Why must only ‘Muslim’ men in India go to jail for abandoning wives ? 

I first heard of ‘Halala’ years ago from then Union Minister in the Rajiv Gandhi cabinet, Arif Mohammad Khan. He had been bitterly opposed to the Muslim Women (Protection of Rights on Divorce) Bill of 1986 and in an exclusive interview to me for the now defunct magazine Eve’s Weekly, he had said passing the Bill into law would make the Indian Muslim woman the most deprived of all Muslim women anywhere in the world.

At the time he had explained to me the practice of Halala – a divorced Muslim couple could not remarry unless some other man married the woman and divorced her specifically to enable her return to her first husband. But such a facilitator would be ostracised by the community and virtually treated like a pimp. So, no good Muslim man would come forward for such a facilitation. That is why men proclaiming triple talaq on their wives had to be, well, terribly careful and not seek divorce in a fit of pique, Khan said. And that is why the Quran was specific and cautious about divorce and triple talaq.

The Muslim Women’s Divorce bill passed into law anyway and over the years the Islamic practice of marrying four times has been both misused and misinterpreted frequently. It has caused a lot of resentment among Hindu bigots as well and, dare I say, envious men from the majority community who believe their Muslim counterparts are allowed such a great time by their religion. But here is the twist – every Muslim man who has more than one wife at a time is indulging in a practice forbidden by the Quran. According to my understanding, from conversations with experts, the Prophet had allowed his followers to marry up to a maximum of four times, yes, but only one woman at a time. And the man had to have a good reason to divorce his wife before marrying another.

At Independence, before the codification of the Hindu personal law, Hindu men could marry even a hundred times if they wished and, unlike in the Quran, there was neither a concept of divorce nor any obligation on them to support their previous wives – they could be abandoned at free will and there would be no moral, legal l or monetary consequence. It is only after the passing of the Hindu Code Bill, bitterly opposed by upper caste Congressmen, including India’s first president Dr Rajendra Prasad, that bigamy and polygamy among Hindu men was outlawed, Hindu women got the right to divorce and an equal right to property.

While the Muslim personal law had its own traditions about a woman’s inheritance and right to property, successive governments have failed to codify the personal laws of other religions, including Christianity, making women in these religions more vulnerable than Hindu women who are now equal to men by law and by the Constitution.

India has been somewhat backward in this regard for even the Pakistan Law Commission had codified the Muslim Personal Law in that country and Pakistani men are forbidden from marrying more than once without divorcing the first wife - and then only up to a maximum of four times; as specified by the Quran. They often don’t marry the four times because parting with their property to their earlier wives proves too expensive.

Talking of expensive, here is another twist in the tale – while researching on the issue, I came across reports of the Anthropological Survey of India which clearly states that more Hindu Marwari and Jain men had two wives at a time than Muslim men. And before the courts forbade a Hindu man from converting to Islam to marry a second time (like actor Dharmendra did Hema Malini) unless he had married under Islamic law the first time too, such second marriages proliferated.

But why just Marwaris and Jains? Because often they were the richest men in the country and could clearly afford two or more establishments. By contrast, majority of Muslim men in the country are poor and cannot afford a second establishment, so they stay loyal by the force of circumstances to their first wives.

However, it is these rich businessmen who are now more guilty of halala than the Muslim men. It is an open secret within the community that corrupt mullahs and maulvis and some immoral Muslim husbands make illegitimate use of halala to their own economic benefit.

In hundreds of small towns and villages, a rich man noticing an attractive Muslim woman pays her husband large sums to instantly divorce her and to the mullah to convert him to Islam so that he can marry the woman for a few days. After his lust has been satisfied, he offers the woman triple talaq.

So outlawing triple talaq now is going to put a lot of noses of such morally corrupt men, both Hindu and Muslim in equal measure, out of joint.

But as the debate over this malpractice of halala rages, many Muslim men too tell me that they had never heard of the word until the controversy over the Muslim Women (Protection of Rights of Marriage) bill became commonplace. Advocate Fazal Sayyed, an expert in Muslim jurisprudence, now tells me that is because halala is not “Allah-given law but a man-made rule”.

According to him, the practice of triple talaq is common only among the Hanafi sect of Sunni Muslims - other Sunnis following the Maliki, Shafi and Hanbali schools do not practise triple talaq and, of course, other Muslims like Shias and Bohras have never practised it either. According to Sayyed these Hanafis exist only in India, Pakistan, Bangladesh, Sri Lanka and Afghanistan and the practice became common among them because Muslims in the subcontinent began their civilisation as nomads.

Be that as may, if the government pushes for the Muslim Women’s Marriage bill in its current form then two things are obvious – it will hurt Muslim women economically as much as Rajiv Gandhi’s Divorce bill had done. Sending their husbands to jail will deprive them and their children of even the miniscule support mandated by their personal law. And to use Arif Mohamnad Khan’s words from all those years ago in a different context, it will render the Muslim man abandoning his wife the only man anywhere in the world, Hindu, Muslim, Sikh, Christian, Jew or of any other faith, the only man to be jailed for abandoning his wife.

And, of course, it will violate Article 14 of the Constitution.

(Views published are the writer’s own)