The demand by Muslim women for abolition of triple talaaq is a historical development in independent India. The Indian public is used to certain male bodies speaking on behalf of the entire Muslim population and the concerns of women have never been made centre stage.
Shayara Bano, Afreen Rehman and some other women have approached the Supreme Court praying for abolition of this unilateral and arbitrary practice where the man can just utter the word thrice and the wife stands divorced. An attempt is being made to confuse the issue of triple talaaq with that of uniform civil code (UCC). These are two separate and equally important issues. Triple talaaq should be abolished to uphold gender justice and gender equality provided by the Koran as well as the Constitution. The question of UCC calls for a much larger debate as it concerns all Indian citizens, irrespective of religion.
There are a number of verses in the Koran that prove Allah doesn’t discriminate between man and woman. There is no mention of triple talaaq in the Koran. A Muslim marriage is a social contract between two individuals with clearly stated terms and conditions in the form of a nikahnama. The right to seek divorce is given to both husband and wife. However, divorce is considered totally undesirable and must be avoided as far as possible. If there is no marital harmony and divorce is essential, then a certain procedure has to be followed involving both parties.
There are clearly laid-down verses in the Koran that call for a reconciliation and mediation procedure lasting over a period of at least 90 days. If the reconciliation and mediation fails to unite the couple, then divorce could happen. Besides, the Koran insists that divorce, whenever it happens, should be just and fair. So the question of arbitrary unilateral divorce uttered in the absence of the wife does not arise. Further, divorce given on SMS, Whatsapp, via email, on a post card or orally are all invalid and must be struck down as such. But this is the commonest form of divorce in our patriarchal society where the man has superior rights and the woman has none. Muslim women’s demand for abolition of a non-Koranic practice must be heard.
India is a secular country where gender justice and right to religious freedom are both provided for. A secular alternative in the matter of personal laws—such as, marriage and family laws—is the entitlement of each citizen. To an extent, this secular alternative exists in the form of the Special Marriage Act, 1954. Every Indian citizen has a choice to marry under this law or their own personal laws. This law should be further strengthened, expanded and made popular. Let the citizen choose if she wants marriage through saptapadi/kanyadaan, or a church wedding or a nikah or a registered wedding or both.
We at the BMMA (Bharatiya Muslim Mahila Andolan) believe that codification of Muslim personal law will help solve the urgent legal concerns of Muslim women. A UCC will be for all the communities and not just Muslims. Also the process of working out a UCC will be long-drawn one, and one that will involve a wide range of consultations with all religious majority and minority communities. The issue of codification of Muslim law, thus, should not be seen alongside the issue of UCC—both are different processes, and at this point of time, nobody even knows what the UCC would look like. The entire debate around it is built over something that does not even exist; there is not even a draft around. On the other hand, the BMMA has already prepared a draft of the codified Muslim Law, one which ensures gender justice, and which needs to be taken up immediately for wider consultations.
Reform in Muslim personal law is necessary, just as the reform done through the Hindu Marriage Act, 1955 and the Indian Divorce (Amendment) Act 2001 (now pending further amendment to guarantee equality under Article 14 of the Constitution), which pertains to the dissolution of marriage of the Christian population. Abolition of triple talaaq should be the first step in the overall reform of the Muslim personal law.
Noorjehan Safia Niaz and Zakia Soman are founders of the Bharatiya Muslim Mahila Andolan, a rights-based mass organization led by Muslim women.