A ‘Divine’ law above all laws of land

AIMPLB says ‘Triple Talaq’ law cannot be rewritten in the name of social reforms

New Delhi, Sept 2: Discussions on the ban on triple talaq are getting heated and the positions of the contesting parties are getting rigid — the All India Muslim Personal Law Board (AIMPLB) at one end and aggrieved women, and their supporters, at the other.

Even in progressive circles there is a presumption that a Muslim man can instantly divorce his wife by just uttering ‘talaq’ three times and thereafter she is devoid of any rights. The support for a ban rests on this premise.

In October last year, a two-judge Bench of the Supreme Court, while hearing another matter having little to do with Islamic law, decided to suo motu ask the Chief Justice to set up a Bench to examine gender discrimination against Muslim women, especially “arbitrary divorce”.

The case snowballed with the addition of other petitions, and after all impleadments was considered by Chief Justice T S Thakur.

And now, the All India Muslim Personal Law Board (AIMPLB) on Friday told the Supreme Court that “personal laws cannot be re-written in the name of social reforms.”

Submitting its response in connection with the ongoing matter on the ‘triple talaq’ issue, the All India Muslim Personal Law Board said, “Personal laws cannot be challenged as violative of Part III of the Constitution.”

“When serious discords develop in a marriage and husband wants to get rid of wife, legal compulsions and time consuming judicial process….in extreme cases husband may resort to illegal criminal ways of getting rid of her by murdering her. In such situations Triple Talaq is a better recourse,” AIMPLB told the apex court.

Though the same case, which started in October 2015 and still going on itself proves the efficiency of our judiciary system, the respondents are trying to be bit aggressive after comparing ‘Triple Talaq’ as a better option than heinous crime methods.

“Marriage is a contract in which both parties are not physically equal. Male is stronger and female is a weaker sex. Securing separation through court takes a long time deters prospects of remarriage,” it added.

The AIMPLB further said that polygamy as a social practice is not for gratifying men’s lust, but it is a social need.

“Muslim women have right to divorce under Khula practice. Issues of Muslim Personal Law are raised in the Supreme Court are for Parliament for decide. The Uniform Civil code is a directive principle and not enforceable. The personal laws are protected by Article 25, 26 and 29 of the Constitution as they are acts done in pursuance of a religion,” it added.

The apex court had last week issued notice to the Central Government on the plea of a Muslim woman challenging the Constitutional validity of ‘triple talaq’ to end a marriage.

The petitioner Ishrat Jahan has sought a declaration from the apex court, saying that Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, was unconstitutional as it violated fundamental rights guaranteed under Articles 14 (equality), 15 (non-discrimination), 21 (life) and 25 (religion) of the Constitution.

In her petition, Jahan has asked whether an arbitrary and unilateral divorce through triple talaq can deprive the wife of her rights in her matrimonial home as also her right to have the custody of her children.

A batch of petitions is being heard by a bench headed by Chief Justice T.S. Thakur and notices have already been issued to the All India Muslim Personal Law Board and others.

However, this is not the first such type of petition that has been presented before the Supreme Court as Uttarakhand-based Shayara Banu and the Rashtrawadi Muslim Mahila Sangh through its president Farah Faiz have raised similar queries.

On July 29, the apex court had favoured a wider debate on the petitions challenging the validity of triple talaq.

All India Muslim Women Personal Law Board (AIMWPLB) president Shaista Ambar has demanded abolishing of the triple talaq system.

Talaq-e-bidat is a Muslim man divorcing his wife by pronouncing the word “talaq” more than once in a single tuhr (the period between two menstruations) or in a tuhr after coitus or pronouncing an irrevocable instantaneous divorce at one go (unilateral triple-talaq).

The Centre has set up a high-level committee to review the status of women in India and according to reports has recommended a ban on the practice of oral, unilateral and triple talaq (divorce) and polygamy.

And what of the Uniform Civil Code argument? The fact that most see the Code as just an extension of the Hindu law is a problem, and there is little chance of other faiths accepting it, or agreeing to practices that may not draw at all from their respective faiths.

How will a ban on triple talaq help Muslim women?

We have secured the rights of Muslim women through the legal process in a number of cases and have stood firm against arbitrary and frivolous contentions of talaq evolved by crafty and manipulative defence lawyers. Magistrates and judges are well versed with the Shamim Ara case, as well as other similar judgements, and do not accept the husband’s plea of triple talaq.

How will the current campaign, initiated by some individuals and groups, to ban triple talaq, and make husbands criminally liable, help Muslim women? As a woman’s rights lawyer who has worked closely with Muslim women for a decade, I realise that most women are reluctant to approach the police and press criminal charges.

What they seek is a life free of violence and to secure their right of maintenance and child support. More importantly, a ban will not change the fact that a woman has to go to a civil court to secure her rights. So my question is: Will such a ban truly change the life of a deserted Muslim woman?