How does government plan to implement triple talaq ban?

I recently had an opportunity to listen to Tariq Ramadan, professor of contemporary Islamic studies at Oxford University's Pembroke College. During his lecture, he said: "We have a problem with women in Islam."

As most of the crowd tried to grapple with what he meant, he repeated, "Yes, we have and we also have a problem with men," adding, "in fact the problem with men is deeper than the problem with women". He then went on to elaborate on the "patriarchal dimension" and "patriarchal reaction" to different issues.

I was reminded of this lecture by Professor Ramadan reading the news of the Allahabad High Court where a single judge bench has declared that instant triple talaq is a "cruelty against Muslim women," futher adding, "no personal law board is above the Constitution".

To be clear, this is not the first time that a court of law in India invalidated the practice of triple talaq, the most famous being the 2002 case of Shamim Ara, where the Supreme Court said instant triple talaq in one sitting neither dissolves a marriage nor ends the husband's liability.

Instant talaq, often considered as talaq al biddat or innovation, has been regarded as necessary evil in most Sunni schools of jurisprudence although Salafis and some liberal scholars deride it as unIslamic. It needs to be pointed out here that arbitrary abuse of this practice is punishable, even in those schools who advocate for its continuation.

Although there is no authoritative data on how rampant the practice is, there is no doubt that its uninformed abuses affect women, especially those poor women who are financially dependent upon their husbands.

Social evil

Even those Hanafi clerics who vehemently defend instant triple talaq have repeated that it is a "necessary evil". In fact, the All India Muslim Personal Law Board (AIMPLB) said in its affidavit that if instant talaq is not allowed, husbands may resort to murdering estranged wives to avoid a long-drawn legal battle, and consequently it is meant to protect them.

That brings me to the "patriarchal dimension" and "patriarchal reaction" to issues especially concerning women and their basic fundamental rights.

No doubt reform within Sharia laws is very important and needs to be pushed for. It is not really the battle of sects or religion but the struggle for the empowerment of women. The debate must not remain confined to veil or talaq or entering Haji Ali Shrine, but that young girls are fighting everyday to go to school and colleges and to work, while simultaneously continuing to practice their religion.

To be sure, this is not a battle that only Muslim women are fighting but it's an ongoing struggle for all women to fight everyday sexism and dismantle entrenched patriarchal institutions.

However, one must remember that any reform in any society can only come from within, with lager education and awareness campaigns and most importantly taking on board Muslim scholars and jurists, at least those liberal ones who are willing to have engagement on the subject.

Failure of liberal class

One major failure of the so-called champions of reform within Muslim personal laws (MPL) is that it has very few jurists and scholars of Islamic laws and practices. That, to my mind, is part of the problem as clerics' influence on Muslim society, especially on matters related to religion, is far stronger than one can imagine.

In fact, the extreme position they have taken is a consequence of their apprehensions of losing relevance due to the extreme divide between two sides. The AIMPLB, the self-declared champion of Muslim rights, has hence vehemently opposed any attempts of demand for reform in Muslim personal laws, arguing that they will not tolerate any interference in the Sharia, either from within or from outside.

It is as much also the failure of universities with Islamic studies departments, especially Aligarh Muslim University, Jamia Millia Islamia or Aliah University, which can emerge as common meeting grounds but have largely failed to rise above narrow parochialism.

Further, by clubbing the debate of MPL with the Uniform Civil Code (UCC), the short-sightedness of liberals will end up doing more harm than good to Muslim women. I write with full responsibility that if any reform in the MPL is not made in the coming years, it is as much a colossus failure of liberal Muslims and all other champions of UCC as the adamant and myopic outlook of Muslim clerics, who appear completely out of touch with changed times.

Most Muslim liberals who claim to have all the knowledge of the world have failed to read the pulse of the community, not simply represented by the educated chattering class. Take the example of the half-baked survey done by Bharatiya Muslim Mahila Andona (BMMA) among about 500 respondents.

In response, AIMPLB has already collected lakhs of signatures not just by men but also women and have constituted a women's wing to counter, what they have termed as propaganda of the BMMA. Their counter demand: "Reject uniform civil code. I do not want any changes in Muslim personal law. I want freedom of religion in India".

On the other hand, non-Muslim liberals view the Muslim community through the binary of modernity. They seem to be scared of anything Muslim and have the solution to all problems in UCC.

Imagine a scenario when, by law, triple talaq is banned. What implications will it have?

To answer this question, take the example of polygamy that has been banned by law among Hindus, yet from Dharmendra to Karunanidhi to Mulayam Singh Yadav to cabinet minister Ram Vilas Paswan, they all managed to have polygamous marriages without raising any eyebrows. In fact, according to some reports, the prevalance of polygamy is higher among Hindus than Muslims, where it is still legal.

So how will the talaq ban be implemented among Muslims? Will the police act on its own, or will they only act if the wife lodges a formal complaint, like it is for Hindu men who marry again?

Under the influence of clerics, or religious belief, the majority of women may accept the talaq as valid and consider it a sin to stay with the husband anymore. How will the police or court of law act in such cases?

If the government is really serious about reform, it needs to make registration of all marriages, Hindu or Muslim or anyone, mandatory under law. This can be the first step towards the utopian dream of UCC.

I have argued earlier that instead of talking of the UCC, it should help in setting up an autonomous legal body comprising clerics, experts of Islamic jurisprudence belonging to different schools of thoughts as well as women scholars - a sort of modern day Darul Qaza (Islamic court) - under Arbitration and Conciliation Act, 1996, to adjudicate matters related to marriages and divorces.

Another monumental mismanagement

In its thirst to grab the headlines, the current government loves to give shock therapy and hence, it first demonetised 86 per cent of the currency in circulation and then began promoting the e-wallet, plastic money and internet banking in a big way, while it should have been the other way round and that too in phases. The chaos led former PM Manmohan Singh to call the drive "monumental mismanagement".

The top-down approach of bans by either the government or courts can never bring real social reform without preparing the ground for the same. It is the work of decades and needs honest investments in education and social campaigns.

Unless this government wants another failure of the same scale and wants to force the Muslim leadership and community to retreat within shells, it should refrain from any blanket ban or talking about UCC in the same vein as protecting Muslim women, without taking the community on board.

Finally, the alacrity that the court and the government show in giving lip service to the issue of talaq, should also be shown in other important issues facing the community in providing a sense of justice vis-a-vis communal riots and arbitrary arrests of youth in the name of terror, that affect women as much, besides the demands for quality schools in Muslim pockets and equal opportunities in jobs and other walks of lives.

Also read: Reform Muslim personal laws, but spare the clerics