Salman Khurshid’s Triple Talaq Book Counters Anti-Islam Propaganda

Salman Khurshid’s new book decodes the Triple Talaq issue, a classic instance of legislative over-reach.

In any public discourse on populism, we in India invoke a set of totemic images drawn from electoral politics and the so-called appeasement of Muslims, the peculiar and pejorative coinage of love-jihad and the bogey of triple talaq. Of these, the matter of triple talaq has become a handy stick to beat the Indian Muslim with. In the popular imagination, it would seem that every Muslim man is ever ready to pronounce the three words that can, on the slightest whim, rid him of his wife.

So widespread is this misconception that the majoritarian discourse has wrenched it from its theological moorings, and projected it as a blot against humanity, and presented it as another example of how patriarchal, misogynistic and illiberal Islam is. And the Muslims, by wavering between offensive and defensive tactics, have not helped their own cause. Public intellectuals, assorted liberals and feminists have further muddied the waters by chipping in with views ranging from fuzzy to outright distorted. Naturally, therefore, when the government of the day claims credit for 'abolishing' such a regressive practice, it expects kudos from all quarters.

Salman Khurshid’s Ringside View of Triple Talaq

Salman Khurshid's erudite book, Triple Talaq: Examining Faith, looks at the dissolution of a Muslim marriage by the utterance of the word 'Talaq' uttered thrice in a row, and locates this practice at the intersection of religion and law. Working on Shayara Bano vs Union of India, the lead case amongst several others that appeared before the Constitution Bench headed by Justice Khehar, the then Chief Justice of India, Khurshid had a ringside view of this seminal case which commenced in the summer of 2017.

Working on the premise that while the defence of the Personal Laws of the minorities on moral and constitutional grounds is imperative, the Muslim Personal Law Board (the 'Board' henceforth) – who had initially engaged him – did not deem it necessary to examine the nature of those laws.

However, finding himself summarily replaced by his equally learned colleague Kapil Sibal (the 'Board' offered no explanation to Khurshid for this replacement), he decided to press on. Moving an Application for Intervention, he was allowed to present his stand before the court. While the media reported that he was appointed amicus curiae by the court, the truth, as Khurshid records is: '...that upon being asked which side I supported, I responded that I was offering an amicus brief without fully supporting either side.' Not entirely displeased with the turn of events, he notes:

‘Sadly though, the Board seems least concerned about educating people about the idea of religion, and restricts its endeavours to amplifying dimensions of religion on the assumption that no further conceptual exercise is necessary.’

Salman Khurshid, Author/Politician

Freed from the limitations of the Board's restrictive brief, Khurshid could explore the contours of a highly contested terrain and, in the process, attempt to clear at least some of the misconceptions around Islam itself. And it is precisely this exploration that he tells like a story in polished prose in this book. Always lucid, always eloquent, here he is virtually a man on a mission.

The Curious Case of Triple Talaq

Given the challenging times that the country is facing, given the high-decibel rhetoric that is passed off as informed debate, given the increasing tendency to be scornful of secularism, given also a propensity towards populism that is devoid of moral authority, the 'triple talaq case' acquires a significance that is not commensurate with the actual number of Muslim men who divorce their wives by simply uttering the word 'Talaq' thrice in quick succession.

Triple talaq, or talaq-e bidat, is the proverbial tip of the iceberg; it is inextricably linked to the issue of the Uniform Civil Code, at present with the Law Commission of India, which is, as Khurshid says, 'seen by its ardent advocates as a panacea for many social ills in our society (although minorities fear it to be the final undoing of their identity).' As Khurshid notes in his Introduction, it's the times we live in that lend a political tone and tenor to what would otherwise simply be an issue of reform:

‘The idea of India, taken for granted by people for the many decades since independence, is under severe scrutiny – some might even say under stressful attack. Debate itself, far less dissent is being linked with ambiguity or apathy towards national purpose and patriotism. Vile and questionable actions are either being overlooked, or worse, being applauded as retribution. Many sensible people felt perhaps this was the opportune moment for the public dissection of contested notions of justice and religious rights. Yet, one can see that the government of the day, not to be outpaced by street vigilantes, is making a concerted effort to put its stamp on the social and political structures of the country.’

Salman Khurshid, Author/Politician

A Brief History of the Triple Talaq Litigation in India

Written as much for the student of law and religion as for the lay reader, Triple Talaq: Examining Faith begins with the judicial history of this issue. The seminal judgment of Justice Badar Durrez Ahmed in the Masroor Ahmed case in the High Court of Delhi had ruled that three talaqs given in one setting shall count as one. It then goes on to examine, in an unhurried manner, what the Quran and the hadith have to say on marriage and divorce. It also examines the practice in other countries with large Muslim populations.

Khurshid lists the treatment of talaq by jurists under the different schools of jurisprudence, namely the four main maslaq among the Sunnis: Hanafi, Maliki, Shafii and Hanbali. The Shias, on the other hand, are united in the consensus that triple talaq at one time will be counted as only one, and triple talaq is therefore a non-issue for them.

Triple Talaq Today

The book also highlights Khurshid's own submissions before the court. Being an intervener, he came with no prayer per se; though he did attempt to shed light and offer solutions. Chief among his submissions was the observation that it is not the role of the court to interpret Muslim Personal Law. He’d suggested that changes in personal law in other countries may serve as a guide to the court while considering the issue of triple talaq. He also pointed out that at present, the qazis who solemnise marriages and maintain records, are not empowered to act as an adjudicatory authority on issues relating to marriage or divorce under Muslim Personal Law.

The last chapter contains excerpts from the three judgments in Shayara Bano vs Union of India, 'each concurring and dissenting with the others in part', and affirms the many different ways in which it is being read and understood. Welcomed by some and rejected by others, it is nevertheless a landmark judgment. And Salman Khurshid's book is a timely and important one, precisely because it attempts to provide as much information as possible accompanied by the many divergent philosophical, moral, theological and legal views on the subject.

While Salman Khurshid's book ends with the pronouncement of the court, the debate over triple talaq continues to rage. Also, while few would argue with the merits of the judgment itself, there are many who found the Muslim Women (Protection of Rights on Marriage) Bill, 2017 introduced in the Lok Sabha during its winter session to be seriously flawed. In making instant triple talaq a punishable offence with a jail term and a fine, and also making the pronouncement of triple talaq itself a non-bailable offense, the government seems intent more on making a political point rather than securing gender justice. A classic instance of legislative over-reach!

(Rakhshanda Jalil is a writer, translator and literary historian. She runs Hindustani Awaaz, an organisation devoted to the popularisation of Urdu literature. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)