Debating India


Beyond Abolishing Triple Talaq

Asghar Ali Engineer

Saturday 3 July 2004, by ENGINEER*Asghar Ali

Just an abolition by the MPLB, though welcome, would not be enough. There is a crying need for a comprehensive legislation, including regulation of polygamy. Muslim women should not suffer and should get justice.

The Muslim Personal Law Board (MPLB) has taken a bold decision to review the practice of triple talaq at one go in its next meeting on July 4 in Kanpur. The Board undoubtedly deserves congratulations from all those who are committed to women’s rights and had been campaigning for this essential reform. Hundreds of Muslim women have suffered because of this pre-Islamic practice which came back into Hanafi and Shafi’I Islamic law for reasons not to be gone into here.

It is unfortunate that the Sunni Barelvi ulama have threatened to launch an agitation if MPLB approves of the abolition of triple talaq at one go. They maintain that though it is bid’ah (i.e. a sinful form of divorce) nevertheless once pronounced thrice it is valid. They have stated nothing new. It was because of this view by the Hanafis that triple divorce was practiced so long in India though it was abolished in most of the Muslim countries. The Barelvi threat should not deter the members of MPLB from abolition of triple talaq though the Board would like to evolve a consensus on the matter. It would be better if the MPLB persuades the Barelvis to agree.

It would be better if such consensus is worked out as Barelvis are in majority and if they do not agree the abolition of triple talaq by the Board may not be very effective. An overwhelming majority of Muslims in India follow the Barelvi School. Despite the MPLB abolishing it, if someone were to pronounce triple talaq, it will remain valid in the court of law unless it is abolished by law. So it is very important to ensure that it takes the form of legislation to ensure that it cannot be challenged in the court of law.

Thus what MPLB has to do is to prepare a draft and give it to the government to enact. And as pointed out in the previous article on this subject, such a precedent already exists — the Dissolution of Muslim Marriage Act was drafted by the ulama led by Maulana Ashraf Thanvi and others and enacted in 1939. But if such an exercise is undertaken by the MPLB, it has to be quite comprehensive.

There is great need for codification of Muslim Personal Law today. It should be done as early as possible. What is known as Muslim personal law today, it is interesting to note, was known either as Anglo-Mohammedan Law during the British period or simply as Mohammedan Law, enacted by the British. But after independence, the terminology 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 mere change in its terminology was a political act, not a harbinger of social change as in other Muslim countries. To de-colonise its name is not enough, one must de-colonise its content as well. During the colonial period, women were not supposed to play an active role in socio-political matters, at least among Muslims, though there were exceptions like Bi Amma (Mother of Ali Brothers) and many other women who played important role in freedom struggle.

But now 56 years after independence, much water has flown down the Ganges and Muslim women are also in the forefront of many social movements. They are far more conscious today than they were during the colonial period. It is after great deal of efforts that the MPLB has agreed to abolish triple talaq. Very important as this measure is, it is not enough. There is a crying need for a comprehensive legislation to be drafted under the guidance of MPLB by the ulama and Muslim intellectuals and lawyers.

As I have often pointed out, Islamic law is so progressive that it can become the basis for a Uniform Civil Code.

However, conservative Muslim society has dragged the Qur’anic pronouncements to its own level and introduced, through human reasoning, many measures, curbing women’s rights. Despite reforms in other Muslim countries, women have not got the full measure of equality, which the ulama theoretically concede. Iniquitous measures vary from country to country.

In Saudi Arabia, for example, women are not allowed to drive and they are jailed if they drive. In Kuwait, until recently, women were not allowed to vote and had to wage struggle for years before this right was conceded recently. There is debate raging in Saudi Arabia as to why women cannot drive while they can drive in other countries. Obviously issues like driving and voting were not in existence in early Islamic period. It is the ulama in Saudi Arabia and Kuwait who, using their own reasoning prohibited these for women. And now women are waging struggle in these countries against these measures and ulama are opposing it saying it is a ’sin’ for women to drive or vote.

In many other Islamic countries like Indonesia, Malaysia, Pakistan and Iran, women drive and vote without any religious constraint. Qur’an is the only unanimous divine source for Muslims and it remains most progressive in respect of women’s rights. Ideally, it grants equality between man and woman and should be the main source of legislation about women’s rights.

The past interpretations of the Qur’an were constrained by socio-economic conditions and should not be binding on the present and future generations of Muslims. All great Islamic thinkers have repeatedly made this point and have accepted the central role of ijtihad (creative interpretation). It is only our social conservatism, not lack of theological sanction, which prevents our ulama from exercising it.

The attacks on Muslim identity by the Sangh Parivar also have been one of the reasons for resistance to any change. These attacks may continue and demand for Uniform Civil Code persist and find legitimacy if there is no initiative for change. Its attacks may even continue after such initiative. Our initiative for change is not motivated or restrained by these attacks. It should be based on the merit for change. Muslim women should not suffer and should get justice.

My plea with MPLB and concerned Muslim intellectuals is to initiate measures for drafting a comprehensive law duly codified which will embody the Qur’anic spirit. Triple divorce and unregulated polygamy has often been the cause of attacks on otherwise quite progressive Islamic personal law. Polygamy may not be abolished completely but strictly regulated as directed by the Qur’an.

In fact both the verses on polygamy i.e. 4:3 and 4:129 should be read together to understand the real Qur’anic intent. Even the first verse i.e. 4:3 requires rigorous justice to all wives and ends by warning that ’if you cannot do equal justice then marry only one’. The second verse i.e. 4:129 makes it clear that equal justice is humanly impossible and do not leave the first wife in suspension.

With such warnings, polygamy should not be practiced unregulated. All other Muslim countries except Saudi Arabia and Kuwait have introduced strict measures to regulate it. Thus a draft law should introduce such regulatory measures and specify circumstances in which one could take a second wife, as has been done in Pakistan. Those circumstances could be when the first wife is terminally ill, or medically proved to be infertile or barren and that too with the permission of the first wife and the court of law.

Today, though by no means is polygamy widely prevalent among Muslims (it is much more among Tribals, Dalits and upper caste Hindus), still one finds cases of desertion of first wife and marrying another without giving justice to the first wife.

This should not happen and this is strictly prohibited by the Qur’an. The Qur’an permitted polygamy to help women in distress like widows and orphans, not to do injustice to them. It is the duty of the ulama to educate Muslims in this respect.

Thus there is crying need for a new draft law which the MPLB can draft with the help of Muslim lawyers and intellectuals incorporating all these changes and ask the government to enact it. If it is properly drafted I am sure, it will become a model law for others to follow as in Islamic law women enjoy all the rights which modern laws have given to women like widow remarriage, compulsory arbitration before divorce, inheritance, right to property, right to earn and so on. And all these rights are unconditional and a wife also has the right to lay down conditions at the time of marriage.

As such a law may take time since it is not easy to develop a consensus due to sectarian differences, the Board in the meanwhile should launch an awareness campaign against misuse of polygamy etc. It should also see to it that the amount of mahr paid is substantially high (part of which can be deferred) to discourage easy resort to talaq. The Qur’an itself encourages high amount of mahr. And mahr is woman’s own untrammelled right. In case of divorce it can provide her with a measure of economic security. It is regrettable that in some Muslim communities mahr is only nominal and as low as Rs. 41 or Rs. 51.

In all these matters MPLB can play an important role as it has come to be acknowledged an authoritative body and in a sense representative too. Though it is understandable that it cannot rush into things, it can certainly cautiously proceed, further leading the way. If the women suffer after all half the umma suffers and the Qur’an does not admit injustice in any case.


Courtesy, the Centre for Study of Society and Secularism

in Outlook India, Saturday, July 03, 2004.

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