Debating India


Amend, Amend, Amend!

Monday 19 July 2004, by ANAND*S., ROY*Saumya , WADHWA*Soma

The orthodoxy concedes that triple talaq is an ill, but still fights shy of tackling it

Status: For the first time ever, the All India Muslim Personal Law Board, after meeting in Kanpur last week, declared that the practice of triple talaq is a "social ill".

Status Quo: The board made it clear that there can be no ban on the practice of triple talaq.

So, is the All India Muslim Personal Law Board changing its attitude towards the deplorable practice of triple talaq or not? Here’s what happened, or didn’t happen. Triple talaq (Muslim men utter ’talaq’ three times in a single instance to summarily annul their marriages) was not on the board’s discussion agenda for its working committee meeting on July 4. But some members, reportedly, did "express concern" over the issue during the meeting. This, "with the committee categorically refusing to discuss triple talaq officially". When prodded by the media after the meeting, the board’s general-secretary, Syed Nizamuddin, made this statement: "We cannot ban the practice of triple talaq, but we can discourage it."

Afterwards, sundry board members went public, chalking out possible strategies to ensure such "discouragement": addressing men after the Friday prayers on the issue, or highlighting the rights and obligations of husband and wife, and so on. Till the board decided to send out an official-and final-word on the subject: "The executive meeting on July 4 decided to launch an intensive campaign, appealing and persuading the community to follow the rules of the Shariat in matters of marriage and termination of marriage by talaq, rights and obligation of husband and wife and inheritance."

This was a far cry from the original promise of a draft model nikahnama, a promise now deferred to the board’s November meet in Kozhikode. Women’s groups and activists in the community who have been lobbying tirelessly for a ban on triple talaq for years now are obviously disappointed. "The board has little concern for women and their rights," regrets Hasina Khan of Awaz-e-Niswan, a Mumbai-based support group for Muslim women. "ngos and civil society have very little dialogue with them, and there are very few women on the board anyway." Agrees Nazneen Barkath, president of the Madurai-based All India Progressive Muslim Conference, "It is, of course, necessary to get rid of the un-Islamic practice of triple talaq, but the long-term battle must be for women’s participation in the affairs of the jamaat (community). Unless Muslim women get a due share in the administration of mosques, women’s issues will only be decided by men." A fact that Lucknow-based Naseem Iqtidar Ali, the lone woman in AIMPLB’s 41-member-strong executive committee, knows through experience. Her demand that Muslim women be granted the right to divorce their husbands (tafviz-e-talaq) was ignored outright at the Kanpur meeting. "The board just has to make it mandatory that a clause giving wives the right to divorce is inserted in all nikahnamas. Today, talaq can be so unfair to women," she says.

Muslim marriages are contracts between men and women, with men allowed to make this contract with up to four women, and divorce being a termination of the contract. However, the contract is skewed in favour of the husband. He has the right to unilateral talaq without judicial intervention or registration of divorce; but the wife has a right to khulla or divorce only with her husband’s consent (in India) and stands to lose her mehr (dower) if she opts for it. Different schools of Muslim law prescribe that talaq should be pronounced either in the presence of the wife, addressed to her, or in her absence; it can be pronounced three times in a single sitting, in between menstrual cycles, with or without sexual abstinence, in three full sentences, or one complete sentence; and in degrees of revocability.

While the orthodoxy’s strongest argument against abolishing the practice of triple talaq in one sitting has always been that it is based on the Shariat or the Divine Laws, liberals push for a more contemporary understanding of the genesis of these Divine Laws. The original message in the Quran was in its intent and design both radical and humanitarian. The corpus of rules articulated centuries after the death of Prophet Mohammad by the Muslim establishment in the light of the dominant patriarchal ethos of the emerging society were incorporated as the Shariat. Liberals point out that rules characterised by the ulemas as Sharia, even though entirely the creation of a human agency, became vested with the sanctity of being either revealed or divine. Plus, in India, the Anglo-Mohammedan law evolved by the colonial courts in their effort to apply the laws of the Quran (in cases where the parties were Muslims) also began to be construed as a part of the Shariat. These laws, the handiwork of those who were not even nominally Muslims, were justified through the legal fiction that the courts were not interpreting the Shariat but merely applying it.

But even traditionalists who might have differences with this understanding of the Shariat admit that triple talaq in one sitting, however valid, is bidat (a sinful form of divorce). "When the Prophet heard that a man had divorced his wife by uttering talaq three times, he shivered with rage, and even the Caliph Omar is said to have punished men who practised this form of reckless divorce," says Akhtarul Wasey, director of the Delhi-based Zakir Husain Institute of Islamic Studies. Adds Suleman Siddiqi, head of the department of Islamic Studies in Hyderabad’s Osmania University, "The board, the ulemas and the maulvis should now get around to telling people that talaq-e-ahsan is the Quranic form of divorce most preferred by the Prophet." This requires pronouncing talaq once in the presence of four people, two from each side, and a time gap between the three utterances of talaq as directed by the Quran. "This form of divorce allows for a three-month period when reconciliation can be attempted. It’s humane and reasonable," says Wasey.

Many progressives argue that it’s less about overwriting the Shariat and more about protecting patriarchy that has kept the board from coming down harshly on those who use triple talaq. "If the AIMPLB wants to stop the practice, they can, but they don’t want to," says Maulana Mukhtar Naqvi, who had earlier left the board on this very issue. "And even if the board wanted to change, the extreme elements in the community will not let it," says Hasan Kamal of the Muslims for Secular Democracy. "Only this new activism within the community is forcing the board to act." Uzma Naheed of a Mumbai-based women’s group, Ansala Foundation, insists that Islamic jurisprudence open itself to women’s perspectives. "Many things need a relook. What weren’t issues 10 years ago are issues now," she says.

Because in interpreting the Quran as it does, the orthodoxy decontextualises the original message, disregards its historical compulsions, and ignores the patriarchal backdrop of its times. The post-liberal concept of gender equality has to be dealt with, the needs of modern women have to be met by going back to tradition and looking for sources which can enable a cementing of the gap between what was literally stated then and the demands of today’s world.

The Prophet’s own life and preachings were radically forward-looking and gender-just for his times, point out women. He married Fatija, a widow much older than him, and urged that others do the same. In times when men married numerous women as a norm, he allowed no more than four wives to a man and that too only if all could be loved, cherished and nurtured equally.He provided for the remarriage of women deserted and rejected by their husbands.

But then, the AIMPLB knows this. If only it could bring itself to act on it.

Soma Wadhwa with Saumya Roy and S. Anand


in Outlook India, Monday, July 19, 2004.

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