Javed Anand’s article, “Triple talaq: Silent reform in courtrooms isn’t enough to end the patriarchal stranglehold on Islam on Scroll.in, though written as a rejoinder to lawyer Flavia Agnes’ June 20 article, “This Muslim organisation’s campaign for a ban on triple talaq is commendable but blinkered”, fails to address key issues raised by her.

By misconstruing Agnes’ reasoned critique of Bharatiya Muslim MahilaAndolan’s “blinkered” campaign as a frontal attack on that organisation, the activist has missed the depth of field of her wide-angled analysis. His own perspective is so narrow that it distorts the real picture insofar as the status of Muslim personal law in India is concerned.

Reform is taking place

Agnes is absolutely right about the silent reform taking place every day in our courts. She calls it silent only because the media has not paid due attention to historic court judgments on Muslim law. Anand, however, chooses to downplaysuch decisive judicial interventions as being “simply not enough”!

It would appear from these shockingly impulsive remarks that Anand has not read any of the landmark Supreme Court verdicts on Muslim law, especially the one in the 2002 ShamimAra case.

In it, apart from stating that talaq, to be effective, has to be pronounced and defining the word “pronounce” as “to proclaim, to utter formally, to declare… to articulate”, Justices RC Lahoti and P Venkatarama Reddi cited two High Court judgments of 1981 – in the Sri Jiauddin Ahmed vs Mrs Anwara Begum case and Rukia Khatun vs Abdul Khalique Laskar case.

“…The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected…We are in respectful agreement with the above said observations made by the learned Judges of High Courts.”

The final judgment against Ara’s husband was pronounced on the basis of the twin facts that he “adduced no evidence in proof of talaq said to have been given by him" on the stated date and there were “no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.”

Put differently, this momentous ruling upholds the Quranic method of talaq while laying down the law that for a Muslim divorce to be effectual it must be properly pronounced and most importantly, be preceded by attempts, through arbitration, to bring about a reconciliation between the husband and wife. Indeed, the door to instant triple talaq has been shut so tight by the Supreme Court’s emphasis on these two prerequisites, that it renders futile any kind of semantic quibbling over the terms “invalid”, “illegal” and “unconstitutional” that Anand attempts in his article. Why should the apex court superfluously declare illegal what it has already delegitimised?

The Supreme Court being the ultimate arbiter and custodian of the Indian Constitution, its interpretation of laws enjoys inviolable finality. Article 141 of the Constitution states that “the law declared by the Supreme Court shall be binding on all courts within the territory of India.” Hence, the procedure of talaq legitimised in Ara’s case is the final law of our country insofar as termination of marriage by a Muslim husband under The Muslim Personal Law (Shariat) Application Act, 1937 – which provides for the application of the Shariat to Muslims in India – is concerned. Talaq pronounced by any other method will not dissolve the marriage.

In other words, the medieval fatwas of organisations such as the All India Muslim Personal Law Board on this issue do not matter as they stand overruled by the ShamimAra judgment. Repeatedly citing the refusal of Muslim religious organisations to “ban” instant triple talaq when their views no longer have any bearing on court decisions in India will only strengthen the Uniform Civil Code lobby.[To editors: please do not link any news report on UCC]

Activists like Anand must understand that the 2002 Supreme Court judgment categorically overturned the age-old stare decisis (the policy of courts to abide by legal precedents while making decisions) dictum on instant triple talaq that it is good in law though bad in theology. And if he thinks no one has heard of this remarkable courtroom reform, he must join hands with concerned citizens such as Agnes to mount “a visible, high-decibel campaign” that he has sought in his article to alert the Muslim community about it on the lines of what he is doing to confront “the ulema-perpetuated prevailing belief.” Downplaying landmark judgments will not help the cause for which he is fighting.

Defending the indefensible

The most astonishing aspect of Anand’s response to Agnes is his defence of Bharatiya Muslim Mahila Andolan’s self-styled Shariah courts functioning under the name Auratonki Shariah Adalat (Women’s Shariah Court). Agnes’ case is that such courts have no legal standing and the use of the term adalat, or court is “a manipulation.”

But Anand would have none of it. He tries to justify the existence of these adalats saying they are part of the Muslim women’s body’s attempts to breach the exclusive Muslim male domain of scriptural interpretation. It is surprising that Anand thought his readers would buy such a flimsy explanation.

The Bharatiya Muslim Mahila Andolan is certainly at liberty to provide pre-judicial counselling to consenting parties as per its understanding of Islam. But the question is: Does it have the right to use the nomenclature adalat for its arbitration centres, and deliver so-called verdicts?

Even arbitration centres established in accordance with The Arbitration and Conciliation Act, 1996 are not allowed to call themselves courts or adalats. They are referred to in the Act as “arbitral tribunals”, and their decisions are termed “arbitral awards.” Lok Adalat – roughly, people’s court – is perhaps the only institution that has adalat in its name, but it draws its legitimacy from The Legal Services Authorities Act, 1987.

Yet the Bharatiya Muslim Mahila Andolan’s legal aid centre not only designates itself an adalat (court) but asserts that “the legal aid provider women will base their verdicts on the Quranic injunctions…”, and that “the Auratonki Shariah Adalat will administer free, fair and speedy justice in the matter of marital and family discord based on Quranic principles.”

Auratonki Shariah Adalat also declares that “all grounds of divorce mentioned in the 1939 (sic) Sharia Act are applicable to the women visiting” it and “if the children are small the custody of the children will be with the mother, after the age of seven...the child will be given the right to decide.”

Interestingly, the body seeks to implement such pronouncements by taking recourse to “all secular laws” (they mention the Anti-Dowry Act and Prevention of Domestic Violence Act) utilising “existing legal machinery like the courts” and engaging with the “justice implementation machinery like the police.”

Would this not amount to judicial decision-making in the name of “pre-judicial arbitration” – the term Anand uses to describe their role? Besides, under what secular law will the courts and police ratify Auratonki Shariah Adalat’s “verdicts”?

In 2014, in the Vishwa Lochan Madan vs Union of India and Others case, the Supreme Court had ruled that a sharia court is “bereft of any legal pedigree and has no sanction in laws of the land” and is “not part of the corpus juris of the state.” However, it permitted such courts to amicably settle disputes provided the contending parties approach them voluntarily. But the “decision” will not be binding on anyone, including the persons who asked for it, the apex court said.

The right approach

In India, it has been observed that the number of Muslim women in search of redressal post triple talaq is several times larger than the number of people seeking pre-talaq counselling.

Therefore, wisdom demands that maximum time, energy and money be spent on providing legal support to victims of instantaneous triple talaq rather than excessively focusing on “confronting the male monopoly over the interpretation of Islam” that Anand seeks.

The battle against wrong interpretations is important and must be sustained to reclaim Islam from the medievalists. But what will ultimately help triple talaq victims are programmes that create awareness about the legal remedies available to them under existing laws – not signature campaigns asking for the abolition of practices that have already been delegitimised by the courts.

A Faizur Rahman is an independent researcher on Islam and founder Secretary General of the Chennai-based Islamic Forum for the Promotion of Moderate Thought