The Indian State cannot be a passive spectator when in the name of freedom of religion talaq-ul-biddat (irrevocable talaq) is practised. The practice has its origin in the second century of the Islamic era that predates the modern-day notions of secularism, democracy and constitutional rights.
For the sake of the argument, even if such a right is admitted under the concept of freedom of religion, why not extend similar rights even to Muslim women on similar grounds? If her consent is necessary at the time of marriage then why is it not sought at the time of repudiation?
On Tuesday, the Allahabad High Court echoed this thought, saying: “Muslim marriages are contracts, can’t be ended by husband alone”.
The scripture that provides for triple talaq also gives marriage the status of a contract and not a sacrament.
The time has come to accept the reality of the historical injustice meted out to Muslim women in India and allow them to have a say in a matter.
To ensure formal equality, the government must eliminate de jure discrimination. Unjust laws that lead to gender injustice need to be considered strictly without overlapping of rights or keeping them as a justification for religious rights.
The search for a solution to this predicament lies in the hands of the law makers. It is for the law makers to correlate law and social phenomena relating to divorce through the process of legislation to advance justice in institutionalised form.
There have been instances of misuse and ignorance of the procedure of triple talaq:
First, the instance where a Muslim husband filed a petition alleging that triple talaq pronounced by him was not in accordance with Islamic law when the wife appeared to have accepted the talaq and moved to a magistrate’s court for further proceedings.
The view that the Muslim husband enjoys an arbitrary, unilateral power to impose instant divorce is not in accordance with Islamic injunctions.
It is a fallacy that a Muslim male enjoys an unbridled authority to liquidate the marriage. Unfortunately, the Muslim Personal Law, as it operates in India, does not allow a woman the right of khula (the right available to a Muslim wife to repudiate the marriage without her husband’s consent) and, naturally, husbands, more often than not, exploit this for harassing women and also for extracting much higher compensation than justified.
The liberal and pro-woman provision of khula available to women under Islam has been ignored.
The critical areas where Koran has not given any specific directions for implementation, interpretation of its purpose and objectives is misused in the name of religion. There is an urgent need for specific legal directions, which are not in derogation of any legal right and also comply with the various international conventions and human rights instruments that India has ratified.
The main problem with this practice is that it also has a strong influence and authority, whereby it seeks to perpetuate the patriarchal domination which has strong links with the issue of gender inequality
The essence of secularism is non-discrimination of people by the State. A secular State should only be concerned with human relations towards each other and not the relationship between man and god.
Vijaya Singh is a Supreme Court advocate
The views expressed are personal