May 18, 2017

India: Religion and constitutional tenets need to be reconciled in triple talaq case (Edit, The Times of India, May 18 2017)

The Times of India - May 18, 2017

Strike a balance: Religion and constitutional tenets need to be reconciled in triple talaq case

In a submission before the five-judge Constitution bench of the Supreme Court hearing the triple talaq case, the All-India Muslim Personal Law Board (AIMPLB) has stated that a Muslim woman could insist on specific clauses in the nikahnama (marriage contract) to protect her interests and dignity. This may include provisions like her right to pronounce triple talaq or oral instant divorce. Needless to say AIMPLB is being inconsistent in making this argument. It stated in an affidavit submitted to the apex court last year that Sharia grants right of divorce to husbands because men have greater power of decision-making. Given such patriarchal thinking, AIMPLB’s take on Muslim women too having the right to exercise triple talaq appears far removed from reality.
There’s no denying the fact that triple talaq is a discriminatory practice that treats Muslim women as second-class citizens. Plus, to argue that triple talaq is intrinsic to Islam is specious. Triple talaq is banned in more than 20 Muslim-majority countries, including Pakistan and Bangladesh. That most petitioners against triple talaq have been Muslim women shows that AIMPLB can’t even claim that the entire Indian Muslim community supports this practice.
There is, however, merit in the argument that religious beliefs are given considerable currency in matters of state and society in India. As has been argued by AIMPLB counsel Kapil Sibal, Hindu customs and practices are often protected by the law. At a time when such protections are being expanded through provisions such as food bans in BJP-ruled states, completely ignoring religious sentiments in the Muslim community will legitimately attract the charge of discrimination.
In that context, the Centre’s proclamation that it will come up with a new law if the apex court strikes down triple talaq as unconstitutional doesn’t add up. This position doesn’t elaborate what the alternative to triple talaq is. Government, in consultation with the Muslim community, needs to propose such an alternative that is compatible with Muslim jurisprudence. An ideal approach would be to look at best practices among Muslim communities – the Ahle Hadees and Jafri sects consider talaq uttered thrice in one sitting as one talaq and allow for mediation and reconciliation between the couple – and mandate those religious practices that are in conformity with the constitutional principle of women’s equality.