Examining the Political Will Behind the Triple Talaq Debate: A Reading List

On 22 August 2017, the Supreme Court struck down the practice of triple talaq as unconstitutional. The Bharatiya Muslim Mahila Andolan, which had long undertaken a campaign to abolish triple talaq, considered the judgment a victory at the time. The legislative process of passing a bill in Parliament to protect Muslim women against triple talaq began in December 2017, and was tabled in the Rajya Sabha on 10 August 2018, but was not passed by the end of the monsoon session.

It has now been passed as an ordinance by the president with the explanation that “circumstances exist which render it necessary for him to take immediate action to give effect to the provisions of the said Bill with certain modifications.” Concerns have been raised that the amendments made to the Muslim Women (Protection of Rights on Marriage) Bill, 2017 render it weak and that criminalising a civil law is another way of targeting the Muslim community. 

1) Does it Really Safeguard the Rights of Muslim Women? 

In 1994, the issue of triple talaq became prominent in public discourse because of a property dispute in Allahabad, where a man and woman claimed to be divorced, but the court did not recognise their divorce as legal. Consequently, the presiding judge, Hari Nath Tilhari sought to test the validity of triple talaq in court, identifying it as central to the process of resolving the property dispute. In a ruling that was generally lauded, Tilhari said that triple talaq did not hold in the eyes of the law.

The judgment has certainly highlighted the sad plight of Muslim women in India if Shariat supports such an unreasonable custom—a review is necessary in the light of outlawed system of talaq in Pakistan, Syria, Libya, Algeria, etc.

In response to this ruling, Flavia Agnes argued that while the judgement appears to be progressive, its consequences may not actually help Muslim women in material and legal terms. 

But would the situation of a Muslim woman be any different if she is not divorced in one sitting but in three consecutive sittings? What is even more crucial for women is that once they are divorced under the Muslim Women's Act, they lose their right to maintenance. And no court in the country has declared the Muslim Women's Act as unconstitutional and granted divorced women right to maintenance.

Agnes has also looked at the problematic ways in which the media portrays Muslim women and their rights, and highlighted that scant attention is paid to the rights laboriously secured from the trial courts, the high courts, and even the Supreme Court by many Muslim women. Adding to this line of argument, Jyoti Punwani acknowledged the history of the rights secured from courts under laws such as the Muslim Women (Protection of Rights on Divorce) Act and the Protection of Women from Domestic Violence Act.

Unfortunately, despite the plethora of judgements cited here, instead of highlighting the positive judgements in favour of Muslim women, the media has preferred to endorse the view that once the husband pronounces talaq, the wife is stripped of all her rights.

2) What Does Abolishing Triple Talaq Mean for Muslim Personal Law?

Only two years after the demolition of the Babri Masjid, Tilhari’s judgment in 1994 invited controversy because it raised larger questions about Muslim Personal Law (MPL) in particular and customary religious laws in general. This question continues to be central to the triple talaq debate even today. Gautam Navlakha problematised the debate by cautioning left-feminist groups who supported Tilhari’s judgment in 1994, to be wary of the “pseudo-champions” of Muslim women, such as self-avowed “Hindu nationalists” like Justice Tilhari himself. 

Does this mean that Muslim women should continue to suffer because of the communal–fascist threat? And is one implying that since the motives of several champions of Muslim women's rights are suspect, one should not support any reform lest it further alienate an aggrieved community? 

Navlakha was of the opinion that it was not just Muslim women who suffered under regressive personal religious law. He thought that Hindu women were equally oppressed and deserved legal attention. Though his opinion was a somewhat contentious one, it raised concerns about uniform personal laws in the triple talaq debate. In a similar vein, Iqbal Masud and A S Uraizee raised certain legal questions in light of Tilhari’s judgment. 

The subject is not to be taken in a populist fashion: a few vital questions arise for serious thinking which are as follows: (1) What are the limits of MPL and the constitutional law? (2) Are there any absolute limits set to primacy of constitutional law? (3) Was MPL given absolute supremacy over Muslims (apart from penal laws which were conceded to IPC) and what is actually saved from the Constitution after 1947?

In 2015, Noorjehan Safia Niaz and Zakia Soman, who spearhead the Bharatiya Muslim Mahila Andolan, conducted a detailed survey where they asked Muslim women their view of MPL. 

A survey of Muslim women and their views on Muslim personal law reveals that the women feel the rights enshrined in the Quran have not reached them; an overwhelming number of the women want personal law to be reformed. As it exists today, Muslim family law is piecemeal and disjointed and neither the community nor the government has tried to make it comprehensive.

3) Who Does the Triple Talaq Bill Serve? 

For the last few years, the right-wing has been suspected of appropriating the issue of triple talaq to support its own political agenda. In January 2018, Flavia Agnes wrote an article that sought to reveal the subtext hidden behind the sudden political zeal in abolishing triple talaq. 

Behind this hasty move is the formulation that the Muslim woman must invariably be projected as devoid of rights and lacking agency, and the Muslim male as premodern, lustful, polygamous, and barbaric.

The amendments made to the initial bill makes triple talaq a criminal offence. Punwani, in April 2018, argued vehemently against lobbies that would benefit if this bill was passed. 

Both the triple talaq judgment and the Muslim Women (Protection of Rights on Marriage) Bill, 2017, popularly known as the “triple talaq bill,” have been used as political weapons by the two main players: the Bharatiya Janata Party (BJP) which rules at the centre and the All India Muslim Personal Law Board (AIMPLB), a self-styled representative of the Muslim community.