The question of triple talaq is often posed as an objective-type MCQ (multiple-choice question). We are given two options — support it (say yes); or oppose it (say no). The meaning of yes and no are also premeditated in this schema: yes refers to closed Islamism and no stands for gender equality and progress.

This dominant (and somewhat stereotypical) representation of the triple talaq issue is based on a few strong assumptions:

• Muslims of India constitute a single, closed, homogeneous community.
• This community is governed by a few established Islamic norms; and hence, it strictly follows Quran and Hadith.
• The Islamic clergy functions as the true representative. They have an ultimate right to interpret religious texts, and at the same time, speak on behalf of all Muslims.

These convictions, interestingly, are often presented to us as hard facts— not merely by the government, political parties and the ulema class, but also by those who prefer to be identified as ‘liberals’.  As a result, a media-centric discourse of political correctness emerges, which virtually freezes all possibilities to have a nuanced, meaningful discussion on the practice called triple talaq.

The purpose, therefore, of this article is to clarify and contextualise the ongoing public debate so as to make sense of various aspects of the talaq controversy.

Let us begin with a few frequently used terms.Triple talaq refers to a practice that empowers a man to divorce his wife by saying, talaq, talaq, talaq in one go. Mehr is a sum of money or other property to be delivered to the bride by the bridegroom at the time of the nikah as a condition precedent for solemnisation of their marriage, as specified in the Nikaahnama. The term, sharia or Shariat is a collection of rules and norms that have been codified following the Quran and Hadiths (saying and acts of the Prophet Mohammad). Since this codification is subject to various interpretations, there are various shariats among Sunnis and Shias.

Nikah-Halal is also a frequently used term. Once a woman has been divorced, her husband is not permitted take her back as his wife unless the woman undergoes nikah-halal, which involves her marriage with another man who subsequently divorces her so that her previous husband can re-marry her.

No sensible person can support these irrational social practices. However, one has to contextualise these social customs in the realm of Islamic religious debates for greater clarity. The practice of triple talaq, we must note, is legitimate among Sunni Muslims of Hanafi Shariat. Although we do not have adequate statistical information about the sect-wise population of Muslims in India, it is believed that Sunni Hanafis are in majority, at least in northern states. But there are four other schools of Sunni Shariat that exist, namely, Hanbali, Shafi, Maliki and Ahle-Hadith. These schools have their own interpretations of rituals and customs. All India Muslim Personal Law Board (AIMPLB) does recognise this Islamic religious plurality. In fact, one of the stated objectives of the AIMPLB is:

To promote goodwill, fraternity, and the feeling of mutual cooperation among all sects and schools of thought among Muslims, and to generate the spirit of unity and co-ordination among them for the common goal of safeguarding the Muslim Personal Law.

Two related questions are important here: Does AIMPLB determine the everyday conduct of the religiously diversified Muslim communities? If so, do Muslims, particularly the followers of Hanafi Shariat, practice triple talaq precisely because of their religious adherence to Islam?

The survey conducted by the Bhartiya Muslim Mahila Andolan (BMMA) is very relevant in this regard. The Report, entitled, No More Talaq Talaq Talaq: Muslim Women Call for Ban on an Un-Islamic Practice, which is based on an extensive survey, argues that 92.1 per cent Muslim women are not in favour of the practice of verbal triple talaq. The report also discusses 117 cases of triple talaq divorce. A close reading of these testimonies suggests that triple talaq is actually used by Muslim males as a legitimate religious weapon to subjugate women. The report finds dowry demands, not giving birth to male child and husband’s affair with another woman as some of the main reasons behind the divorce.

The report states that these societal-cultural issues produce and sustain various forms of patriarchal power structures. In order to justify this specific Indo-Muslim form of patriarchy, the report argues, a selective anti-women interpretation of Quran is employed. This is the reason why many women were deprived of the legitimateMehr amount after the divorce, which is supposed to be given to them at the time of marriage.  Evoking the centrality of the gender question, the report stridently contends:

Muslim orthodoxy in India does not want to entertain any talk of personal law reform and the Hindu right is pushing for the Uniform Civil Code (UCC). The truth is both these sections are coming from extreme points-of-view and both are equally patriarchal.

The report, thus, makes a powerful argument in favour of Islamic reform. It is asserted:

We have to begin a process of….social reform involving the whole community and the elected representatives. Indian democracy allows for regulation of family matters based on each one’s religious texts. The Christian and the Parsi minorities have taken recourse to these Constitutional provisions and enacted their personal laws accordingly. It is the Muslim orthodoxy signified in the self-appointed personal law body that is resistant to any reform within the agreed framework. It is anybody’s guess as to how representative this body is as far as the Indian Muslim population is concerned.

The Writ Petition filed by the Shayara Bano in the Supreme Court (Order XXXVIII, S.C.R, 2013, under article 32 of the Constitution of India, Writ Petition (Civil) 2016) also makes a similar argument (though unlike BMMA, it favours a Uniform Civil Code). There are five main demands made by Shayara Bano in this case:

• The divorce deed issued by her husband should be treated as illegal and unconstitutional as it violates the Articles 14, 15, 21 and 25 of the Constitution.
• Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 should be declared unconstitutional as it seeks to recognise and validate talaq-e-bidat (triple talaq) as a valid form of divorce, the practice of nikah-halal, and practice of polygamy.
• The Dissolution of Muslim Marriages Act, 1939 should be declared unconstitutional as it fails to secure for Indian Muslim women the protection from bigamy.
• The practice of polygamy should be declared illegal and unconstitutional.
• Muslim wife whose marriage has been terminated by a valid and legally recognised form of talaq by her husband may remarry her husband without an intervening halal marriage with another man.

These five demands should also be read in relation to the ongoing debate on UCC. The petition calls upon the state to implement UCC to secure and protect the constitutional rights of Muslim women. But, at the same time, the gender-sensitive interpretations of Islamic texts are also evoked to condemn the practice of triple talaq as an un-Islamic, inhuman and unconstitutional custom. In other words, Shayara Bano’s petition does not find any conflict between a gender-just UCC and Islamic religious identity of Muslim women.

Since Shayara Bano does not give up her Islamic identity and even goes on to challenge the claim made by the AIMPLB as the sole custodian of Islam, the AIMPLB finds it difficult to take a conventionalIslam-in-danger type position this time. The ALIMPB’s counter affidavit actually underlines an interesting unease.  The counter affidavit opposes the writ petition on five grounds. It says:

• The questions raised in the petition are matters of legislative policy.
• Personal laws cannot be challenged as being violative of Part III of the Constitution.
• Personal laws of a community cannot be re-written in the name of Social Reform.
• Article 44 of the Constitution of India which envisages a Uniform Civil Code is only a directive principle of state policy and is not enforceable.
• Muslim Personal Law is based on holy scriptures – Al-Quran and sources based on Al-Quran.

The last two justifications are important. The AIMLB poses the issue of UCC as legally problematic and religiously unacceptable. If AIMPLB believes that Islamic Shariat (or Shariats) constitutes a ‘complete way of life’, why is there no demand to implement Shariat laws in relation to those criminal cases in which Muslims are involved?

The affidavit also uses Islam selectively to counter Shayara Bano’s petition. It says:

Almost 90% of Indian Muslims are Sunni Hanafi, and the rest 10% consist of Shafais, and Ahle – Hadees. Shafais endorse the Hanafi stance on this issue that triple talaq in one go constitutes effective Talaq and results in the immediate termination of marriage.

But, what about Ahle-Hadees, who do not subscribe to this practice of triple talaq? It is worth mentioning that the general secretary of the Ahle Hadees, Maulana Asghar Ali Imam Mehdi, in a recent interview, said:

We oppose the idea of triple talaq. This is not in keeping with the Quran and Hadiths. We treat talaq said thrice in one go as one utterance only and taking full cognizance of how the Quran frowns upon divorce and advocates measured and patient attempts at reconciliation and the presence of proper ‘panches’ or wise counsel givers in the process, we are opposed to this form of talaq.

The affidavit does not pay attention to this kind of Islamic perspective and goes on to defend not only triple talaq but also the practice of halala, polygamy, and above all superiority of man over women.

It is clear that Muslim responses to triple talaq debate are highly diversified. The conventional ulema representing the AIMPLB support the practice of triple talaq on legal as well as religious grounds; the Ahle-Hadees sect of Sunnis opposes the practice of triple talaq on religious grounds without challenging AIMPLB directly; the BMMA opposes triple talaq on religious, social and cultural grounds, but it is not in favor of the UCC; and, the writ petition filed by Shayara Bano opposes triple talaq on constitutional and Islamic grounds for establishing a gender-sensitive UCC.
Interestingly, this political-religious heterogeneity is not taken into consideration while discussing the triple talaq issue. Perhaps, this is the reason why ‘talaq talaq talaq’ has survived as a permanent ‘Muslim issue’.

The author can be contacted on Twitter @Ahmed1Hilal.