An insight into the triple talaq controversy and other Muslim personal laws in India
By : Imaan Saudagar
Being a law student, I’m often asked questions regarding my opinion about the
oppressive Islamic laws in India. The recent Supreme Court judgment, which scraps
the triple talaq system of divorce, has raised hundreds of questions across the country
as to whether the judgment is an infringement of the right to freedom of religion of
Muslims.
There is a difference between the sharia law as established by the Quran (Holy book
of Islam) & hadith (prophetic narration); and the Muslim personal law that is
applicable in India. When I studied family law as a part of my syllabus in Third year,
I was never able to draw parallels between what I’ve been taught as a Muslim since
birth and what the law followed in the Courts were telling me.
Divorce in Islam is the most loathsome of all permitted things and should be used
only as a last resort after following certain stringent provisions as they have been
prescribed. In reality neither does the Quran nor does the hadith state or give the right
to any man to divorce his wife by saying ‘ I divorce you’ thrice; in one occasion.
The correct procedure would be to obtain divorce when both spouses mutually
consent to it, which is followed by iddat (cooling-off period of 3 months). After the
lapse of this period if the spouses do not wish to reconcile, then the divorce is
confirmed. The Sharia law as distinguished from the personal laws that were
applicable in India makes a provision, whereby the pronouncement of divorce in a
state of anger or the one said without an intention to divorce is held void. Any
deviation from this is considered to be a mockery of the book of God (Quran) and
should not be practiced.
So what is the reason that law in India is contradictory to what the
Islamic law actually states? The deviance from Muslim personal the Islamic law is a result of cultural
influence and personal convenience of people who are propagators of such laws. ‘The
triple talaq’ was a part of the Indian legal system, and does not exist in any Islamic
country across the globe. Such a tampered perception of the law exists only in South
Asian countries, which makes it quite evident that the source of such a law was not
authentic and is not derived from the Sharia.
The question about, women in Islam not being allowed to go to mosques have been of
major concern. As per the prophetic narrations, it is established that it was said, “Do
not prevent your women from going to the mosque, even though their houses are
better for them.
“1 The disparity is once again seen between the Islamic laws that were
established and those that are being followed and practiced in India.
Islamic countries across the world, which include, Saudi Arabia, UAE, Malaysia,
Turkey etc do not impose any restrictions on women with respect to their right to pray
in the mosque. It is again only in the South Asian countries, where there exists a
conflict between the Islamic laws and personal laws of the country. The reason for
this could be the illiteracy and lack of awareness towards the religion that exists in
South Asia.
2. Such derogatory laws cannot be Islamic laws, as they have not been derived from the
authentic source and need to be revised in accordance with the Quran.
1 Reported by Abu Dawud in al-Sunan, Baab maa jaa’a fee khurooj al-nisaa’ ilaa’lmasjid:
Baab al-tashdeed fee dhaalik.
Saheeh al-Jaami‘, no. 7458
2 Research shows that, south Asia is home to over 50% of uneducated people in the
world. (Business standard, New Delhi dated 15th December 2013)