Blood for blood: An extract from Tamas

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July 31, 2004

A young man’s chilling initiation into the world of hate politics and violence. Extract from Tamas by Hindi writer Bhisham Sahni

Ranvir, the son of the president of the committee, followed Master Devbrat, the instructor of the gymnasium-cum-wrestling pit, the sound of Devbrat’s boots echoing in the cobbled lane. The fifteen-year-old Ranvir was bursting with excitement. Today he would undergo the test and if he made it, he would be taken into the fold.

No lane of the city ran straight. A lane would run straight for a few yards and would then be joined by another tortuous lane. The houses flanking the lanes almost seemed to topple over one another so packed together were they. The sound of Devbrat’s heavy boots was a familiar one in the lanes of the town.

Ranvir was still very young and his eyes had not lost their child-like curiosity. They even lacked that earnestness, so necessary when undergoing a supreme test. But in place of earnestness he had a sense of bravado, a blind determination to do or die at the behest of his mentor.

When Ranvir was very young, Master Devbrat would entertain him with stories of heroes of Indian history. There was an episode from Rana Pratap’s life, for instance, when the cat had stolen his food, leaving him famished and making him acutely aware of his total helplessness. Ranvir would have visions of Chetak, Rana Pratap’s favourite horse, as it went tramping over the hills overlooking the city. He would even see in his mind Shivaji watching a horde of approaching Muslims from the top of some hill. He also recalled the dramatic episode in Shivaji’s life when he had caught a Muslim ruler in a fatal embrace. Masterji had taught Ranvir the basic principles of knot tying and wall climbing. He had explained the characteristics of the ‘fire’ and the ‘rain’ producing arrows depicted in the ancient Hindu epics.

Ranvir was told by Masterji that the Vedas were the repository of all knowledge and held the secret of making the bomb and flying machines. Masterji talks of the marvels of yogic power had held Ranvir spellbound. ‘One having yogic power can achieve the impossible,’ Masterji would repeatedly impress upon Ranvir.

‘You know the story of that yogi, don’t you?’ he would ask his pupil, and then repeat a story he had often narrated. ‘A yogi had gone into a trance at the foot of the Himalayas. He achieved great occult powers. One day, when he had gone into meditation, a Muslim, an unclean man, came there with the mischievous intention of disrupting his meditation. You know these unclean people. They don’t bathe, nor do they wash their hands after shitting. They have no compunction in sharing each other’s spittled food. This ‘unclean’ person stood there glaring at the sadhu. As his polluted shadow fell over the sadhu, he opened his eyes. A gleam shot out of his eyes and singed the polluted man to death.’

These ‘unclean’ people would often revolve before Ranvir’s eyes. In his neighbourhood, the cobbler who sat by the roadside, mending shoes, was said to be an ‘unclean’ man. So was the tonga driver who lived in front of their house. Hamid, who studied with him at school in the same class, was also ‘unclean’. All the members of the family living next door were also considered to be ‘unclean’ and polluted. It must be some such person who had gone to the foot of the Himalayas to disrupt the sadhu’s meditation. Today, out of the eight boys he instructed, Master Devbrat had singled out Ranvir for the test. The boys were scared of Masterji. He wore khaki shorts and heavy black boots and spoke in a voice like thunder. His wrath was unpredictable and could fall on anybody without warning. The test which Ranvir was to undergo was secret and esoteric, only the initiates knew what it was.

The lanes looked desolate. At one place Ranvir felt as if they were walking along a thick web of darkness. As they drew nearer they discovered that the wall of a house had crumbled down and the darkness was seeping out of its debris.

Suddenly Devbrat stopped in his tracks. Although the desolate look of the lane had given Ranvir an eerie feeling, it had not been able to curb his exuberance. There was a narrow door framed against a long wall. Devbrat pushed it open. They stepped into a big courtyard at the end of which they saw the door of a narrow room across which hung a tarpaulin curtain. In the left corner of the courtyard lay two big heaps of rubble. The place looked deserted.

Walking across the courtyard, Master Devbrat pounded on the door. Ranvir heard the sound of coughing, followed by the shuffling of feet.

‘It’s I, Devbrat.’

The door was flung open. The old Gorkha chowkidar of the school stood in the door, peering at the visitors. He folded his hands in salutation and bowed his head.

It was dark inside the room. To one side lay a charpoy covered with a dirty bedsheet. A lathi stood against the right wall and by its side a chelum lay upside down. Over a wooden peg hung the chowkidar’s woollen overcoat and a long sword sheathed in a black scabbard.

Ranvir heard the crackling of hens and turned to look. About half-a-dozen white hens lay tied in a big basket in a corner of the room.

Holding Ranvir by the arm Master Devbrat led him into another courtyard, much smaller than the first and abruptly ending against the high wall of a neighbouring house. The Gorkha chowkidar followed them holding a hen in one hand and a knife in the other.

‘Ranvir, kill the hen,’ Master Devbrat said. The chowkidar handed Devbrat the knife. ‘Before you’re initiated into our fold you must prove that you possess a stout heart.’

Devbrat pushed Ranvir forward. ‘An Aryan youth must be strong in faith, resolute at heart, and determined in action. Take the knife and go and sit there!’ He gave Ranvir another shove forward.

Ranvir felt the place had suddenly turned sinister. He saw feathers of hens lying scattered all over. Near some rubble rested a slab of stone turned black with blood.

‘Sit down and put one leg of the hen under your right foot.’ Devbrat pressed the hen’s wings and twisted one wing under the other.

The hen cackled furiously. But its wings having been firmly tied together it could only struggle futilely. It did this for a while then lay still.

‘Hold it!’ Master Devbrat sat down by Ranvir’s side. ‘Go ahead. Let the knife do its job!’

Sweat broke out on Ranvir’s forehead and his face turned pale. Master Devbrat knew that the boy was feeling queasy.

‘Ranvir!’ he cried and slapped him hard on his cheek. Ranvir fell down in a heap on the ground. He felt like crying. The Gorkha standing behind him, watched him, a glitter of excitement in his eyes. Ranvir was still feeling unequal to the task but the slap seemed to have driven away his nausea.

‘Get up, Ranvir!’ Master Devbrat cried.

Ranvir slowly rose to his feet and looked at his mentor with heavy, dazed eyes.

‘There’s nothing difficult about it,’ Master Devbrat said. ‘Watch, I’ll show you how.’

He pressed one of the hen’s feet under his boot. The bird’s eyes became glazed and then slowly closed. He held the hen’s neck in his right hand and slit it. Blood spurted from the neck, some drops falling on Devbrat’s hand. But he did not let the hen go even though its head had been cut off. He firmly held the windpipe down till it turned white. The hen’s headless body kept quivering and then became still and its wings drenched with blood became limp. All that Ranvir saw was a handful of white feathers spattered with blood lying before him. Master Devbrat flung the remains of the dead bird to one side and got up.

‘Bring another hen!’ he told the Gorkha.

As he turned towards Ranvir, he saw that he had vomited on the ground and was sitting there, holding his head between his hands, and breathing heavily. Master Devbrat felt like slapping him again but he controlled himself and just stood there watching him in disgust.

‘I’m going to give you one more chance,’ he said at last. ‘A youth who can’t kill a hen – how can one expect him to deal with an enemy?’

Soon Ranvir’s breathing became normal and his stomach, which had knotted gradually, loosened up.

I’ll give you five more minutes,’ Devbrat said. ‘If you fail to kill the hen this time it’s all over with you. No initiation, no nothing.’ He turned on his heel and walked out of the courtyard.

When he returned after five minutes, he saw a hen writhing under the wall, drops of blood flying from it in all directions, Ranvir was sitting by the side of the bird, his right arm held between his knees. Devbrat guessed how things must have gone. While Ranvir was struggling with the hen, it must have pecked at his hand and he had only succeeded in wounding the bird instead of killing it outright.

Writhing in agony the bird kept jumping in the air and falling heavily on the ground, leaving more and more blood stains on the ground. Blood fountained from its neck.

‘Get up, Ranvir!’ Master Devbrat patted him on his back. Ranvir slowly rose to his feet. He had succeeded in the test.

‘Shabash!’ Master Devbrat said. ‘You’ve determination, you have will power. Though your arm still lacks strength, you’ve made the grade and won your reward.’ He bent to the ground and dipping his finger in the blood spattered on the stone slab, made a blood mark on Ranvir’s forehead.

(Extract from Tamas (Darkness) by Bhisham Sahni, translated from the Hindi by Jai Ratan, Penguin Books (India) Limited).

Archived from Communalism Combat, August 2004, Anniversary Issue (11th), Year 11 No.100, Cover Story 14

Talaq Talaq Talaq

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June 30, 2004

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Whichever way you look at it, in simple human terms, rationally, constitutionally or theologically, the dogged refusal of the bulk of the ulema in India and the All India Muslim Personal Law Board (AIMPLB) to call for an end to the Muslim male right to triple talaq (instant divorce) defies comprehension.

In human terms, in terms of any notion of gender justice, the unilateral, arbitrary and whimsical right of a Muslim male to divorce his wife in an instant – a letter, telegram, telephone, telex, fax even an SMS would do – cannot be described as anything but inhuman and anti-women.

In rational terms it defies any definition of justice or equity. Triple talaq cannot but be unconstitutional because it is so blatantly unjust, unfair, arbitrary and discriminatory.

Even theologically, it is difficult to digest the position long held by the ulema and until recently accepted by the courts: "Though bad in theology (haram, sinful), triple talaq is good in law".

What this means in simple terms is that the moment a Muslim male utters talaq, talaq, talaq, his wife becomes unlawful to him, even if he has uttered those words under coercion, in a fit of rage or in a drunken state and regrets his utterance the very next moment. The only way out for the couple to resume their marital relation, the ulema say, is through halala: the woman must marry someone else, consummate the marriage, get the second husband to divorce her and then remarry the first husband.

It is repeatedly claimed, not by Muslims alone but also by many non-Muslim scholars, that justice and equality are the key social message of Islam. How can the practice of triple talaq be squared with any notion of justice or equity? It is not known if the ulema or the AIMPLB have ever asked themselves this question, and, if so, what their answer is.

Accompanying articles in this cover story make clear that not all the ulema and not all members of the Board accept triple talaq as lawful. Besides, the triple talaq practice is today unlawful in an overwhelming majority of Muslim countries, even though Islam is declared to be the State religion.

For the first time since its inception in 1972, the AIMPLB resolved in its meeting of July 4, 2004 to take some concrete, if highly inadequate, steps to give justice to Muslim women. The Board resolved:

(1) To launch a nation-wide campaign to create awareness in the Muslim community that the prevalent practice of triple talaq was wrongful and to educate them on the Islamic way of divorce.
(2) To prepare and popularise a model nikahnama that both husband and wife be asked to sign at the time of marriage, committing themselves to not seeking a divorce except in the correct Islamic way as spelt out in the model nikahnama.
(3) To ensure that Muslim women get a share in agricultural property.
(4) To establish Darul Qaza (Islamic courts) in different parts of the country to settle marital disputes and to strive for constitutional status to these courts (so that its orders become legally enforceable).

The Board has fallen between two stools. These resolutions have left the Muslim fundamentalists aghast at the very thought that the AIMPLB is contemplating the unthinkable: bringing any change in Muslim Personal Law.

On the other hand, the proposed measures have not impressed women’s groups and other secular organisations in the least. And this is so for several reasons.

So long as you keep reiterating the position that triple talaq is good in law but bad in theology, what would be the efficacy of any campaign against it, even assuming (and this is a very big assumption) the Board has the machinery to run a nation-wide campaign and the mechanisms to ensure its success. As for a model nikahnama, the same Board has been sitting on a model nikahnama suggested by some of its own members for ten years. How many more decades before an approved nikahnama goes into mass circulation? How do you create mass opinion in its favour?

There now seems to be a near consensus among the upper echelons of the judiciary that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.

No less objectionable is the fourth resolution, asking for a religious body to be integrated as part of the judicial apparatus in a secular State. How can any secular State grant such legitimacy to any religious organisation? How would anyone react to the demand for a Hindu Dharam Sansad as an integral part of the courts set up in India?

The only saving grace in these four resolutions is the one concerning restoration of Muslim women’s right to agricultural property. It is a welcome development for more than one reason. In demanding fresh legislation to ensure Muslim women’s rights to agricultural property (a right that has been denied to them since 1937 with the connivance of the ulema), the Board will nullify the oft-repeated though baseless claim that any change in Muslim Personal Law is interference in God-given laws.

Even as there is endless debate over whether those concerned with gender justice should engage with or ignore the Board, victims of triple talaq (Muslim women) have kept knocking at the doors of constitutional courts in search of justice. And surprisingly, though neither the media nor the Muslim masses have awakened to its implications, a big, big change is evident here.

It is clear from a spate of judgements by the high courts and even a division bench of the Supreme Court since 1998 that the upper echelon of the judiciary is no longer willing to buy the "bad in theology, good in law" line of the ulema. (The accompanying article by Flavia Agnes refers to several of these judgements). There now seems to be a near consensus among them that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.

What this could mean for a victim of arbitrary talaq is best understood from a brief recount of the September 18, 2002 judgement of a division bench of the Supreme Court comprising Justice RC Lahoti (now Chief Justice of India) and Justice P. Venkatarama Reddi in the case of Shamim Ara v. State of UP and another, (2002) 7 SCC 518.

Shamim Ara from Allahabad got married to Abrar Ahmed in 1968. In 1979, she filed an application before a family court seeking maintenance from her husband under Section 125, CrPC, on the ground that he had deserted her.

In 1990, the husband filed a written statement to claim he had divorced her in 1987 and so she was not entitled to any maintenance. Accepting the husband’s contention that she had already been divorced, the family court, in its judgement in 1993, dismissed the wife’s plea for maintenance.

On her appeal, the high court (Allahabad) held that the communication of talaq stood completed in 1990 with the filing of the written statement by the husband.

But on September 18, 2002, the Supreme Court ruled that "neither the marriage between the parties stands dissolved on December 5, 1990 nor does the liability of the husband to pay maintenance come to an end on that day. The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law."

The judges held that the mere plea of a husband of having divorced his wife sometime in the past was of no use as, "There are no reasons substantiated in justification of talaq and no plea of proof that any effort at reconciliation preceded the talaq".

The courts of secular India are the only hope for the countless victims of triple talaq.

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 1

‘We need to carry the ulema with us’

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June 30, 2004

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Uzma Naheed
Director, Iqra Education Foundation Member, AIMPLB

To begin with, there is complete unanimity among all Muslims that triple talaq is not in accordance with Koranic injunctions or the teachings of the Prophet.

Secondly, forget other schools of Islamic jurisprudence, even among the followers of the Hanafi school, the triple talaq practice is today unlawful in Hanafi predominant countries like Pakistan, Bangladesh, Jordan, Egypt, Syria, Iraq (the Sunni minority in Iraq are followers of the Hanafi school).

India is perhaps the only country in the world today where triple talaq is lawful for Muslims. Can it be anyone’s case that Muslims throughout the world, except Indian Hanafis, are guilty of un-Islamic practice?

When we started talking about the need for an end to the wrongful practice of talaq-e-salasa (triple talaq) about ten years ago, there was little appreciation among the ulema about both the nature and the magnitude of the problem.

I was frequently asked: Is triple talaq the only or even the major problem that Indian Muslims are faced with? Besides, the incidence of triple talaq is negligible in percentage terms. Why, then, was this blown up into such a major issue?

My answer always would be: One, it may not be the only problem, but it certainly is part of the problem the community faces. And I, being a woman, consider the resolution of this problem as part of my priorities. Secondly, even assuming that the triple talaq practice is not so prevalent, what is haram is haram, what is gunaah is gunaah. So how can it be overlooked?

I am happy to see a sea change in the attitude of even the ulema in India today. I would go to the extent of calling it a revolutionary change in attitudes. It is not just that a person like me is invited to address large gatherings of the ulema from different parts of the country where I am given a very patient and sincere hearing. It is what many of the ulema have themselves started saying in public meetings that is more significant.

I am happy to see a sea change in the attitude of even the ulema in India today. I would go to the extent of calling it a revolutionary change in attitudes.

Personally speaking I feel it is very important to take the ulema with us because there is no denying the fact that for most Muslims what an alim or a kazi says matters a great deal. I can best illustrate my point with a real life experience. In Gujarat, Muslim women were being denied their share in the parental property on the pretext that the property was tied up in the form of assets like shops, inventory of goods, etc. Several years ago I was present at a meeting in Ahmedabad where the late Maulana Mujahid-ul-Islam (former president, All India Muslim Personal Law Board) told the gathering of Muslims that this was unacceptable, that the share that was being denied to Muslim women was haram and those responsible for this would be answerable to Allah on the Day of Judgement. This one rebuke from the maulana made a huge impact and families where women were being denied their share have since then started receiving it.

That is why I believe it is so important to interact and engage with the ulema. That is why I have been trying to get the All India Muslim Personal Law Board to, as a body, endorse the model nikahnama we had proposed several years ago. At a recent gathering of prominent ulema from different parts of the country, they asked me to send them the nikahnama we had drafted. They have promised that they will start campaigning for it and push for its implementation in their respective areas without waiting for the Board’s formal endorsement. This, for us, is a big leap forward.

It is not just the question of ending the wrongful practice of triple talaq. There are also issues such as that of mehr, the Muslim woman’s right to divorce under certain circumstances, maintenance, etc., which need to be reviewed in the context of modern day realities. This is the job of the fiqh schools and we need to engage with them too.

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 2

Reform! reform! reform!

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June 30, 2004

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Nazma Bibi, Orissa

Nazma Bibi is a 26-year-old Muslim woman from Bhadrak, Orissa. On July 3, 2003, under the influence of alcohol and as several members of the community looked on, Nazma’s husband, Mohammed Seru beat her and pronounced talaq, talaq, talaq. However, soon after his drunken declaration of triple talaq, Seru repented, and the couple wanted to get together again and re-settle at Nazma’s parents’ home since she is their only daughter.

The couple then approached the maulvi, the religious priest of Dhamra, to get his holy interpretation/judgement on the incident. After hearing both Nazma and her husband’s versions of the case, the maulvi decreed that the talaq was invalid since the husband had uttered the words ‘talaq, talaq, talaq’ in a drunken state.

But the community refused to accept the maulvi’s judgement declaring that the maulvi was ‘not qualified to give such a judgement’. By then the issue had been commandeered by a powerful local leader, Bari, who clearly did not appreciate ‘outside’ (i.e. the court or women’s organisations) interference. Bari claimed that his ‘NGO’ had settled 100 cases (all of which went against the women).

Mohammed Seru’s family then approached another maulvi, of Bhadrak, for further consultation and advice. He said that the talaq was valid and if at all Nazma wanted to stay with Seru, she had to first go through halala (i.e. marry another man, consummate that marriage and then go through a divorce) before returning to her first husband.

However, Nazma rejected the idea of halala and was forced to abandon her home, taking shelter at a short stay home, Ashiyana, in the town itself. Nazma’s husband then proceeded to a family court at Cuttack where he prayed for restoration of his conjugal rights. In a verdict given on December 13, 2003, the family court dismissed the talaq as illegal and ordered for restoration of the marriage as well as Nazma and Seru’s conjugal life as a couple.

But the local Muslim community to which Nazma belonged refused to accept the court order and was adamant in their opposition. The couple then cut all ties with immediate relatives and found a place outside the community where they stayed together for three months. Three months later, when the couple visited Nazma’s mother at Kantabania, a village some miles away from Bhadrak, some persons from the Muslim community physically assaulted and manhandled Seru.

In their continuing quest for justice, the couple ultimately approached the National Commission for Women (NCW). Two members of the NCW went to Bhadrak on May 21, 2004, and instructed both the collector and SP of Bhadrak to ensure that the victim couple could live together. Nafisa Hassan, a minority member of the commission, declared that since what the couple had undergone was not talaq, they should be allowed to stay in the woman’s parental house and police protection be provided to them. But after this measure of relief had been provided to the couple, an altercation between members of the NCW and local leader, Bari, further aggravated the situation. Members of the NCW stated that it was the people’s fundamental right to live wherever they wanted; the police could get an outside mufti to decide the case if necessary. Bari threatened the NCW, saying that they had no right to interfere in matters of the community whose members would conduct themselves as they saw fit. Bari stipulated that the couple could not continue to stay in Nazma’s parental home. As a result, community members adopted a more rigid stance and in spite of a few sincere efforts by the police and local administration the couple could not stay together for a while.

The community blatantly used compulsion and force to separate the couple. Nazma then had to face social boycott by being denied water and fire for everyday use. Water connections were cut off, her child was not allowed to go to school, and her father was prevented from earning his livelihood – he was a rickshaw-puller in Bhadrak.

It was at this stage that persons from the Centre for Women’s Studies of Utkal University as well as the All India Democratic Women’s Association (AIDWA) intervened. It was their members, Muslim and other women who offered solidarity to Nazma and her family, who carried out negotiations locally. This solidarity at the grassroots compelled the local administration to provide Nazma with water and ensure that her child was no longer prevented from attending school.

On July 25, 2004, AIDWA and Centre for Women’s Studies took the issue further by organising a widely attended seminar on ‘Dialogue on Talaq’ at the Utkal University campus. The seminar passed a unanimous resolution to a) receive a delegation of prominent (and locally chosen) dignitaries to visit Bhadrak and dialogue with the local community by August 3, 2004; b) demand that the state government provide Nazma with financial support. In response to the second demand, Rs. 20,000 has already been released for Nazma’s use.

(Report from AIDWA, an all India women’s organisation).

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 3

‘No faith in the Muslim Personal Law Board’

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June 30, 2004

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Haseena Khan
Co-ordinator, Awaaz-e-Niswan

The All India Muslim Personal Law Board is a government appointed body formed in 1972 that functions more or less like an NGO. It is now trying very hard to become a statutory body. We are strongly opposed to this move; we are opposed to anyone who in any way supports this move by the AIMPLB.

The name of the organisation suggests that it is a body that looks into issues concerning personal law or family laws. However, their record shows that since inception there is not a single thing they have done to better the situation of Muslim women. That is why we have no faith in this organisation; we are highly suspicious of this body.

The AIMPLB is now talking of setting up Darul Qaza, Shari’ah courts. If this were to be recognised by the government as they are demanding, it will be a big leap backward. They who only talk of women’s duties, never women’s rights, what can one expect of them?

On the Babri Masjid dispute, the AIMPLB says it will only abide by the decision of the courts, but in matters of personal law they want "no interference" from the courts.

Awaaz-e-Niswan believes that hope for Muslim women lies only through progressive, secular, democratic forces and that is the direction we are looking at. We are engaged in serious discussions with other women’s organisations and jointly exploring the best course of action to be taken for bringing justice to Muslim women.

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 4

‘Triple talaq has no place in the Koran’

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June 30, 2004

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Nilofer S. Akhtar
Advocate, Mumbai high court, specialising in family laws

Triple talaq is an absolutely sinful act that has no place in Islam. And we have now reached a situation in India where the courts are no longer willing to accept this practice as lawful.

In the past two years I have personally handled about a dozen cases and succeeded in getting rulings, where the court refused to accept the husband’s claim of having divorced his wife and ordered that the husbands concerned pay for the maintenance of the wife and children.

Unfortunately, the media, as also the ordinary Muslim, man and woman, are still largely ignorant of this changed reality. Giving wide publicity to these judgements could go a long way in putting a check on the practice of instant divorce.

Conflicts within marriage in Muslim homes are arising today due to changed social circumstances: in lower middle class homes it is the demand for dowry which is totally un-Islamic; in middle class homes it is interference from the husband’s family; in upper class families, where more and more women are getting into professional careers, it is the wife’s pressure to break out of the joint family mould.

Another highly disturbing trend is that of the Muslim male who goes abroad for work. Often the wife’s family members are coaxed, cajoled or coerced into contributing towards large payments to the recruiting agents. The husband goes abroad promising to send a visa for his wife soon. But in very many cases what she receives after anxious waiting is not the visa but a talaqnama. Often, all that the wife knows is the post box address of the husband’s workplace, so it is very difficult serving sermons on the man.

These are all real life situations that cannot be wished away and have to be addressed. In this context, the nikahnama, a document that clearly spells out the terms of the marital contract, becomes very important.

It is commonly thought that in Islam only the husband has a right to talaq, while the wife can at best ask for khula but on condition that she foregoes all her property-related rights. But this is not true.

For example, divorce by mutual consent is fully acceptable in Islam. Then there is the provision of talaq-e-tafweez, whereby, through an agreement between the husband and the wife either at the time of marriage or any time thereafter, the husband delegates his right to ask for divorce also to the wife.

Until the ’40s it was a widely prevalent practice among the upper class Muslim families in UP, where to safeguard their daughter’s interests, they would incorporate the talaq-e-tafweez provision in the nikahnama. This is an over 100-year-old practice, well-recognised by the courts, but about which there is near total ignorance among Muslims today.

It is perfectly acceptable in Islam (Surah 33, ayat 28 of the Koran) that at the time of marriage, a bride can stipulate conditions for the marriage that are lawful and in accordance with public morality. This could include, for example, clauses concerning a husband’s second marriage, maintenance, custody of children, share in matrimonial property, etc.

Incidentally, a nikahnama is a very private document that does not necessarily need the approval or endorsement of the Muslim Personal Law Board or any other authority.

We have drawn up a nikahnama in 2001 and I know of 12-13 couples who have entered into marriage according to its stipulations. For my own daughter, I will draft my own nikahnama when it comes to her marriage.

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 5

Reform! reform! reform!

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June 30, 2004

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Rahmathnisha, Sivagangai

Rahmathnisha, a resident of Thirupattur in Sivagangai district, Tamil Nadu, was married to Varusai Mohamed from Karaikudi in the same district in 1989. Her husband works as an assistant engineer in Tamil Nadu State Transport Corporation at Karaikudi. She has a son, Syed Anwar Ali, who is now 14. Rahmathnisha lived with her husband for ten years. During her life with her husband she suffered great torture at the hands of her husband and his family. Her husband had affairs with two other women while he was married to Rahmathnisha. Rahmathnisha could not tolerate his infidelity and complained to her mother-in-law but her in-laws did not see anything wrong with their son’s behaviour, excusing his conduct as common amongst men who worked in government departments. Rahmathnisha was not allowed to leave the house or interact with neighbours and relatives. She was practically under house arrest and made to live the life of a slave.

One day she happened to see her husband having sexual intercourse with another woman. She was extremely upset and lost her temper with her in-laws. Her in-laws’ response was menacing. They started mixing slow poison into the food meant for Rahmathnisha and her son; both of them had severe stomach cramps and were very ill. As the harassment continued and both her life and that of her son’s was at risk, Rahmathnisha left her in-laws’ house secretly and returned to her parents’ home. This was in the year 2000. After Rahmathnisha left, her husband made a complaint to the Kattuthalai Jamaat stating that she had put sleeping pills into their food and stolen jewels from their house. Discussions were then held with the Thirupattur and Kattuthalai Jamaats to determine the facts. In 2001, while Rahmathnisha was living with her parents, her husband sent a talaq letter to both the Thirupattur Jamaat and his wife. Since Rahmathnisha had her suspicions about what the letter contained, she refused to accept it and it was returned unopened. Again, lobbying between both Jamaats took place. During these discussions Rahmathnisha expressed her wish to live with her husband and requested the Jamaat to advise her husband to avoid relationships with other women. But that did not happen. Rahmathnisha wanted to live with her husband and had believed that her husband would come back to her. Discussions took place between the two Jamaats about the talaq letter and in July 2003, a settlement was arrived at. Varusai Mohamed promised to pay Rahmathnisha Rs. 42,000 but wanted her to sign a document stating that she would not claim anything for her son as heir to Varusai Mohamed’s property in the future. Rahmathnisha’s family could not accept this meagre amount and did not sign the documents or accept the money. In turn, they sent a request through the Thirupattur Jamaat claiming Rs. 1,00,000 as compensation. But Rahmathnisha was still very keen to live with her husband if he promised to change.

Meanwhile, Varusai Mohamed had already handed over Rs. 42,000 along with all the vessels and household things that Rahmathnisha had used to the Kattuthalai Jamaat and decided that he had fulfilled his commitments to his wife. Even before the two families had arrived at a final settlement, Varusai Mohamed had married another woman, also from Sivagangai, in May 2004. Rahmathnisha then lodged a protest with the Kattuthalai Jamaat, which had given Varusai Mohamed a no objection certificate for his second marriage. To that the Jamaat responded by telling Rahmathnisha that undergoing talaq was small change, an everyday matter worth one-and-a-half paise, and asked her why she was raising such a hue and cry about it. Since she did not receive a responsible answer from the Jamaat concerned, Rahmathnisha approached STEPS in July 2004 so as to punish her husband for entering into a second marriage and for doing so even before their divorce was final.

STEPS wrote to the Kattuthalai Jamaat asking them for an explanation for the NOC issued to Varusai Mohamed, and another letter to his employer. The Kattuthalai Jamaat sent STEPS a threatening reply, indicating that merely sending a letter could convey talaq, irrespective of Rahmathnisha’s opinion. So Rahmathnisha filed a case against her husband at Karaikudi women’s police station. But after consulting a lawyer, the inspector concerned said that since a second marriage was permissible in Islam, the criminal law did not apply to Muslim men in this regard. The police suggested a compromise instead. Ultimately, Varusai Mohamed was willing to pay Rahmathnisha Rs. 85,001 and asked her to sign an agreement declaring all settlements between them as having concluded. Rahmathnisha was still keen that her husband be punished for his actions and wanted to file an FIR against him. But the male members of her family did not want this, the long wait if the case went on for years in the future. They forced her to agree to the compromise and accept the amount that her husband was offering her today.

(Report from STEPS, an organisation of Muslim women with a presence in several districts of Tamil Nadu).

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 6

‘All unjust personal laws must go, be they Hindu, Muslim or Christian’

By

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June 30, 2004

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Indira Jaising
Senior lawyer, Supreme Court of India, and women’s rights activist

Triple talaq is a system of di-vorce that exists in Muslim Per-sonal Law that allows the husband to divorce his wife by uttering the word ‘talaq’ thrice. This right does not exist for the woman. A Muslim woman has no right to divorce her husband through a system similar to the triple talaq. She would need to go to a Darul Qaza and prove the atrocities committed by her husband in order to get a divorce.

I have dealt with several cases where Muslim women have been driven to the divorce court in prolonged proceedings when their husbands have opposed a divorce. She can, however, get an extra-judicial divorce on the condition that she forgoes her mehr. The situation is patently discriminatory against women. It is primarily an issue of justice – can a marriage contract entered into by the free consent of two parties be broken by the unilateral will of one party? No other contract, including commercial contracts, can be broken in this manner. The breaking of a marriage contract has emotional and financial concerns that go beyond any other contractual concerns. Often it is not only the interests of women that are at stake but those of children as well.

The Bombay high court observed many years ago that the practice of triple talaq may be ‘good in law’ but is ‘bad in theology’. This is a strange role reversal. I believe the truth lies the other way around – ‘may or may not be good in theology’, but ‘bad in law.’

Supreme Court on Triple Talaq:

In Ahmedabad Women’s Action Group (AWAG) and others v. Union of India, (1997) 3 SCC 573, a writ petition was filed to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution.

However, the Court refused to entertain the writ petition because the issue involved State policies. The Court was of the opinion that the remedy could not be provided by the judicial process and instead must be sought elsewhere.

At the same time, the Court has tried to introduce some safeguards into the talaq process. The Court has stated that talaq, in order to be effective, has to be pronounced. In Shamim Ara v. State of UP and another, (2002) 7 SCC 518, a mere plea taken in a written statement of a divorce having been pronounced sometime in the past was held to not be treated as effectuating a talaq. Instead, a talaq had to be ‘pronounced’, that is, it had to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

I totally disagree with this approach of the court in the AWAG case. Under our scheme of laws, the courts are bound to give their opinion of the constitutional validity of any personal law, be it Hindu, Muslim, Sikh or Parsi. I recognise the problem that arose in the Shah Bano case. Yet I think that the problem there was the fact that the Court, instead of confining itself to the constitutional and legal validity of the grant of maintenance to Muslim women under Section 125, CrPC, took it upon itself to interpret the Koran.

It is no part of the court’s role to interpret the Koran and spell out the entitlements of women from the Koran. Our constitutional entitlements as spelt out by the courts must come from the Constitution, not the Koran or the Manusmriti. It is in no part the business of the courts to interpret religious texts, that is the job of theologians, not the constitutional court. When judges begin to interpret the Koran, or give us a definition of ‘Sati’ as being a Sita from Ramayana and Anasuya, or interpret the content of ‘Hindutva’ as in Manohar Joshi’s case, they destroy one of the core commitments of the Constitution, namely, secularism. No secular judiciary has the right to interpret what is the core content of any religion, Hindu, Muslim or Christian. The storm over Shah Bano was over the authority of the Court to interpret the Koran. It has nothing to do with gender justice.

While the Personal Law Board may or may not recognise a triple talaq, a constitutional court certainly should not, on the ground that it is unjust, unfair, arbitrary and discriminatory.

We are passing through difficult times, when right wing forces have polarised society and unleashed an assault against the minorities. At such times it is even more necessary that the courts take a "hands off" position on religion.

This, however, does not mean that they take a ‘hands off’ position on law. Any rule, regulation, custom or law that binds citizens is capable of being challenged on the grounds that it violates the fundamental rights of citizens. Triple talaq must be declared unconstitutional, not because it is un-Islamic, but because it is unconstitutional.

More than 54 years after independence, it is time we recognise that our constitutional values are as much a part of our cultural inheritance as any other. Courts have been put in place to enforce constitutional values. That is their job. Their refusal to do so is an abdication of function. It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India, (2001) 7 SCC 740. In interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and maintenance. The Court fought shy of declaring the Act unconstitutional, but at least they did not base their interpretation of the Act on theology, but on the Constitution.

It is not as if courts have taken a hands off approach to Muslim law alone, they have done the same with Hindu Personal Law. No provisions of Hindu Personal Law have been declared unconstitutional, though repeatedly challenged. This deference to religion, be it Hindu or Muslim, is unhealthy and has subverted a debate on gender justice.

All unjust personal laws must go, be they Hindu, Muslim or Christian. The issue is not uniformity but gender justice – all unjust laws must be declared unconstitutional. It is up to women of all persuasions to challenge all unconstitutional personal laws. While the Personal Law Board may or may not recognise a triple talaq, a constitutional court certainly should not, on the ground that it is unjust, unfair, arbitrary and discriminatory.

At a recent meeting of the All India Muslim Personal Law Board, the Board refused to discuss the issue of triple talaq and the need to reform the practice into more equitable and gender sensitive practices. The meeting ended with the promise that the Board would spread awareness among the Muslim community about practices of ‘triple talaq in one sitting’.

These may be laudable efforts by the Board. The body however has no authority to lay down the law of the land and interpret the Constitution. Its legitimate role would be advocacy for the acceptance of an altered and equitable constitutional regime.

Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 7

Blood for blood: An extract from Tamas

Talaq Talaq Talaq

‘We need to carry the ulema with us’

Reform! reform! reform!

‘No faith in the Muslim Personal Law Board’

‘Triple talaq has no place in the Koran’

Reform! reform! reform!

‘All unjust personal laws must go, be they Hindu, Muslim or Christian’

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