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Triple Talaq: Political ‘tool’ before polls?

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LIVE BHARATH : Not with standing the court directive, the debate over doing away with most draconian and inhuman ‘practice’ of “Triple Talaq” is set to take centre-stage of election campaign in forthcoming elections particularly in Uttar Pradesh, where Muslim community constitutes a major ‘voting bloc’ with significant influence over outcome of elections in more than a dozen districts.
Most disturbing it is to not that the Muslim clerics and couple of pseudo secular political parties claiming to be the champions of minorities in the country, wish to vitiate political environs by using it as an ‘effective tool’ to counter the BJP in the forthcoming elections.
Surely, a handful of “male chauvanist” Muslim clerics and parties like AIMIM cannot hold their female counterparts in perpetual slavery in the name of Holy Quran, which is patently the worst fraud.
Consequent to the directions of the Supreme Court to the government to pass appropriate law concerning “Uniform Civil Code” (Article 44 of the Directive Principles of State Policy binds its implementation as the duty of the State), the controversy over the issue of “Triple Talaq” is making headlines already. With the elections round the corner, it is quite fair to forecast that it would become a key issue.
Despite lapse of 69 years, ironic that the Parliament has not passed the “Uniform Civil Code” law. Ipso facto, the Constitution guarantees “Rights to Equality and Freedom of Religion.” It is used to stall the passage of the “Uniform Civil Code” as law.
Article 44 of the Directive Principles in India sets its implementation as duty of the State. In fact, as per constitutional experts, Article 44 “directive” does not come in conflict with Article 25 that guarantees the freedom of religion, because Clause 2 of this Article separates religion from secular laws that removes some regressive religious practices.
Furthermore, Article 14 of the Constitution, under which every Indian has equal rights; no one under this doctrine of equality can be discriminated in the name of background, caste and creed.
Periodically, the Supreme Court, while dealing with matrimonial cases involving mainly Muslim women, reminds the ruling parties on the need to enact the “Uniform Civil Code”.
Now, Modi led NDA government has asked the Law Commission to examine the viability of implementing a Uniform Civil Code in the country based on “the best elements” from various existing personal codes.
Lack of political consensus is the prime reason. It is largely attributable to “vote bank appeasement politics”. The BJP, and surprisingly the Left Parties support it. In contrast, the Congress Party and All India Muslim Personal Law Board among others like the tribal activists oppose it. It clearly highlights the ‘fraud’ of “vote-bank politics.”
Of course, none can challenge the legal merits for the desirability of a Uniform Civil Code for every Indian, irrespective of his or her religious identity.
Factually, “Uniform civil law” will not disallow one marrying according to own religion. It ensures uniform rights to all in marriage, divorce, property rights and inheritance in a society that is essentially patriarchal. In fact, its intended beneficiaries are women in general. In that sense, the common civil code is gender-sensitive; it has nothing to do with religion.
“Triple Talaq” is derived from the Quran and the Hadith. The Quran is the main source book of Islamic laws, but it was compiled more than a hundred years after the death of the Prophet. What is its true interpretation? What is its real status in Muslim countries?
From the earliest days of Islam, a husband could divorce his wife on pronouncement of talaq in three successive tuhrs (menses-free time). The first and second pronouncements are revocable and resumption of cohabitation is possible. It is the third pronouncement that dissolves the marriage. Pronouncement of talaq at one go, called talaq-e-bidat, was a latter-day innovation to get an incorrigibly acrimonious couple to part ways as quickly as possible. The practice was challenged as early as the 13th century by the Hanbali scholar Ibn Taimiyah (1268-1328 AD), who argued that triple talaq at one sitting shall be counted as one and hence revocable. This idea never settled down to prevalent understanding till almost the entire Islamic world rallied to support this view around the first quarter of the 20th century.
Except Bangladesh and Indonesia, every Islamic country has a uniform law based on Sharia which applies even to non-Muslims. But it is also true that in virtually all other countries where Muslims live in significant numbers there is a uniform law — both civil and criminal. If Muslims living in the United States or France can be regulated by man-made uniform laws, why should AIMPLB fear that Indian Muslims will cease to be Muslims once they come under uniform civil law? Also Indian Muslims are governed by the “man-made” criminal law. The Indian criminal law is not based on Sharia as is the case in many Islamic countries.
Turkey, Egypt and Syria have adopted modified versions many decades ago. Iraq, Jordan, the UAE and Qatar have fashioned their own interpretations to Ibn Tamiyah’s view. Iraq and Algeria adopted that divorce could be effected only after approval by government-run personal status courts. In Pakistan, the Supreme Court in 1963 emphatically ruled against triple talaq in one session. In Tunisia, since 1956, divorce was possible only through court.
However, the AIMPLB in India has told the Supreme Court that “Mohammedan law cannot fall within the purview of the expression ‘laws in force’, as mentioned in Article 13 of the Constitution,” and that “the personal law of Muslims has not been passed or made by a legislation.” For AIMPLB, Muslim personal law is inextricably interwoven with the religion of Islam.
The AIMPLB’s logic that Muslim Personal Law is a religious issue and hence beyond the purview of man-made laws is deeply flawed.
In A. Yousuf Rawther v. Sowramma (1971), Justice V.R. Krishna Iyer, as a judge of the Kerala High Court, wrote: “It is a popular fallacy that a Muslim male enjoys, under the Koranic law, unbridled authority to liquidate the marriage. The whole Koran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him: If they (namely, women) obey you, then do not seek a way against them (The Koran, iv:34). The ‘Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously’.”
Justice V. Khalid (in Mohammed Haneefa v. Pathummal Beevi, 1972, Kerala) held that a husband had an unbridled power to pronounce talaq unilaterally was wrong and did not lay down the correct law. Justice Baharul Islam, later a Supreme Court Judge, speaking for Gauhati Bench, said in Jiauddin Ahmed v. Anwara Begum (1981): “The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters, one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected.”
Also, how can Muslims of Goa (Under uniform civil law) be considered lesser Muslims than their counterparts in Uttar Pradesh?
Some analysts opine that the Muslim community internally must generate a process of change and reform in the course of time. Of course, there is merit in such a view. But if one goes by the reality on the ground, such a prospect of internal change is unlikely.
So what is the way out? In the prevailing political atmosphere of the country, it is also impossible to legislate Uniform Civil Code.
Though the BJP manifesto talks of its commitment towards Uniform Civil Code, it is doubtful that the Modi government will ever pass such legislation during its tenure, given its minority character in the Rajya Sabha.
So, the judiciary must act and pass a concrete judgment that could become the “common law” by reasserting its pre-1986 powers.
The best course for the BJP, therefore, is not to challenge any judicial verdict issued by the Supreme Court.

LIVE BHARATH : Not with standing the court directive, the debate over doing away with most draconian and inhuman 'practice' of “Triple Talaq” is set to take centre-stage of election campaign in forthcoming elections particularly in Uttar Pradesh, where Muslim community constitutes a major ‘voting bloc’ with significant influence over outcome of elections in more than a dozen districts. Most disturbing it is to not that the Muslim clerics and couple of pseudo secular political parties claiming to be the champions of minorities in the country, wish to vitiate political environs by using it as an 'effective tool' to counter…

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