Salman Khurshid: Criminalising triple talaq is unlawful

Salman Khurshid

It was in May last year, when the media reported that the Supreme Court had appointed senior advocate Salman Khurshid to assist as amicus curiae before the bench hearing petitions against triple talaq and how it violated the rights of Muslim women. In his recently released book, titled Triple Talaq: Examining Faith (Oxford University Press), Khurshid, who was former Minister of External Affairs under the Congress regime, clarifies that this wasn't true. "I had taken it upon myself to intervene in the matter, in person," writes Khurshid, adding that he had actually wanted to offer an amicus brief, without supporting any side. "I attempted to explain the situation several times to the press, but it seemed most were little concerned with the difference. My only aim was to assist the Court in reaching the truth."

The book is no different. Khurshid, while refusing to make his stand clear, provides a comprehensive overview on the contentious issue, which stirred many a debate last year. He also dives deep into other aspects of this practice - why triple talaq is problematic, why it has thrived, what the Quran and Muslim religious leaders say about it, and the reasons behind the court's decision. "Not everything one says is finally included in the judgment and not every one reads judgments closely... Someone had to put things into perspective beyond the wild propaganda. There is nothing worse for a plural society than demonisation of a community or its norms," explains Khurshid of why he wrote the book, in an email interview.

In the book, Khurshid also highlights how there's a general misconception about divorce under the Muslim Personal Law. He mentions how he was once chosen to speak about triple talaq at a university, where a "feisty, young lawyer, who came prepared for a lively debate" inevitably questioned the unilateral right of the husband to give talaq. "I carefully explained that there are several other methods that gave the right to the wife as well, except that it required an intervention of a qazi or judge," he says. Here, he points out to the most prescribed modes of talaq - talaq-ul-sunnat, ila, zihar and talaq-ul-bidat. It's within talaq-ul-bidat that a husband pronounces talaq thrice, while a woman is entitled to ask for judicial divorce under zihar.

"The very fact that we needed five judges of the Supreme Court to decide the matter shows how much confusion there is. And then the judges could not agree entirely amongst themselves. After the judgment the government continues to misconstrue or deliberately misunderstands the judgment and triple talaq declared non est," he adds, citing how Justice Rohinton Fali Nariman, who was part of the bench that struck down triple talaq, called Islamic law of marriage and divorce 'astonishingly modern'. "But, then one has to see how 1,400 years ago Islam provided what has just recently been made part of the common law," says Khurshid.

Having said that, the former Union minister says that he has no issue with courts, particularly the constitutional courts intervening, in cases concerning Muslim law "because our constitutional scheme recognises that right and need". "But it is important that judges are adequately equipped to deal with Personal Law as indeed any specialist area of common law. There is, perhaps a greater need for briefs from knowledgeable persons," he says, explaining again why he chose to intervene.

Khurshid also doesn't understand the merit of the bill criminalising triple talaq. Clause 4 of the bill, officially called Muslim Women (Protection of Rights on Marriage) Bill 2017, states that pronouncement of triple talaq, shall be punished for a term which may extend up to three years and fine. "It is a futile and unlawful exercise with no real benefit to women," argues Khurshid. "If the government is serious about welfare of women it should legislate to assist deserted and divorced women unable to make two ends meet." The bill, which was cleared by the Lok Sabha in December last year, is still awaiting a green signal from the Rajya Sabha. "I sincerely hope good sense prevails and that we do not succumb to the pressure tactics being used by the government. Women and men want to see reform of the manner in which the law operates and correct the distortions that have crept in."

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