Whichever way you look at it, in simple human terms, rationally, constitutionally or theologically, the dogged refusal of the bulk of the ulema in India and the All India Muslim Personal Law Board (AIMPLB) to call for an end to the Muslim male right to triple talaq (instant divorce) defies comprehension.
 

In human terms, in terms of any notion of gender justice, the unilateral, arbitrary and whimsical right of a Muslim male to divorce his wife in an instant – a letter, telegram, telephone, telex, fax even an SMS would do – cannot be described as anything but inhuman and anti-women.
 

In rational terms it defies any definition of justice or equity. Triple talaq cannot but be unconstitutional because it is so blatantly unjust, unfair, arbitrary and discriminatory.
 

Even theologically, it is difficult to digest the position long held by the ulema and until recently accepted by the courts: "Though bad in theology (haram, sinful), triple talaq is good in law".
 

What this means in simple terms is that the moment a Muslim male utters talaq, talaq, talaq, his wife becomes unlawful to him, even if he has uttered those words under coercion, in a fit of rage or in a drunken state and regrets his utterance the very next moment. The only way out for the couple to resume their marital relation, the ulema say, is through halala: the woman must marry someone else, consummate the marriage, get the second husband to divorce her and then remarry the first husband.
 

It is repeatedly claimed, not by Muslims alone but also by many non-Muslim scholars, that justice and equality are the key social message of Islam. How can the practice of triple talaq be squared with any notion of justice or equity? It is not known if the ulema or the AIMPLB have ever asked themselves this question, and, if so, what their answer is.
 

Accompanying articles in this cover story make clear that not all the ulema and not all members of the Board accept triple talaq as lawful. Besides, the triple talaq practice is today unlawful in an overwhelming majority of Muslim countries, even though Islam is declared to be the State religion.
 

For the first time since its inception in 1972, the AIMPLB resolved in its meeting of July 4, 2004 to take some concrete, if highly inadequate, steps to give justice to Muslim women. The Board resolved:
 

(1) To launch a nation-wide campaign to create awareness in the Muslim community that the prevalent practice of triple talaq was wrongful and to educate them on the Islamic way of divorce.
(2) To prepare and popularise a model nikahnama that both husband and wife be asked to sign at the time of marriage, committing themselves to not seeking a divorce except in the correct Islamic way as spelt out in the model nikahnama.
(3) To ensure that Muslim women get a share in agricultural property.
(4) To establish Darul Qaza (Islamic courts) in different parts of the country to settle marital disputes and to strive for constitutional status to these courts (so that its orders become legally enforceable).

The Board has fallen between two stools. These resolutions have left the Muslim fundamentalists aghast at the very thought that the AIMPLB is contemplating the unthinkable: bringing any change in Muslim Personal Law.
 

On the other hand, the proposed measures have not impressed women’s groups and other secular organisations in the least. And this is so for several reasons.
 

So long as you keep reiterating the position that triple talaq is good in law but bad in theology, what would be the efficacy of any campaign against it, even assuming (and this is a very big assumption) the Board has the machinery to run a nation-wide campaign and the mechanisms to ensure its success. As for a model nikahnama, the same Board has been sitting on a model nikahnama suggested by some of its own members for ten years. How many more decades before an approved nikahnama goes into mass circulation? How do you create mass opinion in its favour?

There now seems to be a near consensus among the upper echelons of the judiciary that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.
 

No less objectionable is the fourth resolution, asking for a religious body to be integrated as part of the judicial apparatus in a secular State. How can any secular State grant such legitimacy to any religious organisation? How would anyone react to the demand for a Hindu Dharam Sansad as an integral part of the courts set up in India?
 

The only saving grace in these four resolutions is the one concerning restoration of Muslim women’s right to agricultural property. It is a welcome development for more than one reason. In demanding fresh legislation to ensure Muslim women’s rights to agricultural property (a right that has been denied to them since 1937 with the connivance of the ulema), the Board will nullify the oft-repeated though baseless claim that any change in Muslim Personal Law is interference in God-given laws.
 

Even as there is endless debate over whether those concerned with gender justice should engage with or ignore the Board, victims of triple talaq (Muslim women) have kept knocking at the doors of constitutional courts in search of justice. And surprisingly, though neither the media nor the Muslim masses have awakened to its implications, a big, big change is evident here.
 

It is clear from a spate of judgements by the high courts and even a division bench of the Supreme Court since 1998 that the upper echelon of the judiciary is no longer willing to buy the "bad in theology, good in law" line of the ulema. (The accompanying article by Flavia Agnes refers to several of these judgements). There now seems to be a near consensus among them that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.
 

What this could mean for a victim of arbitrary talaq is best understood from a brief recount of the September 18, 2002 judgement of a division bench of the Supreme Court comprising Justice RC Lahoti (now Chief Justice of India) and Justice P. Venkatarama Reddi in the case of Shamim Ara v. State of UP and another, (2002) 7 SCC 518.
 

Shamim Ara from Allahabad got married to Abrar Ahmed in 1968. In 1979, she filed an application before a family court seeking maintenance from her husband under Section 125, CrPC, on the ground that he had deserted her.
 

In 1990, the husband filed a written statement to claim he had divorced her in 1987 and so she was not entitled to any maintenance. Accepting the husband’s contention that she had already been divorced, the family court, in its judgement in 1993, dismissed the wife’s plea for maintenance.
 

On her appeal, the high court (Allahabad) held that the communication of talaq stood completed in 1990 with the filing of the written statement by the husband.
 

But on September 18, 2002, the Supreme Court ruled that "neither the marriage between the parties stands dissolved on December 5, 1990 nor does the liability of the husband to pay maintenance come to an end on that day. The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law."
 

The judges held that the mere plea of a husband of having divorced his wife sometime in the past was of no use as, "There are no reasons substantiated in justification of talaq and no plea of proof that any effort at reconciliation preceded the talaq".
 

The courts of secular India are the only hope for the countless victims of triple talaq.

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 1