The article 25 of India’s constitution is a fundamental right which reads: “… all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”
The article 44 of the same constitution is a directive principle which reads: "The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India."
A directive principle, a suggestion or an optional act cannot outdo a fundamental right of a citizen, and this is common sense. An effort to make changes in the Muslim personal laws from outside has always been considered interference in the religion and religious practices by the Muslim Indians in general and thus is totally against the constitutionally guaranteed fundamental right.
The recent affidavit by the BJP government in the Supreme Court seeking abolishment of triple talaq and polygamy from Muslim personal law is unwise, uncalled for and an electioneering gimmick. Likewise the questionnaire issued by the Law Commission of India is poorly prepared, biased about Muslims and is received by the minority communities and Dalits as part of a conspiracy to implant differences and impose a Brahmanical law in the guise of Uniform Civil Code (UCC).
India is a secular state. No particular religion or the religion of the overwhelming majority has been made the religion of the state. Articles 29 and 30 of the constitution also ensure religious and linguistic minorities the right to establish and manage educational institutions of their choice.
Triple Talaq and Muslim Society
The government and some of our media houses are sensationalizing the matter of triple talaq and polygamy in ways that it looks as if triple talaq and polygamy are widespread practices among Indian Muslims only, whereas the facts suggest otherwise.
According to Census 2011 data on the marital status of Indians; among all divorced women, 68 percent Hindus and 23.3 percent are Muslims. Census 2011 further reveals that 5.5 in 1,000 Hindu couples tend to get separated, including cases of wives being abandoned by husbands, one among them should be famous Jashodaben Narendrabhai Modi, the wife of India’s present Prime Minister. Thus, both legal divorces 1.8 plus separation among Hindus amount to 7.3 per thousand women. This fact brings the Hindu divorce and separation rate to be quite higher than that of the Muslim divorce rate which is 5.63 per thousand women in 2011 census, wherein separation or abandonment is not a significant factor due to easy divorce and notorious use of triple talaq.
Unfortunately the media houses in India prefer to run after myths while creating a sensation since it suits their TRPs and boosts them as ‘jehadists’ against ‘orthodox’ Islam.
In fact, the triple talaq in one go is forbidden and severely condemned in Islam. Through its strictures, Islam neither appreciates triple talaq nor polygamy. These practices are not common in Muslim society too. The survey says that very few people choose the way of triple talaq and they do it out of ignorance. But triple talaq if committed and proven will affect a couple’s lives as wife and husband.
A myth is being well propagated with all pomp and show by some neoliberal and anti-Islam ‘Khans’, ‘Akhtars’, ‘Taslimas’ and ‘Zakias’, who all are but not Muslims, save their Arabic worded names; they claim that triple talaq is neither in the Qur’an nor it is in Islamic Shariah, and ill-fated ‘mullahs’ have invented it; whereas the glorious Qur’an says:
“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment…” [Surah Al-Baqarah, Ayat 229].
It clearly directs that up to two talaqs only a husband may keep his wife back through the raj’at or should leave her to complete her period and thereafter permanently release her with good treatment. The Qur’an goes on describing the importance of keeping relationship and being fearful of Allah while delivering the rights of women till the end of this long Ayat (No. 229). The next Ayat unequivocally mentions the third talaq and the only option, available in extreme cases, for coming back together, if they choose so. Thus, the Qur’an says:
“And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other if they think that they can keep [within] the limits of Allah . These are the limits of Allah, which He makes clear to the people who know.” [Surah Al-Baqarah, Ayat 230].
In one of my articles previously ‘Talaq, talaq, talaq is a crime but it kills’ I detailed how triple talaq has been applicable since Prophet Mohammad’s (saws) lifetime. The Prophet (saws) though was angry owing to misuse of talaq and not following the spirit of Islam by some of his companions, yet he had enforced separation following triple talaq in one go on more than one occasion. [Note: The author has not given any reference to substantiate his claim. For, there are Ahadeeth to show that the Prophet (peace be upon him) did not approve concurrent talaq. eg: 1. Muhammad bin Ishaq Sahib AL MAGHAZI and he take evidence from Dawood bin Husain from Ikrimah from Ibne Abbas (RA), Rukanah bin Abd Yazeed divorced his wife three times. He became too sad. The Prophet (peace be upon him) asked, How did you divorce? Rukanah said I have given 3 talaaq. The Prophet (peace be upon him) asked in a single Majlis? He (Rukahan) said YES. (The Prophet) said then it is only one talaaq. If you want to do ruju (take back your wife) you can. Rukahnah did ruju.” 2. Mahmood bin Lubayd (ra) narrates that the Prophet (Peace be upon him) was informed that a man divorced his wife with three pronoucments all-together, at this (The Prophet) became very angry, he stood up and said: Is the book of Allah being mocked at in my presence? Until one person stood and said O Allah’s Apostle should I not kill him? (Sunnan Nasai’i) Read the detailed article here,]
The first caliph Abu Bakr (ra), the second caliph Umar bin Khattab (ra), who although introduced punishment against the defaulter of using instant triple talaq but enforced the outcome. Similarly all following Caliphs, Imams, scholars of Hadith and Islamic jurists, and all four major Sunni Islamic schools of thoughts – Hanafi, Shafie, Maliki and Hambali have been following it in the same way till date. [Note: Here again the author misses the fact. For, in Sahih Muslim it is narrated that Ibn 'Abbas (may Allah be pleased with him) reports that the (pronouncement) of three divorces during the lifetime of Allah's Messenger (peace and blessings be upon him) and that of Abu Bakr (may Allah be pleased with him) and two years of the caliphate of 'Umar ibn Al-Khattab (may Allah be pleased with him) was treated as once. But 'Umar ibn Al-Khattab (may Allah be pleased with him) said: "Verily the people have begun to hasten in the matter in which they are required to observe respite. So if we had imposed this upon them (i.e. regard the divorce pronounced three times in succession as irrevocable divorce, it would have deterred them from doing so). So he regarded it as such. (Sahih Muslim). Moreover, his statement that "Hanafi, Shafie, Maliki and Hambali have been following it in the same way till date is also not true as there have never been Ijma (a consensus) on the issue". Read the detailed article here,]
Those who are beating empty drums repeating falsehoods under the arc lights of the media, are but evil mongers. They are utterly ignorant about Islamic sciences and its civil and criminal law processes. They are of course tools of entertainment for some media houses around the world – Muslim masses have always been out-rightly rejecting them on their faces.
Here it is also noteworthy that some of India’s ‘shouting’ TV anchors and fanatic ‘bhakts’, including the law ministry have been claiming that many Muslim countries have banned triple talaq. This is just one more false propaganda. It cannot be banned by Muslim – groups or individuals. It can only be one or three applicable talaqs – an existing difference of opinions within Muslim scholars. Some Muslim countries in conditions consider triple talaq as one talaq and most of them made use of it illegal but they declare it effective, as the constitution of Saudi Arabia reads: “Triple talaq is illegal but effective”.
The matter was discussed in a conclave of Hai'atu Kibaril Ulama (The Council of Senior Theologians) of Saudi Arabia and after due deliberation they declared that in the light of the Qur’an and Sunnah three talaqs pronounced at one go shall have the effect of three talaqs. [http://islamtoday.net/bluetooth/artshow-32-6230.htm] [Note: There are two views in Saudi Arabia on the subject. Majority of the schoalrs in Saudi Arabia, most of them following Hanbli school of thought, consider triple talaq in one sitting i.e. concurrent talaq as one. There is a fatwa - decree, by renowned Saudi scholar Sheikh bin Baaz where he said: “This (three divorce in one sitting=1) was the view of Ibn ‘Abbaas (may Allah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from ‘Ali, ‘Abd al-Rahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwam (may Allah be pleased with them).
“This was also the view of a number of the Taabi’een (the contemporaries of the Companions), Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Sheikh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims.” Read the detailed article here]
Pronouncement of triple divorce is final and binding until intervening marriage. [Law of Divorce and Khula in Pakistan, page: 8: by Barrister Ali Shaikh] [Note: Like in other countries, in Pakistan too there are two views on the subject. The Council of Islamic Ideology in Pakistan said triple talaq is un-Islamic and liable for punishment. Backing the council's recommendations, chief cleric of the Deobandi Islamic educational institute, Jamia Binoria, Mufti Mohammad Naeem, said that three consecutive divorce declarations were against the Sunnah. Read the complete report here.]
However, it does not make sense for Indian Muslims what and how people in other Muslim majority or Muslim minority countries are practicing Islam. Indian Muslims and their scholars have been torch bearers in practicing ‘moderate’ Islam throughout the world, and some of them have been accepted as authoritative references on Islam for centuries. They have piles of works on Islamic theology – and the world is being benefited till date. They should remain so as independent as they have been being within the parameters of Shariah.
The triple talaq is a terrible use of law. It is an abuse of legal dispensation by some Muslim males. They should be held responsible and punished to minimize the misuse. Along with them all those who oppress women should be punished too; including those who without offering divorce remain separated from their wives and torture them both physically and mentally throughout their lives. Abolishing triple talaq or changing the Islamic personal law is not the solution. Sensitizing males about the rights and respect of women is the best solution.
Polygamy permissible in Islam with strict conditions
In Islam polygamy is allowed with strict conditions. That is why polygamy is not widespread in the Muslim society in the whole of Indian subcontinent. Very few Muslims get married to more than one wife. Sometimes it is even done as per the wish of the first wife or at least with mutual desire.
Some of them do so because of the need, such as first wife is suffering from chronic disease or because of the wish of having either a child or a male child while a very few of them practice polygamy with wrong intention too. It is not a fault of law but it is their personal crime if they oppress their first wives after getting married to other women.
It is important to note that those who are not allowed constitutionally to practice polygamy are more polygamous than Muslims. How many Indians are actually polygamous?
Exact data on the subject is hard to find today, primarily because the 1961 census was the last one to look at marriages by religion and community. That survey, in fact, found that incidence of polygamy was the least among Muslims, with just 5.7 percent of the community likely to practice it. Hindus actually had a higher incidence rate of polygamy, at 5.8 percent, although other communities, including Buddhists and Jains, were proportionally even more likely to practice polygamy. 7.9 percent of Buddhists and 6.7 of Jains were polygamous. At the top were tribals, 15.25 percent of whom were polygamous.
Notably, article 25 of the constitution of India describes Sikhism, Jainism and Buddhism as parts of the Hindu religion, though these religions are fighting to constitutionally get separate religious identities.
Explanation II of sub clause (b) in clause 2 of the article 25 says: “The reference to Hindus will be construed as including a reference to persons professing the Sikh, Jaina and Buddhist religions …” Thus if you club together the constitutionally defined Hinduism, then the rate of polygamy climbs among Hindus to as high as 20.4 percent excluding Sikhism, as we do not have data available for it in hand.
The takeaway, as per the 1961 census data thus stands that 5.7 percent Muslims and 20.4 Hindus are polygamous.
Contrary to the claim by the government of India and a few ‘feminist’ mockers that “polygamy is unIslamic” and the Qur’an does not permit it, the glorious Qur’an says:
"And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one ...” [Surah An-Nisa, Ayat 3]
Precisely, polygamy is a conditional option but allowed in Islam. However a recent survey was conducted by a team of journalists from ummid.com in Malegaon, Maharashtra in India to fact-check the hotly debated so-called prevalence of polygamous cases among Muslims on the ground zero level. Malegaon is a Muslim majority city with 7 lakh population and 78.95 percent Muslims. The report reads:
“The quick survey conducted by ummid.com amidst the ongoing debate on the subject following pleas in the Supreme Court by the Modi government and some women activists seeking a ban on polygamy also showed that there are just 02 men in this hugely Muslim populated city who have three wives.” It further goes on “…just 151 men in Malegaon - a city of more than 05 lakh Muslims, have two wives,.. and none with four wives” the latest survey showed. [http://ummid.com/news/2016/October/17.10.2016/ummid-dot-com-survey-on-polugamy-malegaon.html]
Incisively, Malegoan has 5 lakh Muslim populations, consider 50 percent of them are females, thus 2.5 lakh are males. Further make a deduction of 40 percent as they are either not married or children, thus total number of married men stands to roughly 1.5 lakh. Now the total number of men having more than one wife is 153 out of 1.5 lakh that is an astonishing 0.10 percent only.
This latest survey in Malegaon and the census data from 1961 are clear indications that banning polygamy will not make any difference and will not stop polygamy or oppression upon women. For, most of the polygamous males in the country are those who are not permitted by law to practice polygamy.
Why UCC is not possible in India
Diversity is beauty of India. The Indian constitution ensures “justice, social, economic and political” to all citizens. It has adopted measures for the protection of the rights of the religious and ethnic minorities and of the socially and economically disadvantaged classes such as the scheduled castes (SC) and scheduled tribes (ST). As, different kinds of flowers add to the beauty of a garden, in the same way people with different cultures and colours are the beauty of this awesome country. This is the sole idea of India.
One country one law is not possible here. Adivasis have their own customs and cultural mores. A man can have many wives and a woman can have many husbands too. They have different ways of marriage and also different rituals for burying the dead. A large section of Hindus practices different religious customs in different places.
A comparative study of the personal laws of Hindus, Muslims and other minorities will reveal that the sheer diversity of these laws, coupled with the dogmatic zeal with which they are adhered to, cannot permit uniformity of any sort in personal laws. In fact, the heterogeneity of Hindu law itself is such that even the possibility of a uniform Hindu code is ruled out.
Talking of marriage alone, under the Hindu Marriage Act 1955, marriages may be solemnised in accordance with the rites and ceremonies of a variety of people who come under the definition of a Hindu. For instance, according to the saptapadhi form of marriage that is followed mostly in northern India, the marriage is deemed to be complete and binding when the couple take seven steps of rounds with the sacred fire – known as saath phere.
On the other hand, in the south suyamariyathai and seerthiruththa forms of marriage are followed. Under these, the marriage is valid if the parties to the marriage declare in the presence of relatives that they are marrying each other, or if they garland each other, or put a ring on each other’s fingers or if the groom ties a thali or Mangalyam around the neck of the bride.
Likewise, in southern India, a Hindu man can get married to his cousin and even to his niece but in other parts of India, Hindu men cannot get married to their cousins and nieces.
Also, for a marriage to be valid under Hindu law it has to be solemnised in accordance with the customary rites and ceremonies of at least one of the parties. Thus, if a Jain marries a Buddhist by performing the rites of a Sikh, the marriage is invalid. [Sakuntala v Nilakantha 1972, Mah LR 31, cited in Family Law by Paras Divan]
It, therefore, needs to be asked if it is possible or practicable to reconcile these divergent laws and formulate a uniform or common code that is acceptable to all communities.
India already has an optional civil code in the form of the Special Marriages Act 1954. This, read with similar acts such as the Indian Succession Act of 1925, provides a good legal framework for all matters of marriage, divorce, maintenance and succession for those who may wish to avoid the religion-based laws.
The Uniform Civil Code in India is an illusion, and a political claptrap. It is illogical as well as impossible to bring all jumping chickens in one narrow basket. So why this government is creating a hysteria among common men through Law Commission of India, is better known to Mr. Modi and people sitting in the realm of RSS headquarters in Nagpur.
If Prime Minister Mr. Narendra Modi really wants to empower Muslim women in India, as he bawled in his Lucknow speech recently, then he should come out with three doable policies.
- He may bravely enact proportionate reservation for Muslim women in job and education; they will be gradually empowered in real sense.
- He may restrain misuse of drugs which is a major cause of oppression for all women including Muslim women.
- He should urgently endorse a law on prevention of communal riots where Muslim women are proven to be the worst victims time and again.
Will Mr. Modi and his government reflect about even any one of them?
[The author M. Burhanuddin Qasmi is Editor of Eastern Crescent and Director of Markazul Ma’arif Education and Research Centre, Mumbai.]