Indian Court: Islamic Divorce Practice Unconstitutional

Prabhat Sharan
2016.12.08
Mumbai
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161208-IN-talaq-620.jpg Women participate at a rally organized by India’s Hindu nationalist BJP against triple Talaq and in favor of a uniform civil code, in Kolkata, Nov. 18, 2016.
AFP

The Islamic practice of triple talaq that allows a man to part from his wife just by uttering the word “divorce” three times is unconstitutional and violates the rights of Muslim women, an Indian court said Thursday.

“The instant divorce (triple talaq) though has been deprecated and not followed by all sects of [the] Muslim community in the country, however, [it] is a cruel and most demeaning form of divorce practiced by the Muslim community at large,” observed the High Court in Allahabad, Uttar Pradesh state.

“Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran,” the court said.

The court’s observation has come as a significant boost to several women petitioners who have challenged gender-biased practices in Islamic personal law, such as triple talaq and polygamy – which allows Muslim men to have four wives – in the Supreme Court.

“The question which disturbs the court is should Muslim wives suffer this tyranny for all times. Should their [Muslim] personal law remain so cruel toward these unfortunate wives,” the Allahabad High Court said.

In Hindu-majority India, where nearly 180 million Muslims make up the largest religious minority, there is no single civil law for all of its 1.25 billion citizens.

Muslim civil law is governed by the All India Muslim Personal Law Board (AIMPLB), which has resisted attempts to modernize its ostensibly Sharia-based laws and opposed any interference from the government.

On Thursday, the board questioned the rights of the courts to intervene in matters related to religious beliefs.

“This is not just about triple talaq. One has to deliberate on the issue on a broader scale as the ramifications of such observations are extremely sweeping,” Kamal Faruqui, AIMPLB’s executive committee member, told BenarNews.

“The issue is of religious rights enshrined in our constitution. Thus the question arises whether courts can interpret or intervene in religious rights and beliefs,” he said.

“Our board is looking at this issue from a nationwide perspective. Such interventions have to take into account the populace across the country,” Faruqui said.

Government welcomes observation

The Hindu nationalist Indian government, which in October submitted an affidavit in the Supreme Court opposing discriminatory practices of the Muslim personal law, welcomed the High Court’s observation.

The government has suggested implementation of a Uniform Civil Code (UCC) applicable to all Indian citizens regardless of religion.

“Religion is a matter of belief. [But] the Constitution of India is supreme and above all [personal law] boards,” Venkaiah Naidu, Union Minister from the ruling Bharatiya Janata Party (BJP), told reporters in New Delhi.

Syed Zafar Islam, another BJP leader, said that certain AIMPLB laws were “against the Quran and Islam, which believes in giving justice to everybody.”

Renuka Chowdhury, a member of India’s upper house – Rajya Sabha – from the opposing Congress party, too, stood in support for the court’s observation, saying, “Whenever you take away power from men they are bound to react.”

“Unilateral triple talaq is arbitrary and violates the constitutional rights of Muslim women,” Maomoonah Mulla, president of the All India Democratic Women’s Association (AIDWA), told BenarNews.

“We have been waging a battle to put an end to not just the practice of triple talaq, which, as far as we understand, goes against the principles of Islam, but also to other gender discriminatory norms prevailing in the Indian society at large. This observation is a big boost to our struggle,” Mulla said.

Significant impact

The court’s observation will have a significant impact on the petitions filed against gender-biased practices of the Muslim personal law in the Supreme Court, which is expected to deliver a verdict soon, legal experts said.

“This observation will certainly be taken into consideration. It is a judicial opinion and the Supreme Court will consider it and finally deliver a verdict based on merit,” advocate Irfan Engineer, director of the Centre for Study of Society and Secularism (CSSS), told BenarNews.

Challenging the validity of the practice of triple talaq, Engineer said: “The AIMPLB has misinterpreted the Quran, which clearly states that a divorce should span three menstrual periods. During this period the husband and wife should attempt to reconcile.”

“This triple talaq law interpreted by the AIMPLB is merely its board’s opinion. In actuality, it has no authority at all,” he said.

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