Social institutions refer to an amalgamation of complex, integrated social norms which exist to preserve and maintain certain social values. A functionalist view comprehends social institutions as a set of norms, values, beliefs and role relationships which aim to fulfil social needs. There exists both, formal social institutions (education, law, etc.) and informal social institutions (marriage, religion, etc.). On the other hand, a conflict view understands that society is not egalitarian and that all individuals do not enjoy similar access to needs and requirements. It promotes the idea that all institutions; political, social, economic, educational and religious, function to serve the interest of the dominant sections of society, be it class, gender, caste or tribe. The dominant section of the society not only dictates all social institutions but also dominates the ideas of the society.
Patriarchy, the dominant social system, has dictated the norms of various social institutions all across the world. The institution of marriage and as a result, divorce, has also been constructed as per the patriarchal norms. With much debate and discussion being centred on divorce in Islam, it is important to understand the institution of divorce and its consequences in Islam.
The Indian society has always prided itself on its plurality. Islamic law has found a place in the regulations as early as the 17th century wherein the law required that in the matter of “marriage, inheritance and succession………” the personal laws of Hindus and Muslims will govern the individuals. Islam has perceived divorce as a necessary evil. It is evil as it wrecks the unity of a family and impacts the children, if any, adversely. However, it has been considered as a necessary end to dis harmonic relationships and an exit from the bitter and miserable continuance of a forced partnership. Though it has been recognised as a necessary evil, Islam reiterates that the marital tie is to be respected and maintained till the possible extent. Certain values like mutual adjustment and tolerance have been emphasised for the sake of keeping the marriage intact. Those involved in the matrimonial alliance along with their family, well- wishers and their other allies are required to invest all their efforts in retaining the subsistence of the marital alliance. Dissolution has to be treated like the last resort. To understand more about the Islamic law of divorce, it is important to take into consideration the historical background of divorce,
Historical Context
Under the ancient Hebrew law, a husband could grant a divorce to his wife as and when he found her to be disagreeable. There existed no checks on his arbitrary and impulsive use of the power. History bears witness to a similar practice existent among the early Romans and Greeks. However, after the advent of Christianity, marriage came to be regarded as an indissoluble association but experience has shown that it was not a scientific and rational approach.
Divorce, in pre- Islamic Arabia, was used as an instrument of torture. To humiliate their wives, men exercised their power to divorce, uninhibitedly, as and when he pleased. The men also possessed the power to revoke the divorce and then divorce again as many times as they wished. It was commonplace for men to falsely accuse their wives of adultery to evade from any formal responsibility of maintenance or legal punishment. Witnessing such exploitation of women and of the institution of marriage, Prophet Mohammad engaged his efforts to remove fundamental evils and ensure the solidity of marriage without compromising personal freedom. The Islamic law did not take away the husband’s right to divorce his wife unilaterally but imposed several restriction on that right. The Muslim law prescribed that the divorce, once declared, could not be revoked on whims. The law also prescribed an explicit procedure and proper time for the divorce. It has also imposed obligations on the husband to pay dower and maintenance to the wife in case of a divorce. And if the divorce was initiated by the wife, she has to return back the dower and the wedding gifts. Dower refers to the marital gifts given by the husband to his wife. It falls under the laws prescribed for marriage. The institution had been introduced as a token of reverence for women. Prophet Mohammad had emphasised that divorce was to be treated as the last resort when all other efforts to retain harmony and stability in a relationship had failed. It should not be treated as an instrument of injustice.
The dissolution of marriage is permissible by the husband (popularly known as talaq), by the wife (popularly known as khula) and lastly, by mutual consent of both (popularly known as mubarat). The Indian Muslim practice of divorce includes the utterance of the word ‘talaq’ three times. However, the procedure of divorce is often misunderstood leading to several misconceptions. In fact, the Quranic law had enabled women to file for divorce at a time when such a practice was entirely absent in ancient Arabia.
Talaq
Muslim jurists use the word ‘talaq’ to denote the release of a woman from marital tie. Talaq in Arabic means undoing of or release of a knot. It finds its conception in the word ‘talaqa’ which means ‘to release (an animal) from tether’. The divorce is functional from the time of the pronouncement of divorce. The presence of the wife is not necessary. Hanafi law (one of the four religious Sunni Islamic schools of jurisprudence) does not specify any special code of conduct. Ithna Ashari (one of the three religious Shia Islamic schools of jurisprudence) law, on the other hand, stresses on a strict procedure of divorce. It promotes the pronouncement of the unambiguous intention behind dissolving the marriage and supports the presence and hearing of two Muslim male witnesses of approved righteousness at the time of the divorce. The law recognises talaq al-sunna (divorce in conformity with the dictates of the Prophet) and talaq al- bida (divorce not in conformity with the dictates of the Prophet). Other non- prevalent forms of divorce in India are Zihar and Ila.
Talaq al- sunna can further be subdivided into Ahsan and Hassan. Ahsan propagates a single declaration in one sentence during the time of the wife’s tuhr. Tuhr refers to those approximate 28 days before the onset of the menstrual cycle. To ensure that the divorce is irrevocable, one should abstain the married couple should abstain from sexual intercourse. The pronouncement made is revocable only till the time of idda (a period of three months from the date of the declaration or if the woman is pregnant, then until delivery of the child). Revocation of the divorced can either be expressed through words or conduct. Resumption of sexual intercourse is a sign of revocation. Such practices of revocation is acceptable in both, Hanafi and Ithna Ashari law. Hassan refers to the three successive pronouncement of Talaq during three periods of tuhr of the wife. Each of these pronouncements have to be made at a time when no sexual intercourse has taken place during that particular tuhr. Illustratively, a husband pronounces talaq on his wife, for the first time, when his wife is on a period of tuhr and they have not engaged in intercourse during the period of tuhr. It is treated as the first talaq. The husband decides to revoke it and resumes cohabitation in that period of tuhr itself. In another period of tuhr, the husband pronounces talaq but again gets back to cohabitation during that period itself. Such a pronouncement is to be considered as the second talaq. Upon the pronouncement of talaq in the next period of tuhr, when no sexual intercourse has taken place, the divorce is considered to be final and irrevocable and sexual intercourse becomes unlawful. It is important to keep in mind that the period of tuhr, when the talaq is announced, does not need to be consecutive.
Talaq al-bida came into being during the second century and entails two forms of divorce within it, triple-talaq and a single irrevocable declaration of talaq. Unlike other forms of divorce, talaq al-bida refers to the immediate pronouncement of divorce rather than talaq al- sunna which stresses on declaring or accepting divorce after a period of time. Triple-talaq is usually pronounced in once sentence (e.g. I divorce thee thrice) or in three sentences (e.g. I divorce thee, I divorce thee, I divorce thee) in the same period of tuhr. There exists much debate about the lawfulness of the system. While Hanafi law considers it lawful but sinful, but Ithna Ashari and Farmidi law deliberates triple talaq as non- permissible. Through the research of Furqan Ahmad (2015), it has been found that the system of triple-talaq has become popular among the Sunni Muslim community. The historical background of such a provision mentions that in pre- ancient Arabia, men habitually divorced their wives and would then revoke the same marriage. After the conception of Quran, it had been established that the pronunciation of the third talaq (as mentioned above) was to be considered final and irrevocable. This format of divorce, though favoured by the Sunni Ulemas, did not enjoy the support of the other schools of thought as it does not coincide with the Quranic traditions, injunctions and views of Ahle- Sunnat Wal Jamat (followers of the traditions of the Prophet and the decisions of the collective body of Muslims). Triple- Talaq has largely been considered as undesirable and as a great sin. The other form of divorce under talaq al-bida is the single irrevocable declaration of talaq and is called talaq al-bain. It can be made either during the period of tuhr or even otherwise. This form of divorce is acceptable only when given in writing and severs the marital tie immediately. Like triple- talaq, talaq al-bain is also considered to be unlawful and undesirable by most but it is permissible.
Triple- Talaq and its Impact on Women in India
A unilateral form of divorce, initiated upon the will of men, screams out injustice for women. Triple- Talaq is a classic example of the ever- continuing existence of patriarchy in the country. Triple- Talaq, in the Indian context, is especially important to note as much debate is going on about its existence in the present. Though largely a patriarchal society, a huge population of the country has revolted against the existence of the practice. However, a larger population has revolted against the ban of the practice. India, being a signatory to the Millennium Development Goals and the Sustainable Development Goals, has not yet been able to achieve the goal of gender equality. The practice of triple- talaq and the issue of its ban or continuity also summoned a debate between the existence of a Universal Code of Conduct and Personal Freedom. There are several dimensions to the issue of triple- talaq. The most dimension is the immobilization of the rights of women.
Patriarchy is a socio- political system which maintains that men are innately dominating, superior to everything and everyone considered weak, especially women, and can dictate the weak. Patriarchy justifies the subjugation of women and control over their bodies and actions. Triple- Talaq, which originally had been constructed to relieve women from whimsical men, had turned into a device, used by men, to ridicule women and rid them of their social, cultural and economic rights.
One of the most exemplary cases which showcase the sufferings of a Muslim woman is the Mohd. Ahmad Khan vs. Shah Bano Begum & Ors case. In April 1978, Shah Bano, a 62 year old woman, had filed a petition in court demanding maintenance from her divorced husband, Mohammed Ahmed Khan. Khan had granted her an irrevocable divorce. They were married in 1932 and had three sons and two daughters together. Shah Bano Begum was asked to move out of the house after having lived with her husband and his recently wedded second wife for three years. She had then gone to court and had filed a petition for maintenance for her own self and her children under Section 123 of the Code of Criminal Procedure, 1973. However, her husband contested the claim on the grounds that the Muslim Personal Law required men to provide maintenance during the period of iddat (explained before). His argument also received the support of the All India Muslim Personal Law Board. The Board maintained that an intrusion by the court would violate the Muslim Personal Law (Shariat) Application Act, 1937 which emphasised that the court was to make decisions regarding divorce, maintenance and other family matters based on Shariat. After detailed discussions and debates, the Supreme Court reached a conclusion that CrPC applied to all Indian citizens irrespective of the religious background. The then Chief Justice, Y. V Chandrachud, extended support to the decisions of the High Court which gave orders for the maintenance to Shah Bano under CrPC. The apex court too increased the maintenance sum. However, the Rajiv Gandhi led government intervened and overturned the verdict of the court and claimed that the maintenance period was applicable only during the iddat period. The Muslim Women (Protection on Divorce) Act, passed in 1986, enabled the magistrate to direct the Wakf Board to provide the aggrieved women means of sustenance for themselves and their children. Shah Bano Begum eventually withdrew the maintenance claim that she had filed.
Triple- Talaq has crippled the basic rights of many Muslim women and their voice has been crushed by the dominant systems of religion and patriarchy. The judgement of the Supreme Court and the Chief Justice could have, even if meagerly, contributed to increasing the confidence of women to speaking against the atrocities faced by them and enhancing their agency to take actions against such injustice.
Current Discourse on Instantaneous Divorce
In 2016, a Public Interest Litigation was issued by Shayara Bano, a resident of Kashipur, Uttarakhand. She sought ban on the practice of instantaneous divorce after the abrupt end of her 14- year old marriage. Her husband had sent her a letter and along with that letter, he sent Rs. 15,651 (the amount that had been promised to her at the time of marriage) ending their marriage. She was not allowed to stay with her children and had been forced to leave her hometown.
After the PIL was filed by Shayara Bano, the Supreme Court, began hearing the case regarding the validity of triple- talaq. A five- judge constitutional bench, headed by Chief Justice J. S Khelar, was constituted to hear the petition of Shayara Bano regarding the unconstitutionality of the practice of triple- talaq. The Supeme Court in 2017, held triple- talaq to be unconstitutional and void. It received the support of certain political and social organisations, like the Bharatiya Muslim Mahila Andolan (BMMA), which claimed that that triple- talaq was invalid and should not be a part of the Muslim personal law. However, certain other organisations like the All India Muslim Personal Law Board (AIMPLB) claimed that triple- talaq was a part of the religious personal laws and hence did not concern itself with fundamental rights. Such organisations established the practice of triple- talaq to be a part of important religious practices which were protected by the state under Article 25 of the Indian Constitution. Women too have very diverse views on the practice. There exists differences in opinions of liberalist and conservative women and even within those ideological groups. While some other organisations agreed that triple- talaq should be banned, irrespective of whether the practice is part of Islam, as it interfered with the fundamental rights of individuals. The Supreme Court, despite arguments against its declaration, have maintained that the practice disrupts gender equality and sustains discrimination as only Muslim men are given the right to divorce their wives unilaterally. Women, on the other hand, has to approach the court to obtain divorce. The divorce can to be obtained only on certain specified grounds provided under the Dissolution of Muslim Marriage Act, 1939.
The Bharatiya Janata Party (BJP) and its supreme leader, Narendra Modi, have condemned all the supporters of triple- talaq. And for that purpose, Narendra Modi had put forward a bill for the same in December, 2018. However, the bill had not been passed as it had not received the support of the majority in the Rajya Sabha. With the dissolution of the 16th Lok Sabha, the triple- talaq bill lapsed and required to be tabled in the lower house again. The government claimed that there existed an urgent need to check the desertion of Muslim caused by instantaneous talaq. The Mulsim Women (Protection of Rights on Marriage) Ordinance was promoted in September, 2018 but that too was rejected by the Parliament. It was again reintroduced in 2019. The Ordinance declared triple- talaq to be illegal, void and also conferred a jail term of three years for the husbands. The Bill and the Ordinance has faced rejection in the past as the practice of triple- talaq has been described as a cognisable offence. Many believe that it could lead to a ground for misuse. The Bill also entitled a Muslim woman, who has been given a talaq, to seek allowance from her husband for her own self and for her children. However, certain members of the Parliament raised regarding the possibility of such a clause. According to the Supreme Court, the pronunciation of triple- talaq would no longer end the marriage. Hence, Muslim men could be jailed and denied bail for uttering a word that holds no legal value. Apart from Parliamentarians, the Bill faced criticisms from citizens of the country as well. Concerned individuals claimed that unilateral divorce was faced by women of all communities and hence, the Bill would still not be successful in constructing a Universal Civil Code. The Census data tells us that there exist 20 lakh Hindu wives who have been abandoned by their husbands. The number is 2.8 lakh for Muslims, 90,000 for Christians and 80,000 for women of other communities. Gender- justice, has been argued by Kavita Krishnan in 2018, is not the aim of the Government. The Government had not taken any initiatives to ensure the entry of women in the Sabarimala Temple in Kerela. According to the guidelines of the temple, women and girls belonging to the menstrual age-group was not allowed to offer prayers at the Ayyappa temple. LDF, the ruling political party in the state, took a progressive stand and decided to implement the Supreme Court’s judgment of allowing women of all ages into the temple. However, other political parties shied away from any king of decisions which would ensure gender equality and claimed that the duty of the government was to protect people’s right to practice their religion and maintain religious beliefs. Such a decision of the LDF cost them seats in the Parliament.
Gender equality is still a far-fetched dream to be achieved by India. The patriarchal society does not enable women to enjoy equal rights and provisions across all religions and also dictates the rules and regulations of all institutions including religion. Triple- talaq, though reckoned to be unconstitutional and void by the Supreme Court, has not been done away with. However, some Islamic countries like Egypt, Tunisia, Bangladesh, Indonesia and Pakistan among others have banned the practice of triple- talaq. Such countries recognise the injustice suffered by women in such circumstances.
Political parties, a product of the patriarchal society, take very minimal efforts to ensure a gender- just society. They are more concerned with vote banks than with the welfare of the citizens. It is arguable if the Modi government’s initiative towards triple- talaq and women’s rights reflect concern or a pretext to harass and criminalise Muslim men. Most women too have been influenced by the patriarchal society and hence, do not support the battles of other women. Neither do they support the upliftment of women belonging to the minority community. Increased awareness, not only among certain sections of the society, and cooperativeness can help to bring about certain changes in the corrupt, patriarchal system.
About the Author
Sampurna Sarkar is a socio - economic researcher who passed out from Tata Institute of Social Sciences, India in 2019. Her course curriculum along with the exposure she gained through her stay in villages exposed her to different social realities. Also, the visible inequalities existing between different persons instigated her to learn more about such phenomena.
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