Triple talaq, Uniform Civil Code and the Indian Constitution

The Holy Prophet PBUH declared, 'if something is flawed or wrong, my community will always be in disagreement over it' Photograph:( Others )

Others New Delhi, Delhi, India Oct 21, 2016, 07.20 AM (IST) Baran Farooqi

The issue of Uniform Civil Code for Indians is something that doesn’t make sense to me at all. I can say this on many counts, but the most important one among them is the fact that this idea goes against the fundamental spirit of the Indian Constitution. Our Constitution negates the principle of ‘one constitution, one personal law’ and allows for people of different communities and regional identities to maintain and preserve their culture and customs through the maintenance of their personal laws. 

It is common knowledge that there are several communities, including those belonging to what is defined as ‘Hindu’ as well as tribes in India who don’t fall within the broad rubric of Hindu law. They are adjudicated according to their specific personal laws. This is good for cultural diversity and the principle of pluralism of which India has always had reason to be proud of. Such a practice ensures the richness of our cultural fabric and prevents the mainstream or influential communities from gobbling up the identities of the less numerable or marginalised communities. India glows with the pride of special rights and privileges given to diverse communities. The non-application of Uniform Civil Code is a victory for plurality.

It, therefore, makes no sense to expect the Muslim community to be brought under the Uniform Civil Code under the pretext of reforming some of the gender-biased practices of a community. This would amount to interfering with a well-developed system of jurisprudence with its own set of highly nuanced checks and balances. Besides, such a step would lead to further insecurity in the Muslim community in their own country as this has been the long-standing agenda of the saffron parties, which have never seen any good in the Muslims of India. 

The important thing that needs to be said about unjust and unfair practices in Muslim society is that any reform in the interest of gender parity and women’s empowerment should come from within the community. The Prophet of Islam PBUH had given the community the authority to amend and reform laws in the interest of social justice and humanitarian values. 

The community has complete authority to draw and execute its own laws; it can also petition the government of the day to acknowledge the changes the community members themselves can make or would like to make in their personal laws. This is apparent in the amendments made in respect of the rules of nikah and divorce that were carried out by many Islamic countries or in such countries where Muslims are in the majority. If such countries can carry out amendments, what prevents Muslims in India from doing the same? 

I would take this opportunity to plead with the power banks of Muslim clerics in India to shed their insecurities of identity as well as selfish desires to rule over women. They should come forward with their own moderations of the system, which, in any case, is full of variations and inconsistencies. It also needs to be recognised that our social systems in all parts over the world are anti-woman and there is an urgent need to bring about a change of perspective without arbitrary enforcement of unwanted laws. 

The very fact that triple talaq or pronouncing talaq in one go of three utterances without any witness has been rejected by the majority of predominantly Muslim countries is itself proof enough that this is NOT a sacrosanct custom and can be done away with by consensus. The Holy Prophet PBUH declared, 'if something is flawed or wrong, my community will always be in disagreement over it'. 

Talking of the social system and the Muslims, an important aspect that is often overlooked is that the Muslim marriage gives a woman the right to say yes or no in marriage. Such a right is NOT given to men. They just cannot force a woman to marry them against her will. The woman also has the right to annul her marriage without giving any particular reason. 

The right to say yes or no inevitably grants the boy and the girl the opportunity to get to know each other before they marry and explore the pros and cons of the marriage. This ensures and builds confidence and mobility in the female. This is a significant part of the Muslim Personal Law but why does it remain un-enforced? Obviously, the practice or implementation of laws or precepts requires more than passing Bills. It calls for exercises of security building and welfare, respect and positive intent of preservation, not annulment of identity. 

I am completely against triple talaq or any other gender unfair practice in my community, but I would want the reform to come from within.