph also holds the same view when he observer : “Holy Quran nowhere endoreses irrevocable instant talaq therefore triple talaq is not a part of Sharia, and cannot be enforced under the Shariat Act-1937”. Hence Justice Joseph ruled, “What is sinful in theology must be held bad in law as well.”
Here the Hon’ble justices refer to the misuses and arbitrary pronouncements of triple talaq without reasons which are made chiefly on whims and evil impulsive motives which could never have any sanction of Sharia or Quranic injunctions.
It we objectively review the petitions of the five divorcees, namely Ishrat Jahan, Shayara Bano, Afreen Rahman, Atiya Sabri and Gulshan Parveen, we do find that these women have undergone a lot of sufferings, domestic tortures and abuses due to such triple talaq which, therefore, does point out the negative impact of this practice on the socio-economic life of Muslim spouses. In view of such background Justice Nariman and Umesh Lalit have pointed out that such form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. They have further pointed that triple talaq being arbitrary and whimsical, takes us to the pre-Islamic period against which the Quranic injunctions and Sharia have formaluated new process of talaq based reason and positive approach. Hence to them in the absence of good reason, no man can justify a divorce, for he then draws upon himself the curse of God. Indeed, Prophet Mahommed had declared divorce to be the most disliked law in the sight of God. The reason for this is not far to seek. Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and women, but it has severe psychological and other repercussions on the children from such marriage.
In other words while two judges namely the Chief Justice and justice A. Nazeer have concentrated on upholding the right to freedom, right to religion and above all, the absolute right of Muslim personal Law, the other three judges have pinned on the social abuses and arbitrary character enshrined in the triple talaq, which becomes the majority opinion that sets aside this practice.
Viewed from and objective and impartial angle, this verdict in no way jeopardizes the fundamental rights of he Muslim. Moreover by setting aside he triple talaq, which was most disked by the holy prophet and bad in the sight of God, must not be indulged by the spouses so whimsically or arbitrarily. Obviously this view comes close to the verdict of the Apex Court.
Finally it all depends on approaching an issue with a correct perspective and right reasoning. There are many issues which have led a few sections of Muslims to make use of wrong practices, pushing the entire Islam and its followers to great shame, blemishes and misunderstandings. Take for example, the case Jihad which in Islam has its positive meaning of fighting with the self for its purification. But a section of Muslim has taken the negative meaning of cleansing the world from the unbelievers to lead Islam to its earlier state of purification. This view has opened a pandora’s box for Islam as all kinds of terrorist activities are organized in the name of Jihad that has completely tarnished the clean and perfect image of Islam. No court of law, anywhere in the world, can uphold and justify the action of these terrorists for killing thousands of innocent people in the pretext of Jihad. Islam is a religion of peace upholding humanity and no action which is against humanity can be justified by Islamic principles. Similarly various social and domestic abuses which are committed through triple talaq are required to be done away with following the Islamic principles based the laws of humanity. Hence the Muslims in India should strive to seek unity among themselves in order to assert their right to religion, right to freedom and right enshrined in the Muslim Personal Laws and need not lose their time and energy in matters which have negative bearings in their social life.