The national conference of the AIMPLB in Bhopal was an occasion to do some soul searching for this so called custodian of Islamic Sharia in India. It could have provided them the opportunity to call for some kind of introspection about the state of Muslim personal law in India and why it lags behind other communities in terms of being gender just. There could have been deliberations on why recently Muslims in India have come to have a bad name and why their religion is being termed as backward. Alas, all this was not on the radar of the AIMPLB. Rather what we got was the same old story of how the state was trying to interfere with the sacred nature of Muslim personal law and how it was threatening the constitutional freedoms guaranteed to the Muslim community.

There are two fundamental problems with the argument of the AIMPLB. Firstly, the sharia is not sacred in the sense that it is not the word of Allah. The sharia (literally meaning the path) has evolved over the centuries and there have been many interpretations to a particular religious problem. The very existence of four law schools within Islamic world is proof that different interpretations of scriptures were held valid not only in different points of time but also in different places at the same time.

This elasticity within Islamic law was the reason why it could evolve with the changing times and incorporate various contemporary social and political changes. After all, the law of marriage has been reformed in many countries, including some of the orthodox Muslim ones. No one has criticised them of tampering with the scared nature of Islamic sharia. Rather, people have welcomed the move and argued that it shows that Islam, like any other religion, can change with the times. The problem with the AIMPLB is that it thinks that Islam as a religion cannot and should not change.

Not just the Quran, but even the juridical pronouncements of some Mullah is considered sacred by them. This is clearly erroneous and a product of a faulty reasoning which equates sacredness with the community. Actually, truth and rights are not the concern of AIMPLB; rather it is the community which in turn is very narrowly defined as consisting of scholars having a similar opinion. Clearly then, nothing positive can come out of such a body as was witnessed during the recent Bhopal conference.

The second problem in the argument of the AIMPLB is related to the first. After claiming that Islam in unchanging, they project the same argument on the constitution arguing that it is the constitutions which has granted them religious freedom. Partly this is true. But what the AIMPLB forgets is that the constitution also is continuously interpreted and it cannot be read to justify practices which are clearly at variance with the cherished goals of the constitution. Clearly the Supreme Court did find that the practice of triple talaq was inherently discriminatory towards Muslim women and therefore it was struck down. The way forward for the AIMPLB should have been to debate which other laws can be read as discriminatory towards women and initiate reforms within the community. Rather the concern for the AIMPLB is just the opposite: it wants to study the SC judgment to see whether it contradicts the sharia in any way!

Despite the SC verdict, the AIMPLB still clings to its view that though triple talaq is sinful but yet it is valid in the eyes of Islamic law. None other than Mahmood Madani endorsed such a view soon after the verdict. Thus it is clear that the AIMPLB does not take even the Supreme Court and its decision seriously and opens itself to the charge that actually it does not believe in India’s constitutional democracy. Had there been a different political climate, the AIMPLB would surely have filed for a review petition. They have themselves argued that since the judge has changed, filing a review petition might throw up other practices like polygamy, nikah halala, etc. into the limelight and they fear that there might be another adverse ruling for them.

Thus it is entirely clear that in their hearts they have not accepted the judgment of the Supreme Court and that they still think that there is nothing wrong with the Muslim personal law. In short they have not derived any lessons from their defeat. The problem is that one does not require the AIMPLB to open the agenda of reforms on issues like polygamy and nikah halala. Anyone can approach the courts for this purpose. Muslim women organizations are already planning to do so. The Board will again try to meddle into this only to be soundly defeated by constitutional logic. Wont it be better that the Board itself gives a clarion call for reforming and outlawing these practices. But given the history of the Board, this is too much to expect from them.  

In the calculation of AIMPLB, the call of reforming Muslim personal law is largely driven by urban educated Muslim women. The large majority of Indian men and women are with the Board and this assessment may be right. Since they do not want to upset the existing balance of power between men and women, the AIMPLB will never take a stance on upsetting that balance. Even a reasonable demand like the abolition of triple talaq was met with stiff resistance from the Board. The AIMPLB therefore does not exist for the cause of Islam, rather they exist solely to maintain the balance of patriarchy which obtains in the Muslim society. Until they sense that this balance is changing, they are not going to change their stance.

However, things have changed a little now. There are organizations now working on the ground who are ready to approach courts for this purpose. This is something new as in the past these organizations were not there and many so called progressive left organizations refused to take the line of reforms through judicial intervention. Today Muslim women have come out of the shadows of the organized left and are challenging the system themselves. Thus even if the AIMPLB has popular support, it amounts to nothing as the courts hopefully do not work on the logic of popular support. 

Arshad Alam is a columnist with NewAgeIslam.com

Republished with permission from NewAgeIslam.
 

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Even while claiming to respect the August 22 verdict of the Supreme Court’s constitution bench, the All India Muslim Personal Law Board (AIMPLB) has chosen to stick to its stand that though sinful instant triple talaq remains valid in Shariah. By a 3:2 majority judgment, the 5-member constitutional bench had declared the Muslim practice of instant divorce as both “un-Quranic” and “bad in law”.

The Board’s response was made clear at its executive committee meeting of the AIMPLB in Bhopal on Sunday. This is the first meeting of the Board’s executive committee after the apex court’s verdict.

During informal discussions a strong view emerged that seeking a review of the apex court’s verdict was risky. A new chief justice has taken over and there was a likelihood of other issues like nikah halala and polygamy being included in the hearing. In view of the apprehensions, there was no formal discussion on the review question.

The Board accused the Union government of targeting Muslim personal law and welcomed the 3:2 verdict of the constitutional bench in favour of personal laws being an integral part of religious freedom which in turn was a guaranteed fundamental right.

The executive committee resolved to appoint a special committee comprising of senior religious scholars and lawyers to examine the apex court’s order and identify inconsistencies within it vis-à-vis the Shariah.

Board member Zafaryab Jeelani said the Board has consistently maintained that instant triple talaq is an undesirable practice and that the Board’s ongoing campaign to educate Muslims will continue. He added that an appeal has been issued to qazis across India to advice couples in this regard during the nikaah ceremony and “if possible” to incorporate an appropriate clause in the nikahnama.

A statement issued by the Board stated: “The government had laid bare its intention in the form of the Attorney General’s submissions in the Hon’ble Supreme Court that all forms of dissolution of marriages without intervention of the court should be declared as unconstitutional. We register our displeasure and consider it as attack on personal law of Muslims. This stand of the present government is contrary to the protection guaranteed by the Constitution of India. We make [a] categorical statement that the community cannot and shall not tolerate such attack on personal law of Muslim community.”

A longtime Board member Kamal Farouqui was quick to tell the media that the AIMPLB did not believe in taking issues to the street and adopt a confrontationist stand. It may be recalled, however, that taking to the streets and adopting an aggressive posture is precisely how the Board had reacted to the apex court’s verdict in the Shah Bano case in 1986. The all-India agitation had continued until the then Union government headed by Prime Minister Rajiv Gandhi bowed to the Muslim demand for a separate law for divorced Muslim women.

On the issue of seeking a review, one Board member made some interesting remarks while talking to the Indian Express.  He said: “There is a saying in Urdu, ‘Namaz bakshwane gaye they, roze gale padh gaye (Had gone to seek exemption from namaz, ended up being saddled with roza)’. Things have changed since the last order, there is a new CJI [Chief Justice of India], there will be a new Bench looking at it. What if they do not feel the same way about personal laws? What if they want to examine other practices like polygamy, nikah halala etc, like the original two-judge Bench had wanted examined? We would end up opening more fronts than we would like to. That is why the review petition never came up in the executive committee.”

The Babri Masjid case pending before the Supreme Court was also discussed at the executive committee meeting. While reiterating its earlier stand of respecting the apex court’s verdict whatever it might be, the Board expressed surprise at the court’s decision for a day-to-day hearing of the matter in December.
 

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On Tuesday, during a week of intense judicial examination of the validity of triple talaq, the NGO All India Muslim Personal Law Board made a statement that left several Muslim women and women’s rights activists rolling their eyes.

Marriage, the Board told the Supreme Court, is essentially a contract according to Islam, and a Muslim woman can choose to insert specific clauses and conditions in her nikahnama (marriage contract) to safeguard her own interests – including the rejection of instantaneous triple talaq that Muslim men can pronounce to divorce their wives.

Technically, this is all true. The Islamic nikah is the only religious marriage in India that sees marriage as a contract between husband and wife rather than a holy sacrament. And in an ideal, gender-sensitive nikah, both the bride and the groom would have the right to mutually negotiate the terms of their contractual union.
A Muslim woman could, in this ideal case, ensure that her nikahnama mentions a high mehr, the amount that a groom pays the bride for her financial security in case of a divorce. She could also claim the right to pronounce triple talaq herself, or prohibit her husband from pronouncing this form of instantaneous divorce.
But how often does this ideal situation actually play out in the lives of Muslim women on the ground?

Almost never, say the women themselves. In a patriarchal society where women barely have the right to choose their own spouses, the bride and her family have little or no say in wedding-related decisions. Nikahnamas are typically drawn up by qazis or priests, many of them affiliated to the Muslim Personal Law Board itself. And according to women’s rights activists, the majority of Sunni qazis have no inclination to make brides aware of their right to negotiate the terms of marriage.

Brides with no say

“Most Muslim wives have no idea what is written in their nikahnama, forget having a say deciding the terms of the contract,” said Noorjehan Safia Niaz, a co-founder of Bharatiya Muslim Mahila Andolan, one of the organisations that has petitioned the Supreme Court against triple talaq. “In fact, in a survey we did of Muslim women, we found that 50% of wives don’t even know where the nikahnama is kept in their marital homes.”

This is evident in the case of Gausiya Ahmed, a 28-year-old Unani doctor from the Maharashtrian town of Bhiwandi. When Gausiya had an arranged marriage in 2014, neither she nor her family had a chance to even read her nikahnama before it was placed in her hands for a quick signature on the wedding day.

“My parents and I were not involved in anything. The qazi wrote the nikahnama and decided on a wedding date and mehr amount with my husband’s family. I was simply told to sign the paper,” said Gausiya, who claims she was never even given the bride’s copy of the wedding contract. “This is how it has been with all my friends and relatives who got married – the bride’s family is not in a position to have a say.”

After a year of suffering extreme domestic violence at the hands of her in-laws, Gausiya received a written notice of triple talaq from her husband, for giving birth to a daughter instead of a son. She has refused to accept the validity of the divorce, but the ordeal led to her finally getting a copy of her nikahnama. “It doesn’t say anything about talaq,” said Gausiya. “The qazis are the ones who control weddings, and they will never let the woman get any divorce rights in the nikahnama. Because obviously, which woman would agree to a marriage that allows the husband triple talaq?”

‘Taboo to mention divorce’

Even if the bride is aware of her right to negotiate aspects of the nikahnama, societal pressures often make it impossible for her to exercise this right.

“In our culture the bride’s family often has a huge inferiority complex with respect to the groom’s family, so they don’t feel comfortable asking for a large mehr amount in the contract,” said Noorjehan Niaz. “And mentioning divorce in a nikahnama is considered inauspicious.”

On this matter, even the clerics seem to agree. Maulana Mehmood Daryabadi, the general secretary of the All India Ulema Council, admitted that including any kind of divorce clauses in a wedding contract is viewed as a taboo, particularly by the bride’s family.

After all, said Daryabadi, “no one likes to talk about death at the time of a wedding”. Death? Did he mean divorce? “Well, it’s the same thing,” he said. “These are not things people like to bring up during a happy occasion.” Most nikahnamas, then, simply contain the names of the bride, groom and witnesses, and mention the mehr amount.

A model nikahnama

On Wednesday, while hearing arguments for and against triple talaq, the Supreme Court asked the All India Muslim Personal Law Board if it could issue a “modern and model nikahnama” that provides wives the right to decline triple talaq.

The concept of a model nikahnama of this kind is not new, but examples of such progressive marriage contracts in India are few and far between.
One example is the model nikahnama issued by the All India Muslim Women’s Personal Law Board, an organisation founded in 2005 as a counter to the All India Muslim Personal Law Board’s male-centric world view. First published in 2008, this model nikahnama includes several clauses safeguarding a woman’s rights in marriage.

The nikahnama rejects all forms of unilateral, instantaneous triple talaq, and specifically mentions that “talaq” uttered over the phone, internet, text messages or other media would be invalid. It also does not recognise divorce pronounced in a fit of anger or intoxication. To divorce their wives, the model nikahnama allows for non-instantaneous Islamic talaq, uttered three times over a period of several months, with a three-month gap between each utterance to allow both spouses to rethink the divorce and revoke it if necessary. This nikahnama specifically provides for khula, a practice that allows a woman to release herself from the marriage by returning her mehr to the husband.

The success of the women’s board’s nikahnama has been limited so far. “We printed 1,000 copies of our model nikahnama in 2008, in Hindi and Urdu, and last year they all got used up,” said Shaista Ambar, the founder-president of the All India Muslim Women’s Personal Law Board. Ambar is now bringing out a new edition, with English included as a language, to cater to a growing demand from emigrant Indians.

The All India Shia Personal Law Board issued a similar model nikahnama last year. And occasionally, there have been rare cases of Muslim women using the Islamic provision of talaq-e-tafweez to secure divorce rights in their nikahnamas. Under talaq-e-tafweez, the husband delegates the authority of pronouncing a divorce to his wife, under specific conditions agreed upon in the contract.

For instance, in the case of Mohd Khan versus Shahmali in 1971, the wife had stipulated in her prenuptial agreement that her husband would live in her parents’ home after marriage. When he didn’t, she sought a divorce that was upheld by the Jammu and Kashmir High Court.

So far, however, the All India Muslim Personal Law Board that claims to represent the majority of Indian Muslims has not included provisions like talaq-e-tafweez in any of the nikahnamas it has issued over the years.

“In 25 years, we have spoken to so many clerics about making nikahnamas more modern, but they just don’t want it,” said Hasina Khan, founder of Bebaak Collective, one of the women’s groups petitioning against triple talaq. “So even if in theory the Board says that the bride and groom can make their own nikahnama, in practice it is always the word of the qazi that controls marriages.”

Republished with permission from Scroll.

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Muslim women in Mumbai demanding ban on triple talaq. File picture.

With no hope of help from the All-India Muslim Personal Law Board, Muslim women victims of instant divorce (triple talaq) are approaching Prime Minister Narendra Modi and UP CM, Yogi Adityanath for justice for Muslim women.

Among them is Shumayla Javed, a national-level netball player who is now living with her parents in Peerzada locality of Amroha in UP.

The Hindustan Times, among others in the print and electronic media, reports that married in February 2014, Shumayla gave birth to a daughter in May 2015. That became the reason for her husband to unilaterally terminate the relationship in April 2016 by pronouncing the dread words ‘talaq, talaq, talaq’.

She now believes that triple talaq among Muslims is a social evil which must be eradicated. Accordingly she has written to Modi and Adityanath seeking justice for Muslim women victims of triple talaq.

Since the divorce Shumayla has been living with her parents in Amroha and works as a data entry operator for a living. She claims that the police had refused to lodge her complaint post the divorce but in the changed political climate she is hopeful of getting justice.

Before her, two other Muslim women from her city, Marium and Shaheen have also spoken out against triple talaq and demanded a ban on the practice.

The MLA from Amroha and former minister Mehboob Ali has promised to extend all possible help to the player in her search for justice, according to the Hindustan Times report.

Meanwhile, the Okhla Times has reported that after the recent launch of an exclusive helpline by the All India Muslim Personal Law Board, the Jamaat-e-Islami, Hind, has designed an app to create awareness on personal laws and to “counter propaganda” regarding triple talaq.

Titled Muslim Personal Law Awareness Campaign, the app can be downloaded from the Jamaat’s website, jamaateislamihind.org.  
 

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Image: Economic Times

Tellingly, Ansari reportedly participated in the golden jubilee of the All India Majlis-e-Mushawarat in September, 2015 and in his landmark keynote address, he urged the Indian Muslims, particularly the ulema section to apply the ijtihad or the creative and thoughtful rethinking of the Islamic jurisprudence (fiqh) in spirit of the Preamble and the values of the Constitution.

But now, surprisingly enough, the wife of the Vice-President of India, Salma Ansari has come out with a sharp rebuttal of the triple-talaq's advocates so clearly and unequivocally as this: "There can be no divorce just because someone says: talaq, talaq, talaq".

Last Saturday, shei said that just uttering the word ‘talaq’ three times does not amount to a legitimate divorce, while asking the Muslim women to engage with the thorough reading of the Qur'an instead of relying on the Muslim clerics for their views on Islam", as reported in the Hindustan Times.

While the Allahabad High Court observed in December 2016 that triple talaq is an ‘unconstitutional’ practice and thus a dissenting debate on its religious legality in Islam was reinstated,  Mrs. Ansari shows a firm conviction that women can find an answer to their questions in the Qur'an itself.

At an event in Aligarh, she exhorted the Indian Muslim women: “If you’ve read the Qur'an, then you can find the solution there itself. There is no such rule in Qur'an. They have just made it up…. You read the Qur'an in Arabic and but you don’t read the translation. You accept whatever the Maulanas (clerics) or the Mullas say. Read the Qur'an and Hadith and see what Rasool (Prophet Muhammad) had said”. Thus, Salma Ansari tried to ignite a flame of desire in the Muslim women to comprehend the Qur'an by themselves and introspect on its texts related to talaq. Notably, a complete and comprehensive chapter (Surah) in the Qur'an is named as "al-Talaq".

Significantly, the Vice-President's wife has issued her remarks in the wake of three controversial and widely discussed incidents. First, some Muslim women in Uttar Pradesh are reported to have met the Chief Minister Yogi Adityanath for justice in their cases of triple talaq over the phone. And it is common knowledge that the ruling party in the state has always been claiming to end triple talaq which it considers an 'irreparable damage to the lives of Muslim women'.

Secondly, on April 5, several Muslim women reportedly met the Uttar Pradesh Minister for Women and Family Welfare to express their support for the current government’s stand on triple talaq. These women also sought the practical support from the Indian Prime Minister who had taken a resolution to end the practice considering it as an 'evil'.

Thirdly, the hereditary head of the Ajmer Dargah (or the Diwan), Syed Zainul Abedin categorically stated during the recently held annual Urs of Khwaja Gharib Nawaz: "Muslim men should end the practice of triple talaq, which goes against the spirit of Qur'an".  Abedin condemned the practice of triple talaq and its prevalence in the Muslim community in the presence of chief custodians of various Sufi dargahs of the country who gathered at Ajmer Dargah. He questioned: "Why are some people in the community reluctant to give up the practice which Qur'an and Prophet Mohammed never approved" and wondered if it was comprehendible for the reasonable Muslims.

"Time has come to eschew the practice that victimises our sisters and daughters”, he said, as reported in several media outlets.

What is more catching and thought-provoking is Salma Ansari's greater emphasis that 'women should not blindly follow anyone [among the clerics], as they can be easily misguided if they don't read the Qur'an'. Clearly, She is referring to the innumerable verses in "Surah Talaq" and other chapters of the Qur'an, which are patently clear in their premises against the prevailing misconception of the Muslim clergy.

Like what she avers that uttering "talaq, talaq, talaq" is an un-Islamic custom, many authoritative commentators of the holy Qur'an have endorsed that it had a common prevalence in the pre-Islamic Arabia known as al-Arab al-Jahili (the Arabia of ignorance). Arab men, particularly in Mecca would abandon their wives simply saying this: “You are to me like my mother’s back". This is what the Qur'an reports in the verse, 58:2. But in a brazen violation of the Qura'nic viewpoint, the nasty practice of triple talaq has survived in the global Muslim society as a remnant of the pre-Islamic Arabian custom.

Ansari has put the nail right on the head by stating that Muslim women can be easily misguided if they don't read the Qur'an. These few examples from the Qur'an, even though there are a lot more, will suffice to unearth the truth:
 

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अदालत ने कहा है कि पर्सनल लॉ बोर्ड संविधान से ऊपर नही हो सकते। अदालत के मुताबिक ऐसे बोर्डों को भी संविधान के मुताबिक काम करना होगा. तीन तलाक के खिलाफ दायर याचिका पर सुनवाई करते हुए हाई कोर्ट ने ये बातें कहीं।
 

वहीं आल इंडिया मुस्लिम पर्सनल लॉ बोर्ड ने इस फैसले को शरियत के खिलाफ बताया है. बोर्ड अब इस फैसले को सर्वोच्च अदालत में चुनौती देगा।

केंद्र सरकार तीन तलाक के पक्ष में नहीं है। सरकार ने 7 अक्टूबर को सुप्रीम कोर्ट में हलफनामा दिया था कि तीन तलाक की संविधान में कोई जगह नहीं है। तीन तलाक और बहुविवाह की इस्लाम में कोई जगह नहीं है। इसके बाद सरकार ने मुस्लिम संगठनों की राय जानने के लिए 16 सवालों की प्रश्नावली भी तैयार की जिसका  ऑल इंडिया मुस्लिम पर्सनल लॉ बोर्ड ने बहिष्कार करने का ऐलान किया। ट्रिपल तलाक के अलावा यूनिफॉर्म सिविल कोड के मुद्दे पर भी ऑल इंडिया मुस्लिम पर्सनल लॉ बोर्ड केंद्र सरकार के रुख का विरोध कर रहा है।

समाजवादी पार्टी नेता अबू आज़मी ने इस फैसले पर कहा कि ट्रिपल तलाक का मामला पूरी तरह से धार्मिक मामला है। ट्रिपल तलाक का मतलब अलग है। संविधान देश का और कुरान शरियत दोनों अलग चीजें हैं। आडवाणी पाकिस्तान में पैदा हुए तो हिंदुस्तान आ गए। अगर कल हिंदुस्तान में कह दिया जाए कि हिंदू अपने मुर्दो को जला नहीं सकते, मंदिर नहीं जा सकते तो उनसे पूछा जाएगा कि उनका धर्म बड़ा या कानून बड़ा। हम अपने इस्लामिक कानून में दखलंदाजी नहीं चाहते।

Courtesy:  Janta Ka Reporter
 

The post पर्सनल लॉ बोर्ड संविधान से ऊपर नहीं, ‘तीन तलाक’ पर इलाहाबाद हाई कोर्ट की टिप्पणी appeared first on SabrangIndia.

Representation Image

In the background of a bunch of writ petitions filed before the Supreme Court by some Muslim women’s organisations and individual victims, challenging the regressive and arbitrary practices of triple talaq, halala and polygamy among India’s Muslims, the Law Commission has come out with a questionnaire on the viability of a uniform civil code. The timing of the release of this questionnaire close on the heels of the Union of India’s categorical stand against these arbitrary and unconstitutional practices before the Supreme Court, has raised concerns in the minds of those pressing for serious reforms in the personal laws of India’s Muslims.

 
One concern is that, this would enable the All India Muslim Personal Law Board (AIMPLB) – a self-appointed custodian and defender of Islam – to whip up a fear psychosis in the Muslim community and stonewall any meaningful outcome in the pending legal proceedings. Predictably, the (AIMPLB) has issued a call to all Muslims to boycott the questionnaire. That this stand is immature, illogical and shortsighted is not surprising, given the fact that the Board is like Rip Van Winkle who wakes up once in 20 years to scream that Islam is in danger.
 
It is for the Muslims of India to now exercise their collective wisdom and decide a response to such a perceived threat to their identity. It has been pointed out by a few people that the use of the word “common”, with reference to the civil code in the Law Commission questionnaire, instead of “uniform” used in Article 44, is mischievous as it reflects the Sangh Parivar’s avowed objective of submerging all the diverse cultural and religious identities into a “one culture, one nation” identity known as “Hindutva”.
 
The words of the Law Commission–“to harmonise the various cultural practices” – to express its objective, further reinforce this suspicion in the mind of a beleaguered community which is facing continuous onslaughts from the over-enthusiastic cohorts of the ruling dispensation. To add insult to injury, most of the questions pertain to Muslim personal law.
 
Having said that, what should be the response of the Muslim community to the questionnaire? Should it, (as mandated by the AIMPLB), boycott the questionnaire, or, should it participate in the debate and express its views on the viability and need or otherwise of a uniform civil code? Logically and rationally the answer would have to be “Yes” for the latter proposition. By boycotting the questionnaire and stonewalling any debate or discussion, the Muslim community is rendering itself vulnerable to a “common” civil code being thrust down its throat. And, if this common civil code has a tinge of saffron flavor, then the community will have only itself to blame.
 
On the other hand, by participating in the debate, the Muslim community would be demonstrating its openness to the democratic process and retain the moral right to question any code that seeks to submerge its core identity and values. And in this, the community would find support, not just from other similarly placed minority communities, but also from sections of the majority community itself.
 
It is also time for the Muslim community to introspect on how things have come to such a pass. That the “Shariah” law as practiced in India falls short of meeting the evolved standards of gender justice and equality is a given. Practices like triple talaq, halala and polygamy, steeped in patriarchal and medieval narratives, can hardly be regarded as just and fair.
 
Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity.

The moot question is – are these practices really an integral part of the “Shariah”? Even a cursory study of the history and evolution of the Muslim Personal Law would reveal that the Quranic injunctions and hadith traditions were subjected to a process of logical study, interpretation and deduction by ordinary mortal minds having no pretensions to divinity. Their conclusions are known as “Fiqh”.
 
In India, Fiqh underwent substantial distortion under the British rule and evolved as Anglo-Mohammedan law, which actually passes off as the “Shariah”. Leaving aside the distortions brought in by the British jurists, the fact that the law could be interpreted by those living in the 7^th to the 11^th centuries to suit the then social conditions, leads to the logical conclusion that the changed social context warrants fresh interpretation by modern minds.
 
When the Hudood injunctions prescribing gruesome punishments for moral offences (such as stoning to death for adultery, amputation of limbs for theft and beheading for murder) could be replaced with more humane visitations like imprisonment under a uniform penal code (notwithstanding the spiritual mandate that the offenders who escape punishment in this life would suffer more gruesome punishments in the hereafter), there is no reason why unjust practices like triple talaq and polygamy (which are at best only permitted and not mandated), should not be given up. Why can’t Muslim men give up these misconstrued rights, which are not an essential or integral part of the practice of the religion?
 
Islam, as originally conceived, was a reformist movement that brought about sweeping changes in the established patriarchal system existing in the Arabian peninsula in the 7^th century AD. Unrestricted polygamy, polyandry, female infanticide, buying and selling of women and many other hedonistic practices were put an end to. The rights of women to hold property, to consent for marriage and to seek dissolution of an unhappy marriage were established and enforced. Traditions attributed to the Prophet of Islam even go into minute details of how gently and lovingly men should treat their wives during coitus.
 
The Quran declared that husbands and wives were raiment unto each other, thereby recognising and reiterating the equality of status between men and women. Practices like conditional polygamy were no doubt permitted, but under the circumstance of a lopsided male-female ratio caused by the ravages of prevailing wars. In the present era, where the converse ratio exists and where women command an equal status with men in terms of education, fiscal freedom and physical independence, it would be anachronistic and absurd to say that polygamy has any validity or justification.
 
To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasises monogamy.

To retain polygamy, restricted, conditional or otherwise, in a country governed by a secular, democratic constitution would be undermining the express promise of equality and the right to a life of dignity. The Quran itself unequivocally emphasises monogamy.
 
Marriage as a contract is itself a revolutionary concept. It presupposes equality between the contracting parties. When a marriage cannot be contracted without the consent of both parties, it cannot also be terminated except by consent of both parties or through a process of arbitration (as prescribed in the Quran) or through judicial intervention (as practiced in many Muslim countries). There cannot be a unilateral, arbitrary and whimsical termination of the contract by one party alone without inviting penal consequences.
 
Obviously, capricious practices like triple talaq and polygamy are antithetical to the very idea of equality, which underlies an Islamic marriage. In this context, Muslims have to understand that there is nothing in the Quran or the Hadith traditions that prohibits a progressive approach to matters of social intercourse. It is wrong on the part of the Muslims to claim that giving up these unjust practices would be compromising on their religious identity.
 
The core identity of a Muslim is the belief that there is one God and Mohammed is His messenger. This belief is the essence of Islam and defines the real identity and faith of a Muslim and this is what is protected under Article 25 of the Constitution of India. Secularism is not a millstone to be hung round the neck of any one community. It is a liberating, and yet uniting, principle enshrined in the Constitution. It upholds the right to a life of dignity and equality and therefore binding on all.
 
Muslims have missed the bus by failing to get the personal law codified in conformity with the principles of equality and justice enunciated by the Quran and enshrined in the Constitution. The Muslim Personal Law (Shariat) Application Act, 1937, makes the “Sharia” applicable to the Muslims of India. However, the absence of a definition of Sharia, has led to chaos with seminaries and scholars issuing conflicting fatwas on the same issues. The victims of this chaos are not just the women but also the men.
 
A codified personal law would usher in the much needed clarity and consistency. While the AIMPLB slept over the idea of codification, the Bharatiya Muslim Mahila Andolan (BMMA), a women’s organisation based in Mumbai, boldly came out with a draft code. However, this courageous effort was met with cynicism and derision.
 
Now, with the prospect of a uniform civil code looming large, it would be wise to give up the paranoia and engage in a reasoned debate with the government and ensure that the secular values, religious plurality and cultural diversity, which define the greatness of this country, are not compromised at the alter of uniformity. An effort can still be made to get the personal law codified.

(AJ Jawad is a practicing Lawyer and Mediator at Madras High Court).

(This article first published on Live Law is being republished here with the writer's permission).

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It also called upon the government to ban triple talaq just as the Sati practice among Hindus was banned by the colonial British government long ago.

(Sati practice, first banned in 1829, was applicable throughout the territories under colonial rule. A general ban for the whole of India was issued by Queen Victoria in 1861. The Indian Sati Prevention Act from 1988 further criminalised any type of aiding, abetting, and glorifying of sati).

Speaking to the media, the Board’s spokesperson Maulana Yasoob Abbas stated that the triple talaq method of instant divorce was detrimental to women’s interests.

“Why should the women always bear the brunt of divorce? It is not only the woman but her entire family and her children face the trauma,” said Maulana Abbas, adding, “When Islam treats men and women as equals, how could discrimination against women be justified?”

It may be noted that the triple talaq system of instant divorce is not considered valid among Shias. Commenting on the gross injustice inherent in the practice, he observed: “Even when the government suspends or dismisses a peon, he is given a chance to explain his position, but when a man divorces a woman she is given no chance to put forward her point of view.

Several Muslim women’s organisations – Bharatiya Muslim Mahila Andolan (BMMA), Bebaak Collective, All India Muslim Women’s Personal Law Board – have either already intervened in the Shayara Bano case or are in the process of doing so. The All India Muslim Personal Law Board (AIMPLB), has filed an affidavit in the Supreme Court pleading that the apex body has no right to interfere in Muslim Personal Law matters. The misogynist arguments of the AIMPLB in support of continuing triple talaq have been severely condemned by many Muslim men and women among others.

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Infuriated by the contents of the affidavit in support of triple talaq filed by the All India Muslim Personal Board (AIMPLB) in the Supreme Court a few days ago, the breakaway All India Muslim Women Personal Law Board (AIMWPLB) has decided to intervene in the petitions before the apex court asking for the declaration of triple talaq, halala as unconstitutional.

“The regressive and shameful attitude of the AIMPLB has compelled us to approach the court”, Shaista Amber, chairperson of the Muslim women’s board told Sabrang India. “We abide by the Shariah and will continue to do so till qayamat (day of final judgment). The AIMPLB claims to live by Allah’s law. But in reality it is acting contrary to the procedure for divorce enjoined by the Quran and following the teachings of the Rightly Guided Caliphs who all said and done were human beings”.

Amber is in particular outraged by the contention of the AIMPLB that but for the option of triple talaq (instant divorce), Muslim men might resort to murder in order to get rid of their wives. “What kind of Muslims are these? Islam is about justice, kindness, mercy and compassion, while these people are speaking the language of violence?”

Asked how soon her organisation proposed to approach the Supreme Court, Amber said the AIMWPLB is in the process of building a water-tight case before filing their petition. “Please remember that the AIMPLB is loaded with money, has access to a battery of lawyers. There are builders and others who are generous with their money when it comes to filling the coffers of the maulanas. On the other hand, we are starved of funds, entirely dependent on small donations from poor women. What is more, because of the clout of the maulanas, Muslim lawyers are either in the thrall of the maulanas or scared to stand up against them in court. Such is the shameful state of affairs”, she said.

What if they are unable to find a Muslim lawyer? “We are prepared to engage lawyers from other communities. But given our financial constraint we also have to think of their fees”, she said.
Other Muslim women’s groups have also slammed the affidavit filed by the AIMPLB. The Bharatiya Muslim Mahila Andolan (BMMA) had demanded an apology from the Board for stating that “Male sex is stronger and female weaker.”

"Their stand that men have greater reasoning power compared to women smacks of a medieval mindset and prejudice against women. To presume that this would take care of murder of women and illicit relationships is a fallacy and the facts do not bear this out. Their justification of polygamy and triple talaq contravenes the Constitution," said BMMA’s co-convener  Zakia Soman.

"We vehemently denounce the views of AIMPLB and expect that they withdraw their affidavit, apologise to all women and ensure that their statements in the future are not derogatory to women”, said a joint statement issued by Noorjehan Safia Niaz, co-convenor of BMMA and Sahba Farooqui and Maimoona Mollah from All India Democratic Women's Association (AIDWA).

Says advocate Saif Mahmood, “In my view, there is nothing in the Constitution that protects Muslim personal law. Personal law is not protected under Article 25, which protects the right to religion and which is subject to Articles 14 (equality), 19 (right to life) and 21 (personal liberty). In all such cases, equality, life and liberty will be privileged.”
 
 
 
 

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The fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue.

The tussle between All India Muslim Personal Law Board (AIMPLB) and many liberal and progressive Muslims as well as Muslim women’s organisations, viz. the Bharatiya Muslim Mahila Andolan (BMMA) on the issue of abolition of triple talaq, has brought to the fore an issue which has plagued the Muslim community, especially the women, since ages.

The issue has also been fuelled by Shayara Bano’s case, in which a woman after facing 15 years of domestic violence was divorced by her husband, sending her a talaqnama by post. The issue immediately caught media limelight and parallels started being drawn with the similar rhyming case of Shah Bano of 1985, in which a 62-year-old, mother of five children, divorced from her husband, won the right to alimony in the Supreme Court.

However, the then Congress government under pressure of orthodox ulema passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court judgment and denied even the destitute Muslim divorcees the right to alimony. It was a classic example of placating the orthodox community leaders for the sake of reaping political dividends through community support, which gave tooth to non-representative and decrepit organizations like AIMPLB. The AIMPLB was instrumental in pressuring the government to enact the Muslim Women’s Act in 1986 as well as the Dissolution of Muslim Marriages Act, during the pre-independence period.

It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The recent incidents have reignited the need for codification of Muslim Personal Law today. In fact, what is known as Muslim Personal Law today was known either as Anglo-Mohammedan Law during the British period or simply as Mohammedan Law and was enacted by the British. But after independence the terminology was changed and the Anglo Mohammedan Law, in order to wipe out its colonial stamp, came to be re-named as Muslim Personal Law.

However, its contents did not change. Thus, the change in terminology was oriented towards wiping out the colonial stamp and did not in any way restructure the contents in tune with the changed social milieu. Women, Muslim and non-Muslim, did not have a say in religious matters during the colonial times. However, 68 years post independence things have changed and women today across communities are becoming vociferous against misogynist traditions introduced/preserved by orthodox religious leaders which suited the patriarchal setup.

The recent tussle between the AIMPLB and BMMA can be seen in this light. It needs to be reiterated that the political victory won by the AIMPLB in the Shah Bano case, whereby it was successful in diluting the Supreme Court’s judgment through political intervention, not just provided it legitimacy as a legal body of the Muslim community, but also the privilege to counter Supreme Court jurisdiction in the garb of religious injunctions which cannot be violated by courts. This has set a bad precedent and privilege which the AIMPLB is not willing to forego.

Whenever a case against triple talaq comes into court the AIMPLB takes it as an intrusion in its legal domain. It pleads that the courts have no jurisdiction to adjudicate over Muslim Personal law since it is inextricably interwoven with the religion of Islam, which is based on Quranic injunctions and is not a law enacted by Parliament. However, what the AIMPLB misses out completely are the legal precedents over the past 15 years, whereby triple talaq has been invalidated by courts time and again. 

The AIMPLB has decided to contest Shayara Bano case and oppose any move to scrap triple talaq. Muslim leaders like the MIM leader and MP from Hyderabad Asaduddin Owaisi have also thrown their weight behind the AIMPLB move saying that the AIMPLB must the hire best lawyers to put up a strong case before the Supreme Court. But what escapes the attention of these self-proclaimed leaders and custodians of the Muslim community are the legal precedents involving triple talaq.

It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The Supreme Court, in a landmark ruling in Shamim Ara v State of UP (2002) invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq and the liability of the husband to pay maintenance to his wife does not come to an end through such communication. The court held that in order to be valid, talaq has to be pronounced as per Quranic injunctions.

In 2002 again, the full bench of the Bombay High Court in Dagdu Pathan v Rahimbi Pathan case held that a Muslim husband cannot repudiate the marriage at will. The Quranic injunctions were invoked during the hearing of this case as well, with the court ruling that all stages – conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings between parties – are required to be proved when the wife disputes the fact of talaq before a competent court. A mere statement in writing or oral disposition before the court regarding talaq sometime in the past is not sufficient to prove the fact of divorce.

The Bombay High Court, in Najmunbee v Sk Sikander Sk Rahman (2004), reiterated this position and held that a Muslim husband cannot repudiate his marriage at will. He has to prove supporting reasons for his decision and it cannot be based on a mere whim. Muslim law mandates pre-divorce reconciliation between parties through the intervention of arbitrators.

In Dilshad Begaum Ahmadkhan Pathan v Ahmadkhan Hanifkhan Pathan (2007) case, the Bombay High Court held that though the husband had proven (in the sessions court) that he had pronounced talaq it was not valid and legal as the additional requirements like, the reasons for divorce, the appointment of arbitrators and conciliation proceedings to bring about reconciliation, had not been proved.

In Riaz Fatima v Mohd Sharif (2007) case, the husband had pleaded that since he had divorced his wife she was not entitled to maintenance. He produced the photocopy of a fatwa obtained by him regarding the validity of the talaq. Rejecting the husband’s contention, the magistrate’s court had awarded maintenance to the wife and child. The Sessions court however overruled this decision and set aside the order of maintenance.

In an appeal, the Delhi High Court laid down clear guidelines regarding the process of proving talaq: (a) divorce must have a reasonable cause and the husband has to provide evidence showing the cause which compelled him to divorce; (b) he has to prove that the word talaq was proclaimed thrice in the presence of a witness or in a letter, (c) he has to prove that an attempt at reconciliation has been made prior to divorce; and (d) there has to be proof of payment of meher and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).

The court, turning down the plea of the husband stated that in the present case there was insufficient evidence to prove that the husband had pronounced talaq on his wife. A mere statement before the court by the husband, stating that he divorced his wife on a particular day, would not suffice. All the prerequisites have to be fulfilled before a Muslim husband can divorce his wife.

If the AIMPLB was oblivious of all the above legal precedents, they should have at least heeded the recent ruling of Bombay High Court in Shakil Ahmad Sheikh v Vahida Shakil Sheikh (2016) case whereby the court reaffirmed that the plea taken by the husband that he had given talaq to his wife at an earlier date does not amount to the dissolution of marriage, unless the talaq is duly proved and was given by following the conditions precedent, namely, arbitration/ reconciliation and valid reasons.

The mere existence of a document like a talaqnama or the utterance of the word talaq thrice would not in any way dissolve the marriage if it is not preceded by arbitration, reconciliation, valid reasons for giving divorce, observance of iddat and payment of mehr, and the same are required to be pleaded and proved before the court.

In the wake of aforementioned observances, it can be safely concluded that the fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB, which claims to be the sovereign body on Muslim Personal Law without having proper knowledge about Quranic injunctions and legal precedents on triple talaq. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue so as to reap political dividends.

It is also a fight against the insidiousness of media which projects every single case of triple talaq as a case of Islamic law vs. secular law, the archaic vs. modern and the oppressive vs. the civilised, while conveniently overlooking the legal precedents against it.

References:
Agnes, F. (2016): “Muslim Women's Rights and Media Coverage”, Economic and Political Weekly, Vol LI No 22, pp. 13-16.
Ali, Arshad (2016): “Triple talaq is a non-issue, brought up to implement uniform civil code: AIMPLB”, The Indian Express.
Anusaya, Ila S. (2016): “Muslim Women Do Not Want Triple Talaq Banned, Says AIMPLB”, The Wire.
Anusaya, Ila S. (2016): “Women’s Rights Activists Rally in Support of Shayara Bano”, The Wire.
Engineer, Asghar A. (2004): “Abolishing Triple Talaq. What next?” Economic and Political Weekly, pp 3093-3094.
Rizvi, A. (2016): “The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents”, The Wire.
Sanyal, A (2016): “Muslim Women Want Triple Talaq Out, 50,000 Sign Petition”, NDTV.
Siddiqui, Parwez I., (2016): “Triple Talaq: Muslim Law Board to contest Shayara Bano case in Supreme Court”, The Times of India.

(The writer is a research scholar at the Central University of Jharkhand, Ranchi).

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