When a people and their leadership become iniquitous (Zalim), Allah tests them with a case that exposes the extreme degree of their depravity, before visiting His wrath on them. The Shah Bano case was just such a case. This is a case of a 62-year-old woman, who bore her husband 5 children during their first 14 years of married life, then put up living with her husband’s second wife for the next 32 years, only to be divorced and cast aside at age 62. She had to seek the intervention of the courts to get a paltry maintenance from her husband. The lower court ordered Rs 25 per month to be paid, and the High Court revised the amount to Rs 179 and a few Paise as her maintenance in 1978. The husband, a well to do lawyer, chose to challenge the HC verdict. Being a lawyer, he could afford to drag this hapless 62-year-old divorced woman to the SC, when he should have paid with grace, a much higher amount in accordance with his means, without the intervention of the courts.
Treatment of Divorced Women
The relevant verse from the Quran is:
(2:241) for divorced women Maintenance (should be provided) on a reasonable (scale) This is a duty on the righteous.
The Quran, in its wisdom, has kept the above verse open ended. What is maintenance on a reasonable scale is left to be decided by the society in which one lives and by what is customary in that society and on the merits of the case. In the case of a 62-year-old woman, who has crossed her menopause and no longer marriageable, nor able to work, what is reasonable is not a onetime settlement of the princely sum of Rs5400 as contended by her former husband, but a monthly maintenance. It is difficult to imagine, that a man of means, would grudge paying the paltry amount of less than Rs 180 a month to a woman who had lived as his wife for 46 of the best years of her life! What is expected of any good human being is that he settles an amount that is generous and acceptable to his wife without making her run around the courts seeking justice. A just person is expected to even pay for the maintenance of a servant who is old and no longer able to work if that person has served for a long period. The SC dismissed the appeal and upheld the HC order.
The SC judgment became a raging controversy. There were protests from many sections of Muslims against what they were led to believe, was an attack on their religion and their right to their own religious personal laws. Their spokesmen were Sunni Barelvi leader Obaidullah Khan Azmi and Syed Kazi. At the forefront was All India Muslim Personal Law Board, an organization formed in 1973.The Shariat courts should have helped the woman to get justice or helped her in the case against her husband. The AIMPLB however supported the husband in the case on grounds that he was right according to the Shariat law. Iniquity by an individual was made worse by iniquity by the Islamic Institutions and support of the masses.
Surah At-Talaq
(65:7) Let the man of means spend according to his means: and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him. After a difficulty, Allah will soon grant relief.
(8) How many populations that insolently opposed the Command of their Lord and of His messengers, did We not then call to account,- to severe account?- and We imposed on them an exemplary Punishment.
(9) Then did they taste the evil result of their conduct, and the End of their conduct was Perdition.
(10) Allah has prepared for them a severe Punishment (in the Hereafter). Therefore fear Allah, O ye men of understanding – who have believed!- for Allah hath indeed sent down to you a Message,-
The Punishment of Allah on the Iniquitous
Rajiv Gandhi, with an eye on the coming elections, tried to gain political capital from the situation and issued an ordinance “The Muslim Women (Protection of Rights on Divorce) Act, 1986”, to please the unjust Muslims and their unjust leaders making the cup of injustice to overflow. There was the expected howl of protest from the Hindu right, and to appease them, Rajeev Gandhi ordered the reopening of the Babri Masjid gates for worship by the Hindus.
The rest is history. Without this gross injustice to Shah Bano by the entire Muslim population and their leaders, the history may have been entirely different. The politics of appeasement gave rise to the politics of polarization that lead to the demolition of Babri Masjid, riots and further polarization and a situation today, when the Muslim vote has ceased to make a difference because the Hindus have become completely polarized giving rise to the politics of majoritarianism.
The Muslim Women (Protection of Rights on Divorce) Act, 1986 which was ostensibly meant to reverse the SC verdict achieved little as is clear from later judgments such as Shamima Farooqui versus Shahid Khan case. The Act proved to be in fructuous because it was based on the premise that the SC had meddled with the Shariat law and the SC showed that it had not meddled with the Shariat law in the Quran but had in fact based its verdict on the clear wording of the Quran in verse 2:241.
The Triple Talaq Case
The case has shown that the AIMPLB and the Ulema have not learnt any lesson from the Shah Bano case. The practice of TT is admitted being a Bidat or innovation and against the Shariat of the Quran and distasteful and yet our Ulema are not ready to ban it on their own although Muslim women and their organizations have been demanding it. Are they waiting for some more of Allah’s wrath to be visited on the Muslims? Do they not see the writing on the wall that unless they change and reform to render justice to their own women, they will be wiped out? It is a shame that this matter had to go to the courts for adjudication and the AIMPLB could not settle the issue through discussions and negotiations with the All India Women’s Personal Law Board (AIWPLB) and the Bharatiya Muslim Mahila Andolan (BMMA). They would do well to at least now work with them on the model Nikahnama to be used for all Muslim marriages. The default clause should include the contract of a monogamous marriage. This does not amount to banning polygamy as the parties can agree to delete or change the default clause or the wife could permit at a later date a second marriage.
The AIMPLB and the seminaries must do all that they can to make the ban on Triple Talaq effective by issuing Fatwas, to the effect that divorce is necessarily a two stage process separated by a four month period of Iddat and saying Talaq any number of times is immaterial. The Iddat period must be spent in the husband’s house during which the couple can choose to reconcile. They should declare that the past practice was an aberration and not in accordance with the Quran.
The Way Forward On Other Issues
The way forward is obvious. The SC judgment in the Shah Bano case and now in the TT case has demonstrated that the understanding of the Ulema as to what constitutes the Shariat is open to being contested in a court of law by any Muslim citizen whose rights are violated. The Muslims have a Book, the Quran, which by its own claim, contains the “perfected Deen” or religion or way of life made clear beyond doubt. The single meaning of each of its “Muhkamat” verses or verses containing its commands and injunctions can be logically derived as shown in several of my articles. Based as it is on a Clear Book, any contravention of its explicit commands, injunctions and guidance on the plea of past practice and rulings can be set aside. The meaning of freedom to practice his religion to a Muslim citizen is also the right to be judged by the Quran and rendered justice according to the Quran in all personal matters. It cannot mean freedom for any institution or seminary to practice injustice on any section of the Muslims by dictating what the religion means even though such meaning contradicts the Quran.
The Muslim Institutions, the seminaries and the Ulema may therefore take notice that unless they initiate necessary reforms and become responsive to all sections of the society, they are in danger of being swept aside and overruled by the courts. The erosion in their credibility will erode the people’s faith in the religion itself. They should not become instrumental in destroying the religion. Islamic theology has become parochial and paternalistic and it is time to do a clean-up act in the light of the Quran. The people are waking up. The Ulema need to wake up faster.
The students attending the madrasas have a fundamental right to be taught the Universal Message of the Quran and not the parochial and bigoted version that its theology has become. The government and the courts have the right as well as a duty to instruct them to correct their curriculum and content for conformance with the clear message of the Quran in which a Muslim is any person who submits to God (by any name) and does good deeds. A Kafir is not a non-Muslim but a rebel against God and an oppressor irrespective of the faith he professes even if that faith is Islam. The religion of Islam permits fighting only against oppression and not against disbelief and it is a religion in which the freedom of conscience to practice any religion is absolute and without any restraints. What is being taught is quite the reverse and against the clear, single, logically derived meaning of the Quran which can be easily demonstrated as I have done in my articles. In the interests of the Muslims themselves and of the country, we need Madrasa students to be broad-minded without in any way compromising on their religion according to the Quran.
This is an opportunity to become good Muslims as per the Quran where a Muslim is a person who can be trusted and who causes no harm to anyone and is never unjust. We need to clean up our theology of the accumulated Kufr from 1400 years of practicing bigotry, parochialism and misogyny in various degrees. We must save our children from the ill-effects of our mistakes and clear deviations from the true message of the Quran, so that their lives may become blessed and not accursed.
Naseer Ahmed is an Engineering graduate from IIT Kanpur and is an independent IT consultant after having served in both the Public and Private sector in responsible positions for over three decades. He is a frequent contributor to www.NewAgeIslam.com