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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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.

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.

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?

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

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

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

In 1990, the husband filed a written statement to claim he had divorced her in 1987 and so she was not entitled to any maintenance. Accepting the husband’s contention that she had already been divorced, the family court, in its judgement in 1993, dismissed the wife’s plea for maintenance.
On her appeal, the high court (Allahabad) held that the communication of talaq stood completed in 1990 with the filing of the written statement by the husband.

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

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

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

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

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The question of Muslim personal law has become not only a question of Muslim identity but also a question with deeper political implications. The Muslim leadership doggedly resists any reform in certain aspects of the law particularly pertaining to marriage and divorce and the Hindu communal leadership would not accept anything short of complete abolition of personal law pertaining to Muslims. As a result the Muslim women face problems and in some cases pretty serious ones.

The Muslim leadership resists any change on the ground that Muslim personal law is divine and no one can tamper with divine law and the Hindu communalists maintain that there should be one law for one country. Both positions are fundamentally flawed. The Muslim personal law is not divine in the sense the Quranic injunctions are. Firstly, Shariah is based on human interpretations of divine injunctions and is an endeavour to understand divine will and it is for this reason that there are several interpretations of Quranic verses and four different schools in Sunni Islam itself – Hanafi, Shafii, Maliki and Hanbali, besides Zahiri and Shiah schools like Ithna Ashari and Ismaili.

These different schools of Shariah law came into existence as a result of different human interpretations and to that extent there is always a scope for new and creative interpretations in keeping with changed circumstances. A noted Islamic scholar and historian Muhammad Mujib who was also vice-chancellor of Jamiah Milliah Islamiah had described shariah as a human approach to the divine will. It is quite an apt description of the evolution of the Shariah laws.

The Shariah law had been quite dynamic even during the Mughal period. The Fatawa Alamgiri, set of fatwas obtained during Aurangzebs period on various questions pertaining to Shariah are far more dynamic and liberal to women than the Muslim personal law enacted by the British.

And, besides new creative interpretations there is tremendous scope for what is called borrowing from another school if one’s own school is creating problem. This practice was followed in Turkey during the Ottoman period in as early as nineteenth century. This method was also followed in drafting the Dissolution of Muslim Marriages Act, 1939. When Muslim women found it problematic to wait for 90 years if their husbands were missing according to the Hanafi School, the ulama, in order to overcome this difficulty, borrowed the rule from the Maliki School which allows the woman to wait only for a period of four years.

According to this [1939] Act, a Muslim woman can obtain decree for dissolution of her marriage on as much as eight grounds including disappearance of her husband for four years, neglect to pay maintenance by her husband for more than two years, if the husband has been sentenced for a period exceeding seven years, or if the husband is found impotent or insane or suffering from virulent venereal disease etc. This enactment immensely benefited many Muslim women who were unable to get relief within the Hanafi law.

It is important to note that the Muslim personal law is a British enactment and is being followed by Indian courts by virtue of this enactment and not because it is divine law. The British rulers had their own agenda and made personal laws totally static by this enactment. The Shariah law had been quite dynamic even during the Mughal period. The Fatawa Alamgiri, set of fatwas obtained during Aurangzebs period on various questions pertaining to Shariah are far more dynamic and liberal to women than the Muslim personal law enacted by the British. Even the provision for maintenance to women is much more progressive and if followed, could have avoided the Shah Bano movement.

The British themselves called the enactment, not shariah law, but significantly called it Anglo-Mohammedan Law which itself is indicative of the fact that it was a secular enactment by a secular government. Also, it must be noted that the British applied the western notion of Justice, equity and good conscience to all personal laws which itself is alien to the concept of Shariah law which Muslims consider as divine. The Shariah law is supposed to be inherently just and there is no question of any external notion of justice, equity and good conscience. This single phrase allowed, says Scout Kugle, a USA scholar, massive invasion of British juristic authority, despite caveat that English law itself was not to be introduced.

A Muslim Qadi was well aware of these differences, conflicting precedents, rulings and deductions and thus ruled in a particular case in the best interest of the victim. However, such benefits were not available to the victim, particularly women in matters of marriage, divorce or maintenance, as after the British enactment of the Anglo-Mohammedan Law, the British judges began to treat law as quite static and went more by the precedents than by consideration of relieving the victims of suffering.

In this connection it is also important to understand that before the British the Shariah law was administered by well qualified Qadis who had properly imbibed the spirit of Islamic laws. They not only used to be thorough scholars of shariah and knew provisions of other schools of law and applied those provisions if justice so demanded. But the British judges, and following them other Indian judges, pronounced judgements in keeping with the letter of the law and followed them mechanically from Hanafi School based on Hedaya, a translation of compilation of Hanafi law by [Charles] Hamilton.

It is also important to note that the Qadis decided the cases by themselves and were not bound to follow their predecessors. However, the British and subsequently Indian judges decided cases on precedence rather than on the merit or situation of the case itself. The decision of one Qadi, in other words, did not bind the other Qadi. They followed the juristic principle of ikhtilaf, i.e., mutual co-existence of differences in interpretation to give benefit to the victim. They always filled the space between legal rhetoric and social reality with interpretation in favour of the sufferer.

As Aziz al-Azmeh points out in his 'Islams and Modernisms' the shariah is a nominal umbrella of a variety of different things and is by no means univocal. The majority of its rulings do not have the finality attributed to them by modern studies. With few exceptions, Islamic law is a body of differences and of general rulings… they (Islamic legal elaborations in addition to governmental statutes) adduce a multiplicity of conflicting precedents, rulings, deductions, all of which are considered equally legitimate.

A Muslim Qadi was well aware of these differences, conflicting precedents, rulings and deductions and thus ruled in a particular case in the best interest of the victim. However, such benefits were not available to the victim, particularly women in matters of marriage, divorce or maintenance, as after the British enactment of the Anglo-Mohammedan Law, the British judges began to treat law as quite static and went more by the precedents than by consideration of relieving the victims of suffering.

The 2nd caliph Umar enforced it in the third year of his reign to combat its misuse by some unscrupulous elements. But in certain schools of Sunni Islam it became a part of shariah because of the rulings given by some noted jurists in its favour and today it is considered a part of divine law which it is not. Triple divorce, it must be noted, is not universally accepted by all schools of Sunni law, let alone Shias and Ismailis.

The Muslim leaders need to understand this today and work sincerely for much needed reforms in Muslim personal law particularly in matters of marriage, divorce and maintenance. They should not treat the enactment by secular government as divine and static. They should also note, as pointed out above, the cases are decided not by the Qadis but by secular judges. The secular judges, as is obvious, cannot follow the spirit of Islamic law but the law as laid down by the enactment. Unfortunately it is commonly believed by the Muslims that the personal law as enacted in India is divine. There is urgent need to remove this misconception and pave the way for necessary reforms within the Islamic framework.

It is also necessary to understand that the Caliphs also issued certain injunctions from time to time known in the shariah terminology as tazir which were necessitated by developing situation and these injunctions too, though not divine, became integral part of Shariah over a period of time. The triple divorce in one sitting, for example, was not practiced during the holy prophet’s time, during the first caliph Hazrat Abubakr’s time, nor during first two years of second caliph Hazrat Umar’s time.

The 2nd caliph Umar enforced it in the third year of his reign to combat its misuse by some unscrupulous elements. But in certain schools of Sunni Islam it became a part of shariah because of the rulings given by some noted jurists in its favour and today it is considered a part of divine law which it is not. Triple divorce, it must be noted, is not universally accepted by all schools of Sunni law, let alone Shias and Ismailis.

The great theologian of 14th century Imam Ibn Taymiyyah decisively rejected it and considered it as against the principles of Islam. He wrote extensively refuting the practice.

Ahl-e-Hadis, among Sunni Muslims also reject it and question its validity. However, it has become an integral part of Muslim personal law in India as most of the Muslims are Hanafis and Hanafi school accepts its validity. There are Shafii Muslims in South, particularly in Tamilnadu and Kerala and Shafii school also permits it. But today this form of divorce is causing suffering to many Muslim women and it needs to be reformed.

The ulama should take initiative as they did in 1939 and got the Dissolution of Muslim Marriage Act. An alim of the stature of Maulana Ashraf Thanvi had then taken the initiative in getting this provision enacted to relieve suffering of many Muslim women who had to wait for inordinately long period according to the Hanafi Law in case their husbands were missing.

Such an initiative is urgently needed today to relieve Muslim women of suffering due to triple divorce too. In fact, the Muslim personal law as it operates today in India needs to be thoroughly overhauled and compiled properly. The British enactment cannot be perpetuated forever under the misconception of divinity. As it results in injustices to women it loses its Islamic character. As far as Islam is concerned justice is the central value. One cannot think of Islamic value-system without justice.
 
No doubt it is a Herculean task to undertake compilation of Muslim personal law and very difficult to evolve consensus but nevertheless it is highly necessary. One will have to borrow provisions from different schools of law to evolve a just compilation. And, as pointed out above, this practice is not alien to Islam. In fact it was resorted to from time to time to serve the ends of justice and give benefit of provisions of other schools to the suffering women. The precedent of Dissolution of Muslim Marriage Act, 1939 is also there to follow.

Unfortunately the ulama, particularly the Muslim Personal Law Board has adopted a very rigid stance on the question of reform. Their usual argument is that it will open floodgates of change and interference from government. This is not a sound logic in any case. Justice is far more important than imaginary fear. The ulama took initiative in 1939 and it did not open floodgates of reform or interference. It did, on the other hand, immense good to hundreds of suffering Muslim women. No law can remain static over a long period of time without causing suffering to those for whom it is meant.

If the Quranic provisions of marriage and divorce are enforced it would do immense good to Muslim women. The Quran neither permits easy divorce nor unrestricted polygamy. It is true these verses pertaining to marriage and divorce have been differently interpreted. The ulama will have to evolve a consensus around the interpretations best suited to the rights of women. Many Muslim countries have done it already and just because Muslims are in minority in India the ulama should not deter the process of reform and change within the Islamic framework. They should remember that Muslim women are also a minority within Muslim minority and they also need justice.

(This article by the late Islamic scholar Asghar Ali Engineer was first published in November 1999 by the group, Women Living Under Muslim Laws (WLUML).
 

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About: Women Living Under Muslim Laws (WLUML) is an international solidarity network that provides information, support and a collective space for women whose lives are shaped, conditioned or governed by laws and customs said to derive from Islam.

For more than two decades WLUML has linked individual women and organisations. It now extends to more than 70 countries ranging from South Africa to Uzbekistan, Senegal to Indonesia and Brazil to France. It links:

• women living in countries or states where Islam is the state religion, secular states with Muslim majorities as well as those from Muslim communities governed by minority religious laws;
• women in secular states where political groups are demanding religious laws;
• women in migrant Muslim communities in Europe, the Americas, and around the world;
• non-Muslim women who may have Muslim laws applied to them directly or through their children;
• women born into Muslim communities/families who are automatically categorized as Muslim but may not define themselves as such, either because they are not believers or because they choose not to identify themselves in religious terms, preferring to prioritise other aspects of their identity such as political ideology, profession, sexual orientation or others.

Our name challenges the myth of one, homogenous ‘Muslim world’. This deliberately created myth fails to reflect that: a) laws said to be Muslim vary from one context to another and, b) the laws that determine our lives are from diverse sources: religious, customary, colonial and secular. We are governed simultaneously by many different laws: laws recognised by the state (codified and un-codified) and informal laws such as customary practices which vary according to the cultural, social and political context.

Aims and focus: The network aims to strengthen women’s individual and collective struggles for equality and their rights, especially in Muslim contexts. It achieves this by:

• Breaking the isolation in which women wage their struggles by creating and reinforcing linkages between women within Muslim countries and communities, and with global feminist and progressive groups;
•  Sharing information and analysis that helps demystify the diverse sources of control over women’s lives, and the strategies and experiences of challenging all means of control.

WLUML’s current focus is on the critical issues identified as our priorities for collective analysis and action:

• Peace-Building and Resisting the Impact of Militarisation
• Preserving Multiple Identities and Exposing Fundamentalisms
• Widening Debate about Women’s Bodily Autonomy
• Promoting and Protecting Women’s Equality Under Laws

As a theme, violence against women cuts across all of WLUML’s projects and activities.

Contact: wluml@wluml.org

Website: www.wluml.org/
 
 
 
 

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