A travesty of divorce: Triple talaq has nothing to do with religion

Tabish Khair in The Hindu



It is easy to blame political parties for the mess around the triple talaq issue. But before doing so, one has to put the matter in perspective: it is not political ‘manipulation’ that came first; triple talaq already existed. Can you really blame others for tossing stones into your house when you have a gaping hole in the roof?

True, only a minuscule percentage of Muslim men practised triple talaq, but still the number of afflicted women ran in the tens of thousands. There was no justification for it — legal, political or social. There wasn’t even a convincing theological argument in favour of it, as the Shias wisely accepted.

Rashly rejecting a constructive say in the matter (and, once again, failing to position itself on the progressive side of history), a section of the so-called Sunni leadership in India is now resorting to various other objections — some of which are justified and many of which are not — against the law that the Bharatiya Janata Party (BJP) government seeks to pass to stop triple talaq.

This unholy mix of objections has even confused Muslims who were against triple talaq, partly because of the general suspicion that Muslims bear towards the BJP. This suspicion is misplaced at times, but it is not groundless: if many Muslim leaders have failed to build bridges, many BJP politicians and (more often) their acolytes have also trumpeted their dislike for Muslims and everything Muslim. It has been a mutual failure of the sort that no nation can afford.


Need for a law

Despite the reasons for suspicion among Muslims, there is a pressing need to legislate on this issue. Triple talaq is not going to go away without a law against it. Perhaps this could have been a possibility if Sunni leaders had collaborated in delegitimising it publicly. But having chosen to miss that chance, they have left the government — BJP or not — with no option but to pass a law against triple talaq.

Legislation against triple talaq is not a law against divorce, as has been made out in some Muslim quarters. It is simply a law that ensures equal rights to the wife. Its purpose is to ensure that a husband does not abandon his wife outside a proper legal set-up, which may obtain some rights for the woman after years in a marriage. Of these rights, financial maintenance is central in a place like India, where often wives ‘do not work’ (read: wives work at home but without remuneration) or their earnings are appropriated by their husbands.

The greatest failure on the part of so-called Sunni leaders has been their inability to see triple talaq as part of a major social problem that has nothing to do with religion: wife abandonment. But viewing the matter through their own set of saffron-tinted glasses (as against the green-tinted ones of the Sunni leadership), the BJP too has failed to see triple talaq as a type of wife abandonment, which exists in other forms and other communities too. It is common knowledge that far more (Hindu) wives are abandoned by their Hindu husbands without a divorce than (Muslim) wives are ‘divorced’ with a summary triple talaq by their Muslim husbands.


Abandonment by the husband

Please note that wife abandonment is not the same as the decision by a married couple — Hindu, Muslim, or whatever — to live separately without suing for divorce, if this decision is mutual, legally negotiable by both parties, and without any undue pressure on either party. Wife abandonment involves a one-sided decision by the husband to live separately from the wife, without providing her with legal and mutually negotiated maintenance, and either refusing to divorce her, if she should so desires, or divorcing her arbitrarily and without equal legal recourse. Triple talaq is a form of such an arbitrary divorce, a travesty of divorce. But it is by no means the only form of wife abandonment — within or without Muslim communities.

If triple talaq is seen as a type of wife abandonment, the government could come up with a better law than the current proposal. The proposed law seems to actually recognise triple talaq as effecting a divorce, while penalising the husband with criminal sanctions. This is illogical and provides the wife with no real protection. Instead, triple talaq should be considered a type of wife abandonment, along with other versions in all communities. It should not be accepted as an effective divorce, but as abandonment by the husband and grounds for the wife to obtain a divorce in her favour. Its ‘use’ should be automatically converted into a case of legal divorce through the law courts, which can then implement the conditions of divorce in favour of the wife, with added penalties on the husband.

As men resort to triple talaq and other forms of wife abandonment only to shirk their financial responsibility, this would be a far more effective course than needless criminalisation.

No law is foolproof. Even laws against murder can be misused, and they do not eradicate the incidence of murder. One cannot demand a foolproof law or a non-punitive ‘law’ (as that would be no law in effect!), but one has every right to expect a comprehensive and fair law. Countries are built with such laws. And they can be written, if we take off our variously tinted glasses.