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.
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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.
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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).
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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.
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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.
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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.
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.
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).
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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.
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Senior advocate, Mumbai high court, and women’s rights activist
The Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA) are two major instances where the Muslim leadership recommended to the government that certain portions of Islamic jurisprudence should be legislated. The Dissolution of Muslim Marriages Act, 1939 was passed to give Muslim women the right to approach the courts for a divorce, two decades before their Hindu counterparts received a similar right. Two renowned Islamic jurists, Asif Ali Fyzee and Maulana Ashraf Ali Thanavi had spearheaded this campaign to obtain for Muslim women governed by Hanafi law, the right bestowed upon women by the Maliki law, through a state enactment.
The adverse publicity around the Shah Bano controversy and the subsequent enactment created an impression that since 1986 the Muslim woman’s right to maintenance has been restricted to three months. This is because the media has not highlighted the series of positive judgements by various high courts since 1988, which held that the Muslim woman has a right to ‘fair and reasonable settlement’ for life. The right is for a lump sum settlement upon divorce. In the landmark judgement in Danial Latifi v. Union of India, a full bench of five judges of the Supreme Court confirmed the constitutional validity of the MWA as well as the Muslim woman’s right to fair and reasonable settlement for life. This right is far superior to the Hindu woman’s right to recurring maintenance every month, which is subject to the rider of sexual purity.
When a Muslim woman files an application for maintenance, the usual ploy adopted by the husband is to plead that he has divorced the wife. A series of judgements have held that mere declaration in the written statement is not sufficient to prove divorce and that the husband has to satisfy the court that there has been arbitration prior to the pronouncement of divorce.
1998: Saleem Basha v. Mumtaz Begum – Among Muslims, divorce must be preceded by attempts at reconciliation between husband and wife in the presence of two mediators, one chosen by the wife and the other chosen by the husband. A Muslim husband cannot divorce his wife at his whims and caprice. Divorce must be for a reasonable cause, preceded by pre-divorce conference, to arrive at a settlement.
2002 (Bombay HC Full Bench) Dagdu Pathan v. Rahimbi – All the stages of conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings by arbitrators and failure of such proceedings are required to be proved when the wife disputes the factum of talaq before a court of law. Mere statements made in writing or oral dispositions before the court regarding talaq are not sufficient.
Other important judgements on this issue are Mohd. Yunus v. Smt Shabiran (1998), Mangtu v. Noorjahan (1998), Abdul Rehman v. Nurjahan (2000) Zulekha Begum v. Abdul Rehman (2000). The Supreme Court in 2002 in Shamim Ara v. State of UP has confirmed this position.
A Muslim marriage is a contract. Only under Muslim law can conditions be stipulated at the time of marriage. This is a Koranic right bestowed upon women. No other law permits such contract. During the British period, courts upheld various conditions stipulated in the nikahnama. Some illustrations – restraint on polygamy, right to matrimonial home/residence, right to prompt mehr, fixed quantum of maintenance, acceptance of children of wife’s former marriage, right to visit parents, delegated right of divorce, etc. The stamp of approval by the AIMPLB will only serve to popularise such nikahnamas but not bestow any new rights upon the Muslim woman that she does not already have.
Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 8
General secretary, All India Democratic Women’s Association
There are two or three key issues that need to be kept in mind when intervening in the controversy over triple talaq. Generally speaking, if one looks at the position of all women, that is women belonging to all communities, their position in all aspects of life is worsening. Whether it is the issue of domestic violence or inequalities across the board, there is a marked increase in the violence against women that we are seeing through our work all over the country.
We run 125 area-based cells for women across the country. If in a certain locality a particular community is predominant, many more women of that caste or community come to our cells there. Therefore, in certain areas we have a predominance of Dalit or Muslim women approaching us for assistance. We have found through this experience that if there is anything truly ‘secular’ in India it is the violence against women.
A very basic and important aspect of our approach is the framework through which we approach the issue and on the basis of which we arrive at our understanding and perspective of the issue. Therefore, for us to see the triple talaq issue as a religion-based issue alone is not right.
It is true that dowry related violence and killing predominantly affects one community just as triple talaq affects only Muslim women. But what people fail to see is that the status of women across the board is under assault and being undermined.
Taking a second wife is very common, across the board, in all communities, whether the personal law allows it or not. Violence against women – severe beating, slapping around, being thrown out of the matrimonial home, is also common to all communities, whether society at large, the community, political parties, etc. acknowledge it or not. Likewise, among Muslim women, triple talaq is certainly a matter of great concern.
Now, what do we as an organisation do when faced with this form of unfair and brutal treatment? The most important thing to remember is that as an organisation we believe in a multi-dimensional approach. We believe that a woman has different choices. She can go to court, negotiate a settlement with a local maulvi, or seek the support of a local women’s organisation. The important thing for us is that it is the Muslim woman down there who is facing the situation. She is the protagonist who is fighting for herself and her children. She is fighting the family, her community and the State. It would be well for campaigners to remember whom they are fighting for.
Hence, for us as an organisation, given the aggressively polarised situation in India where the woman is a prime target of communal violence, there is a broad preference to resolve the issue of triple talaq within the framework of religion itself. So, while we know that the stance of the Muslim Personal Law Board has been indecisive, etc., given the ground-level situation, we believe that we need to engage with them even as we, as an organisation, also support women who have gone to court on the issue of triple talaq.
While there may be some who are of the view that we should not engage with the AIMPLB because they are non-secular, we feel that they are part of the different choices a Muslim woman in India has. She can go to court, she can go to the local maulvi, she can go to a women’s organisation. If she feels that she needs to demand a greater share from the AIMPLB or Wakf Board, say, to ask the latter why they are not spending wakf money for women’s shelters, she should have the right to make that demand and it is for us to support it.
When protest against anything, even a practice like triple talaq, becomes polemical and part of the political agenda of groups who do not necessarily have any concern for the plight of women in general, or Muslim women in particular, it becomes problematic.
In the context of the recent incident in Orissa (see box), we are in the process of launching a mass protest and campaign against the practice through a leaflet where we will solicit men and women of all communities – not just Muslims – to say that such a practice is wrong. Then, at a general level, this specific issue must fit into a wider campaign about the Indian Constitution, women’s rights and gender. At an individual level, the intervention must have an appreciation of the position of that individual Muslim woman, the protagonist.
This is an approach that we like to follow in all our campaigns and protests because we believe, fundamentally, that when any issue is looked at or approached from a religious point of view it gets polluted and vitiated. The issue must remain gender-based.
With religious fundamentalism on the rise and identity-based groupings on the upswing, with aggressive community-driven violence and its retrograde rhetoric vitiating the political atmosphere, we believe that it is unethical for a political campaign to victimise the victim, that is, the Muslim woman, further. We believe that it is ridiculous to expect reform in one area when all around – politically and socially – we are regressing as a polity. The shoulders of a Muslim woman have always been bent with the plight of her existence. Now, with aggressive Hindu communalism, they have been further bent in humiliation by brutal sexual violence. At a time like this we believe a humane, multi-dimensional approach that not only recognises her plight through practices like triple talaq, but also strengthens her capacity to fight them, is the right ethical and realistic approach.
Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 9
The recent meeting of the All India Muslim Personal Law Board (AIMPLB) at Kanpur had raised considerable expectations that the ulema associated with it, who exercise a powerful influence on Muslim opinion, would finally declare the obnoxious practice of triple talaq in one sitting to be null and void and therefore illegal. This, however, was not to be. In fact, it so transpires that the question of banning the practice of triple talaq was not even on the agenda of the ulema gathered at Kanpur. Leading Deobandi and Barelvi scholars, whose schools represent the majority among the Indian ulema, see the practice as Islamically valid and as an integral part of the Shari’ah. Hence, they insist, the practice cannot be scrapped, as that would allegedly be tantamount to interfering with divinely revealed laws. This opinion appears to be widely shared among the ulema associated with the AIMPLB, which explains the refusal of the Board to ban the practice despite considerable public pressure to do so.
The argument that the practice of triple talaq in one sitting is an integral part of the Shari’ah is hotly contested by a minority among the ulema, such as those belonging to the Ahl–i–Hadith, among the Sunnis, as well as by the Shi’as. This clearly points to the diversity of understandings of what precisely constitutes the Shari’ah, and to elements of human effort in the construction of notions of the Shari’ah itself, a fact that the conservative ulema themselves are reluctant to acknowledge. The refusal of the AIMPLB to ban the practice of triple talaq clearly suggests that one can hardly expect the ulema associated with the Board to take any bold steps in the future that might threaten to undermine the patriarchy that is sought to be provided with a suitable ‘Islamic’ gloss. The Deobandi ulema who dominate the Board are carefully groomed in a tradition of extreme patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars. Hope for reform, therefore, lies in the writings and arguments of Islamic scholars from other schools of Islamic thought and jurisprudence.
One such school is the Ahl–i–Hadith, representing a small minority among Indian Muslims. In contrast to the Deobandis and the Barelvis, the Ahl–i–Hadith insist that Muslims need not be bound by the jurisprudential precedent of the early ulema, but, instead, should rely solely on the Koran and the genuine (sahih) prophetic traditions. They are rigid scripturalists and extreme literalists, sharing much in common with the Wahhabis of Saudi Arabia. Although their position on a range of issues is thoroughly reactionary and obscurantist (leading Ahl–i–Hadith scholars are on record as hailing the Wahhabi rulers of Saudi Arabia as representing the only ‘true’ Islamic regime in the world), on the question of triple talaq they adopt a somewhat progressive stance, declaring the practice as unequivocally illegal.
The Mumbai–based Maulana Mukhtar Ahmad Nadvi is a leading Indian Ahl–i–Hadith scholar. In his recently published Urdu book titled Talaq: Kitab-o Sunnat Ki Roshni Mein Tafsili Jai’za (‘Divorce: A Detailed Study in the Light of the Koran and the Prophetic Practice’), he writes that the practice of triple talaq was sternly condemned by the Prophet himself. The Prophet, he says, declared divorce to be the ‘most hateful’ of things allowed by God. He argues that Islam lays great stress on harmonious conjugal relations, and quotes a Hadith, or saying of the Prophet, in which Muhammad is said to have told his followers that the best among them was he who was best for, or towards, his wife.
He then goes on to describe the method of divorce laid down in the Koran and enforced by the Prophet. In case a dispute arises between husband and wife, Nadvi writes, they should first try to solve it through dialogue. If this does not work, the Koran instructs them to appoint one arbiter each from the family of the husband and the wife, who can try and resolve their differences. Only when this fails should they take the drastic measure of divorce.
In the Prophet’s time, Nadvi explains, divorce took the form of the husband uttering the word talaq three times, spaced over three consecutive menstrual cycles of the wife. During this period, the husband was to abstain from sexual intercourse with his wife, but was to keep her in the house and provide for her. In this way, the husband was given adequate time to seriously reconsider his decision to divorce. The first two talaqs could be revoked by the husband, but if the third talaq was pronounced during or at the end of the third menstrual cycle, the divorce was considered final and irrevocable. If the husband had sexual intercourse with his wife before uttering the third talaq in the third menstrual cycle, the previous talaqs were nullified.
Likewise, if he uttered the talaq at a time when his wife was menstruating, it would not be considered valid. In this regard, Nadvi relates that on one occasion a companion of the Prophet gave talaq to his wife while she was in menstruation. On learning of this, the Prophet ordered the man to take back his wife, and did not recognise the talaq. Nadvi also writes that at the time of the Prophet if a man uttered the word talaq more than once in one sitting, it was considered as just a single talaq.
This being the method of divorce at the time of the Prophet, it is considered to be in accordance with his sunnat, or practice, and hence is called talaq–i–sunnat. Since Muslims consider the prophetic practice a normative model for them to follow, Nadvi says, this is the method of divorce that they should adopt. No other method of divorce, he writes, can be considered binding, as that would be a violation of the sunnat. Nadvi devotes considerable attention to the practice of triple talaq in one sitting, arguing that it has no sanction in the Koran and in the traditions of the Prophet. Being, in Islamic legal parlance, a bida’at, or wrongful innovation, it is not part of the Prophet’s sunnat and hence cannot be considered as sanctioned in accordance with the Shari’ah.
In this regard, Nadvi refers to a saying of the prophet in which he strongly condemned all forms of bida’at, suggesting that those who created innovations in the faith were accursed by God. Since the practice of triple talaq in one sitting is a bida’at, he argues that those who practise or sanction it actually do so in violation of God’s will and hence are condemnable in God’s eyes. In fact, he stresses, the Prophet explicitly condemned the practice of triple talaq. He writes that once, when the Prophet heard that one of his companions, or sahaba, had sought to divorce his wife in this way, he was enraged and sternly admonished him, saying, "What, shall God’s book be played around with and I am present among you?"
Since the practice of triple talaq in one sitting is a bida'at, or wrongful innovation, Nadvi argues that those who practise or sanction it actually do so in violation of God's will and hence are condemnable in God's eyes. In fact, he stresses, the Prophet explicitly condemned the practice of triple talaq.
Nadvi refers to another Hadith, according to which Rukana, a companion of the Prophet, once pronounced three talaqs in one sitting but later repented. He approached the Prophet for help and the Prophet told him that the three talaqs he had given amounted to only a single talaq and therefore he could go back to his wife if he wanted to. To bolster his argument about the illegality of three talaqs in one sitting, Nadvi further adds that not a single instance is reported of such a form of talaq being accepted by the Prophet as constituting a final, irrevocable divorce.
The talaq–i–sunnat method, Nadvi writes, was followed in the Prophet’s time, and this was continued under his successor and the first Caliph of the Sunnis, Abu Bakr. The second Sunni Caliph, ‘Umar, too, followed this rule, but in the third year of his reign he is said to have modified it and to have made three talaqs in one sitting as legally binding and as constituting an irrevocable divorce. If the couple divorced in this fashion wanted to reunite they could only do so by resorting to what is called halala: the woman would have to marry another man, this marriage would have to be consummated, the woman would have to take a divorce from her second husband and only then could she remarry her first husband. The ulema who continue to insist on the legality of this method of talaq, and who also sanction the practice of halala, rely essentially on this decision of ‘Umar.
As a Sunni, Nadvi does not challenge ‘Umar’s decision directly, but in order to argue that this method of divorce has no sanction in Islam he insists that this innovation was simply ‘Umar’s own personal opinion, or ijtihad, which cannot be held to supersede or overrule the explicit commandments of the Koran and the Prophet on divorce. He argues that ‘Umar intended this modification to be only a temporary measure, and simply as a means to address a novel situation that had arisen in his time when men were misusing their prerogative to divorce their wives.
It was, he writes, in order to stop men from abusing their right to talaq that ‘Umar decided to make three talaqs in one sitting a final, irrevocable divorce. By doing so, he intended to warn men of the grave consequences of the break-up of their families if they misused their right to divorce. ‘Umar’s ruling was thus intended to protect women rather than harass them although today this ruling is being used precisely to serve the latter purpose. Nadvi insists that this constitutes a flagrant violation of Islam and here quotes the Prophet as imploring for God’s wrath on those men who misuse their right to divorce.
Nadvi opposes the view of many traditionalist scholars who claim that ‘Umar’s decision was unanimously agreed upon by all the sahaba, or companions, of the Prophet present. He insists that ‘Umar’s decision does not constitute an ‘ijma, or collective consensus, of the sahaba, which is evoked as a principal source of law by the ulema. He cites the instances of several leading sahaba who dissented from ‘Umar’s decision in this regard, including, and most importantly, ‘Ali, the fourth Caliph of the Sunnis and the first Shi’a Imam, ‘Abdullah ibn Abbas, Zubair ibn Awam and ‘Abd ur–Rahman ibn Awf. Following them, several of their followers, too, differed with ‘Umar on this issue. In fact, Nadvi writes, there has never been any ‘ijma on three talaqs in one sitting as constituting a final, irrevocable divorce.
Numerous ulema down the ages to the present day have opposed this position, strongly criticising those ulema who hold the contrary opinion for upholding what they consider as a bida’at. Nadvi writes that among those who dissented from ‘Umar’s decision of considering three talaqs in one sitting as constituting a final divorce were such leading Islamic jurisprudents as Imam Ahmad ibn Hanbal, founder of the Hanbali school of Sunni jurisprudence, several followers of Imam Malik and Imam Abu Hanifa, founders of the Maliki and Hanafi schools of jurisprudence respectively, the influential scripturalist reformist Ibn Taimiyah and his disciple Imam Ibn Qayyim al–Jawziya.
Having thus proved the absence of any ‘ijma on ‘Umar’s decision, Nadvi writes that Muslims must accept the sunnat of the Prophet and the practice of Abu Bakr rather than ‘Umar’s opinion on the matter of talaq. The Prophet’s sunnat, and not that of his Caliphs, has normative authority for Muslims, and if any of the Caliphs departed from the Prophet’s tradition, Muslims must follow the Prophet and not the Caliphs in this regard. Furthermore, as the first Caliph of the Sunnis, Abu Bakr had more authority than ‘Umar, and so his practice in the matter of talaq, which was identical to that of the Prophet, must be followed, instead of ‘Umar’s opinion.
The conservative ulema, Nadvi observes, depart from the sunnat (practice) of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that impinge on the rights of Muslim women.
Umar’s ijtihad cannot be considered, Nadvi stresses, as constituting a permanent modification of the Shari’ah, which cannot be changed. The only unchangeable sources of law, he says, are the Koran and the genuine Hadith, and both these set out the sunnat method of talaq, which, therefore, must be strictly adhered to. Since ‘Umar’s opinion on talaq departs from the Koran and the genuine Hadith, it cannot be accepted as a legally binding decision. Furthermore, Nadvi writes that since it is argued by those who defend ‘Umar’s rule that it was intended as a punishment (ta’zir) for erring husbands, one must raise the question as to whether this decision has proved to be adequate or suitable for the purpose. Since it is today being used largely to harass hapless wives instead of punishing oppressive husbands, it does not serve its original purpose at all and hence must be banned, Nadvi insists.
The conservative ulema, Nadvi observes, depart from the sunnat of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that impinge on the rights of Muslim women. Thus, he notes, many ulema (and these include most Barelvis and Deobandis) insist that talaq uttered by the husband while drunk or while asleep, in a fit of anger or while under coercion, is binding. This, Nadvi insists, is completely at odds with the teachings of the Prophet. He writes that talaq given under coercion has no recognition or validity, for the Koran explicitly lays down that there can be ‘no coercion in religion’. Just as if a person is forced to utter ‘words of infidelity’ (kalimat-i kufr) he is not considered to have become a disbeliever, or if a non-Muslim is forced to utter the Islamic creed of confession he is not considered a Muslim, so, too, if a man is coerced into pronouncing talaq, it has no validity in law.
Similarly, Nadvi writes, if a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses. To back his argument, he refers to a Koranic verse which warns people not to pray while drunk, and to worship only when they know what they are saying. This implies, he says, that God does not regard a drunken man’s utterances of any value. Similarly, using the same logic, Nadvi opposes the argument of those ulema who claim that talaq uttered in a fit of anger, when the man does not know the consequences of what he is saying, is binding.
On the question of halala, too, Nadvi stiffly opposes the Deobandi and the Barelvi ulema. He writes that the practice is abominable, and goes so far as to equate it with adultery (zina). He says that it has no sanction whatsoever in Islam, quoting the Prophet as having invoked God’s anger on those who engaged in the practice. He adds that there is an urgent need to promote popular awareness about halala and its seriously deleterious consequences, especially for hapless women who are sometimes subjected to this practice.
The practice of talaq–i–bida’at and the associated practice of halala, Nadvi writes, are sought to be legitimised by influential sections of the ulema by evoking the notion of jurisprudential precedent. They claim that since the founders of the schools of Sunni jurisprudence and several of their followers upheld these practices, they cannot be rescinded. This, indeed, is the position taken by most Deobandi and Barelvi ulema in India today. Nadvi stiffly opposes this argument, arguing that the founding Imams of the four schools never claimed infallibility for themselves. Indeed, he adds, they went so far as to insist that if any of their opinions violated the Koran and the genuine Hadith, they were to be rejected, and the latter were to be followed in their place.
Since the practice of accepting triple talaq in one sitting as constituting a final divorce and the associated practice of halala violate the Koran and the genuine Hadith, Nadvi says, those who claim to be faithful adherents of the established schools of jurisprudence, and this includes the Deobandis and the Barelvis, must follow the position of the Koran and the genuine Hadith in this regard if they are to be considered true followers of their Imams. To refuse to do so, Nadvi asserts, is absolutely forbidden (haram). Those who continue to uphold the practice of triple talaq in one sitting and justify halala are thus, he says, ‘grave sinners’ (sakht gunehgar) in God’s eyes. Leading ulema in several Muslim countries, such as Saudi Arabia, Qatar, Kuwait, Egypt, Sudan and Syria have outlawed triple talaq in one sitting and halala on Islamic grounds, and Nadvi insists that there is no reason why the Indian ulema should not do the same.
Another Indian Ahl–i–Hadith scholar who has written on the vexed issue of triple talaq in one sitting is the Kuwait-based Hafiz Muhammad Ishaq Zahid. In his Ahl-i–Hadith Aur Ulema-i Harimayn Ka Ittefaqi Ra’i (‘The Consensual Opinion of the Ahl–i–Hadith and the Ulema of the Holy Cities’), Zahid makes much the same arguments as Nadvi. He adds that ‘Umar’s opinion has no legal status since ‘Umar himself later revoked it. On the question of the alleged ‘ijma of the sahaba on ‘Umar’s ruling, he follows Nadvi in dismissing this claim, and goes so far as to label it ‘baseless propaganda’. He writes that even the conservative ulema who claim an ‘ijma of the sahaba on ‘Umar’s opinion agree that prior to ‘Umar there existed an ‘ijma on Abu Bakr’s opposition to triple talaq in one sitting and on his insistence on the talaq-i sunnat method. The ‘ijma of the sahaba in Abu Bakr’s time has more legitimacy than the alleged ‘ijma in Umar’s time, says Zahid, for the Sunnis believe Abu Bakr to have been superior to ‘Umar. Hence, the ‘command’ (hukm) of ‘Umar cannot be held to overrule the ‘ijma of the sahaba in Abu Bakr’s time on the matter of divorce, especially since it was identical to the Prophet’s own opinion.
Likewise, Zahid, adds, the fourth Caliph of the Sunnis, Hazrat ‘Ali, did not accept ‘Umar’s ruling on triple talaq, and hence the alleged ‘ijma cannot be said to have been accepted after ‘Umar as well. In actual fact, says Zahid, ‘Umar’s decision was his own personal ijtihad, not a legal order based on the Shari’ah. The ijtihad of a person is not binding on anyone else and has no validity if it goes against the explicit commandments of the Koran and the genuine Hadith. Furthermore, a person’s ijtihad cannot be regarded as permanently binding, for a rule derived from ijtihad changes with change of time or place (zaman-o makan), and lacks permanent status, unlike the Koran and the sunnat of the Prophet. For these reasons, Zahid writes, the ruling of ‘Umar has no legal binding. Instead of following it, Muslims must follow the method of divorce laid down in the Koran and enjoined upon by the Prophet.
The Ahl-i Hadith are not alone in their opposition to the stance of many Deobandi and Barelvi ulema and the AIMPLB on the question of the practice of triple talaq in one sitting. Numerous Muslim reformers have lent their voice to the demand that the practice be outlawed. Yet, blind adherence to the established schools of jurisprudence as well as deeply entrenched patriarchy continue to pose a major hurdle in coaxing the conservative ulema to agree to ban the practice. As the refusal of the AIMPLB to condemn the practice suggests, the conservative ulema seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself.
Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 10
Algeria: Islam is the religion of the State and the Maliki school is predominant.
Divorce is only established by a judgement of the court and must be preceded by reconciliation efforts by the judge. Efforts at reconciliation are not to exceed three months.
Bangladesh: Since 1988, the State religion of the republic is Islam and the Hanafi school is predominant.
The provisions of the Muslim Marriages and Divorces (Registration) Act, 1974 on divorce are similar to the situation in Pakistan (see below).
Egypt: Islam is the religion of the State and the Hanafi school is the predominant school of fiqh.
Talaq expressed indirectly, while intoxicated or under coercion, or conditionally with the intent of forcing the taking of some action has no effect. A talaq to which a number is added verbally or by gesture is effective only as a single and revocable talaq, except for the third of three… A written and notarised certification of talaq must be produced within 30 days of repudiation and the notary must forward a copy of the certificate to the wife.
India: India is a "sovereign socialist secular democratic republic"; among the Muslims, the predominant school is Hanafi. The Muslim Personal Law (Shari’at) Application Act, 1937 directs the application of Muslim Personal Law to Muslims in a number of different areas related to family law. Muslim Personal Law is applied by the regular court system.
The Muslim husband retains the right to repudiate his wife extra-judicially, and from the available sources it appears that the most common form of divorce is the triple talaq. The stance of the pre and post-independence courts has generally been to accept extra-judicial repudiation as "good in law, bad in theology".
Indonesia: "The State is based upon the belief in the One, Supreme God" and the majority of the population is Shafi’i Muslim.
The Marriage Law provides that divorce shall be carried out only before a court of law, after the court has endeavoured to reconcile the parties. A husband married under Islamic law may submit a letter notifying the religious court of his intention to divorce and giving his reasons. If the husband’s reasons accord with any of the six grounds for judicial divorce outlined in the Marriage Law and the court determines that reconciliation is not possible, the court will grant a session in order to witness the divorce. Either spouse may seek a judicial divorce (preceded by reconciliation efforts by the judge) on specified grounds.
Iran: The official State religion is Islam and the Ja’fari school is predominant.
A 12-article law on marriage and divorce passed in 1986 allows the wife the right to obtain a divorce if the husband marries without her permission or does not treat co-wives equitably in the court’s assessment.
Talaq is governed by classical Shi’i law, requiring a specific formula and two male witnesses. A conditional formula of divorce is invalid. The 1992 amendments provide that registration of divorce without a court certificate is illegal.
Iraq: The current provisional constitution declares Islam the State religion and the Ja’fari and Hanafi are the predominant schools.
Talaq must be confirmed by the Shari’a Court’s judgement or registered with the court during the ‘idda period. Talaq by a man who is intoxicated, insane, feeble-minded, under coercion, enraged (madhosh), or seriously ill or in death sickness is ineffective. All talaqs are deemed single and revocable except the third of three.
Libya: Islam is the official State religion and the Maliki school is predominant.
With reference to divorce, Article 28 of the Civil Code states that "[i]n all cases, divorce shall not be established except by a decree by the relevant court". Talaq uttered by a minor, insane, demented or coerced husband or without deliberate intent is invalid, as is talaq that is suspended or conditional. Any talaq to which a number is attached is considered single revocable (except the third of three).Most of the grounds for judicial divorce are available to men as well as women. Judicial divorce may be obtained if the parties do not agree to talaq by mutual consent and arbitration and reconciliation efforts fail and harm is established.
Malaysia: Islam is the official State religion; the majority of Muslims are Shafi’i, with Hanafi minorities.
A divorce may be granted only by a court. You may petition for a divorce:
a. by mutual consent, i.e. both parties consent to the divorce, by way of a joint petition; or
b. if there is no mutual consent, by way of a contested petition.
(Source: http://www.lawyerment.com.my/family/divorce.shtml. Information compiled & extracts from Bar Council Malaysia).
Pakistan: Islam is the State religion and the predominant school is Hanafi.
The Muslim Family Laws Ordinance, 1961 considers every talaq except the third of three as single and revocable. The MFLO introduced marriage registration and provides for penalties of fines or imprisonment for failure to register. The MFLO requires that the divorcing husband shall, as soon as possible after a talaq pronounced "in any form whatsoever", give the chairman of the Union Council notice in writing.
The chairman is to supply a copy of the notice to the wife. Non-compliance is punishable by imprisonment and/or a fine. Within 30 days of receipt of the notice of repudiation, the chairman must constitute an Arbitration Council in order to take steps to bring about a reconciliation. Should that fail, a talaq that is not revoked, either expressly or implicitly, takes effect after the expiry of 90 days from the day on which the notice of repudiation was delivered to the chairman. If the wife is pregnant at the time of the pronouncement of talaq, the talaq does not take effect until 90 days have elapsed or the end of the pregnancy, whichever is later.
Syria: Article 3(1) of the Constitution declares that the religion of the President of the Republic shall be Islam. Article 3(2) declares Islamic jurisprudence a main source of legislation. The Hanafi school is predominant.
Talaq uttered while intoxicated, disoriented/enraged, under coercion, during death sickness or grave illness, or in order to coerce is ineffective. Talaq to which a number is attached shall be considered a single revocable repudiation (except the third of three).
Either spouse may apply for a judicial divorce on grounds of discord causing such harm as makes cohabitation impossible (after reconciliation efforts). The divorced wife may be awarded compensation of up to three years’ maintenance (in addition to the maintenance owed her during her ‘idda) if the judge finds the husband’s exercise of talaq to have been arbitrary.
Tunisia: Islam is the state religion and the Maliki school is predominant.
Talaq or extra-judicial divorce are prohibited. An irrevocable divorce becomes a permanent impediment to remarriage between divorced spouses. Judicial divorce is available, after reconciliation efforts, at the request of either party.
It is evident from the above examples that in most Muslim majority countries, including those that claim to be run on Islamic principles, triple talaq (instant divorce) is prohibited. Similarly, polygamy is either prohibited or is permissible under specific circumstances and only after permission has been obtained from the courts and the existing wife.
It is therefore not true that the subject matter of ‘Muslim Personal Law’ in India are God-given laws that are immutable and all Muslims are obliged to follow them.
(Researched by Javed Anand).
(Source: Except in case of Malaysia, the source for other countries is http://www.law.emory.edu/IFL/legal/)
Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 11
In the black or white mental universe of these self-proclaimed crusaders, no shade of grey is permissible. Since they are the sole defenders of faith, they alone must have the unquestioned right to interpret it. Because their belief system is forever in danger, in the eternal ‘Holy War’ they are engaged in there can be no neutral ground and the distinction between friend and foe is critical. You are either "us" or "the enemy".
It is therefore not in the least surprising that in the last few weeks, under cover of a motley crowd of bearded men in flowing robes, pompously projected as Hazrat Maulana so-and-so, plus some truly pseudo-secular politicians from the Congress and the Samajwadi Party with an eye on the Muslim vote (assembly elections are around the corner in Maharashtra), the Urdu Times published from Mumbai has launched a jihad against the less than year-old Muslims for Secular Democracy (MSD).
The Urdu Times’ hostility towards MSD since the latter’s inception on Gandhi Jayanti Day (October 2, 2003) has been evident from the twisted logic emanating from the warped minds of several of the columnists and editorial staff of the Urdu daily. That this should be so is also not surprising.
MSD stands committed to equal citizenship, rule of law, fundamental rights, gender justice and an emphatic ‘No’ to both ‘Mob Violence’ and ‘Bomb Violence’. What the Urdu Times stands for, on the other hand, is best understood from how it celebrated the devastating earthquake that took a huge toll on life and property in the Latur and Osmanabad districts of Maharashtra several years ago, as Allah’s revenge on the infidels.
"Delays there may be, but Allah’s ways are always just… We Muslims are of the firm conviction that Allah’s curse is sure to fall on those who have made life miserable for Indian Muslims. Latur and Osmanabad are districts from where many villagers had sent a number of kar sevaks to Ayodhya. They participated in the demolition of the Babri Masjid on December 6… Praise be to Allah Almighty who has reduced to dust those who committed sacrilege on the sacred soil of the Babri Masjid" (Editorial in the January 22, 1994 edition of the Urdu Times).
The delegation told the police commissioner that the voice of MSD would not be stifled by threats or the use of violence
On the eve of the All India Muslim Personal Law Board’s Kanpur meeting (July 4), MSD held a press conference in Mumbai to reiterate its demand for an end to the inhuman and anti-women practice of triple talaq and for gender just reforms in all existing personal laws, including the Muslim Personal Law. This is the ‘provocation’ for which the Urdu Times, dismissed as a communal rag by many sensible Muslims, has launched its jihad against MSD since early July.
It has published articles delving into the personal life of MSD’s president, Urdu poet and lyricist, Javed Akhtar, in very distasteful and extremely offensive language. Far more insidious, however, are the other ‘news reports’ and articles published by the daily, inciting hatred and instigating violence against Akhtar in particular and MSD’s office bearers and members in general. Akhtar was warned: "Remain in your senses… the day is not far when you too will be counted amongst infamous blasphemers such as Salman Rushdie and Taslima Nasreen…"
The "Hazrat Maulanas", who, according to the Urdu Times, held an emergency meeting to serve the ultimatum on Akhtar and the MSD, also appealed to all Muslims to impose a total social boycott against the likes of Akhtar.
In other reports and articles, MSD and its members have repeatedly and variously been described as "enemies of Islam", "munafiqeen" (dictionary meaning: hypocrites, infidels, atheists, despoilers), a communist-led outfit that is part of an international breed of Muslim traitors, who while pretending to be Muslims are in fact "pro-US, pro-Zionists, pro-sangh parivar".
But the most shocking instance of the daily’s inflammatory and highly irresponsible writing assumed the form of an orchestrated campaign against Sajid Rashid (executive chairman, Maharashtra State Urdu Academy, editor, Hindi eveninger, Hamara Mahanagar and vice-president, MSD), for allegedly "insulting the Koran". That this campaign against Rashid could incite some hot-headed Muslims into violence against him makes the bogus allegation despicable; else it is so frivolous as to be laughable.
On July 19, a delegation of MSD office bearers, accompanied by Teesta Setalvad (secretary, Citizens for Justice and Peace), Nikhil Wagle (editor, Mahanagar), met the Mumbai police commissioner, AN Roy to demand criminal prosecution of the editors, publisher, proprietors and certain correspondents and columnists of the Urdu Times for inciting hatred and instigating violence against Akhtar and Rashid in particular and other members of MSD in general.
The delegation told the commissioner that the voice of MSD would not be stifled by threats or the use of violence and that MSD would hold Urdu Times solely responsible should there be any incident of violence against any member of MSD in the coming months. They added that they expected the police force in a secular society to stand by those who stood for fundamental freedoms rather than those who threatened violence to silence a dissenting view.
The police commissioner assured the delegation that he would immediately ask the legal department of his police force to examine MSD’s demand for criminal prosecution.
Archived from Communalism Combat, July 2004 Year 10 No. 99, Cover Story 12
In a call to all progressive lawyers, Justice PB Sawant says that the powers that be are inimical to the Indian Constitution that is a culturally and socially transformative document
In a call to all progressive lawyers, Justice PB Sawant says that the powers that be are inimical to the Indian Constitution that is a culturally and socially transformative document
On 18th June 2020, PM Narendra Modi launched the auction of 41 coal blocks across India for commercial mining, under the Aatma Nirbhar Bharat Abhiyan. But massive protests from several quarters, including the 3-day all India coal workers’ trade unions strike, is a major reminder of what’s at stake for the millions of Adivasi lives; and our environment at large.
On 18th June 2020, PM Narendra Modi launched the auction of 41 coal blocks across India for commercial mining, under the Aatma Nirbhar Bharat Abhiyan. But massive protests from several quarters, including the 3-day all India coal workers’ trade unions strike, is a major reminder of what’s at stake for the millions of Adivasi lives; and our environment at large.