The thorny issue of triple talaq

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New Delhi: On 20 November, some 200,000 people crammed into Kolkata’s Park Circus maidan. Some slumped against the bamboo grills, while others slouched on the ground in the front rows in the packed-to-capacity venue. An aerial view published in the media showed a tightly packed cluster of white skull caps and some, mostly black and white, headscarves. On the podium was a congregation of bearded men in white robes and turbans. One of them stood at the lectern, addressing the crowd. “We don’t need suggestions from the government or courts on what we should do with our laws. It is our business. Let us deal with it,” he roared.

The gathering was much like a political rally. For those who could not be accommodated at the venue, giant screens were put up in different parts of the city. This was the 25th All India Muslim Personal Law Board (AIMPLB) conference—a three-day event, and the biggest gathering of the Board in 2016.

The conference came at a time when the Supreme Court was hearing a lawsuit seeking a ban on three specific practices permitted under Muslim Personal Law: triple talaq, polygamy and nikah halala.

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The triple talaq practice allows a Muslim man to divorce his wife by saying the word ‘talaq’ (divorce) three times. Under nikah halala, a woman wishing to wed a man from whom she is divorced must first marry someone else.

The AIMPLB has been criticized by women’s rights activists, the judiciary and the government over its determination to oppose the ban being sought. A wary AIMPLB and Muslim scholars see the demand for banning triple talaq as a first step towards paving the way for a uniform civil code.

“Whenever the demand for a uniform civil code is raised, it is in context of something related to Muslims, and that is why Muslims think it will affect them alone, even though we know it will affect many Indians,” says Zafar-ul-Islam, editor of the New Delhi-based newspaper, Milli Gazette.

“We oppose uniform civil code because it will take away all the religious freedom that the Constitution has given us. We follow the criminal laws as per the Constitution, at least we should have the right to live our personal lives based on our religious teachings,” he adds.

The conference in November had a note of urgency never perhaps seen before. At the end of the event, in which more than 75 women delegates and 50 women members were said to have participated, the Board unanimously decided that triple talaq would stay.

“Whenever the demand for a uniform civil code is raised, Muslims think it will affect them alone, even though we know it will affect many Indians”- Zafar-ul-Islam, editor, ‘Milli Gazette’

But there were some concessions. The conference concluded with a decision to launch a AIMPLB women’s wing. Of the Board’s 251 members, 40 are women, nine of them on the executive committee. So the decision to have a separate women’s wing is not to show the world that the Board suddenly cares for women or has succumbed to pressure, says Asma Zehra, executive member of AIMPLB, who also heads the women’s wing. Instead, Zehra says, the move aims to spread awareness among women about the rights that Islam has given to them.

On 1 December, the Board launched its first helpline for women. On the day of its launch, the helpline received 3,500 calls. Every day, Zehra says, the helpline receives between 1,200 and 1,500 calls, mostly around the issues of dowry, inheritance, domestic violence and talaq. The helpline is available in nine languages; most calls are in Urdu, Malayalam, Kannada and Tamil.

“The helpline is meant to bridge the gap between women and AIMPLB,” Zehra says.

The emphasis on bridging the gap stems out of sustained criticism of the Board for being a male preserve that is out of touch with the ground reality of the lives of common Muslim women in the country.

In response to a March 2015 survey by the Bharatiya Muslim Mahila Andolan (BMMA), in which 97% of women respondents said they were opposed to triple talaq, polygamy and nikah halala, the AIMPLB introduced its own signature campaign to gauge if Muslims wanted amendments to the Shariah. It says this signature campaign showed that an overwhelming majority of Muslim women do not want any change in the Shariah.

The Board is contemplating suggesting a jail term (which would involve government legislation and the judiciary) or imposing a fine or ostracism for those who use triple talaq without “genuine reasons”.

“Those who are misusing triple talaq should be punished,” says Jamiat Ulema-e-Hind general secretary Maulana Mehmood Madani. Yet, he adds, the rights of women are not being compromised because of the existence of triple talaq.

“Triple talaq is an option for those who don’t want to wait for three months. If you pick the cases of how the provision is being abused, then you should also see cases where it has helped women. I am sure everyone knows how divorce cases are pending in courts for years and years,” he says.

Other than triple talaq, options for divorce in Islamic law give a period of three months for parties to reconcile. The pronouncing of talaq is spread over three months, instead of being uttered in one go.

Most AIMPLB members this reporter spoke with say they are against the misuse of triple talaq. In fact, they say, the word ‘talaq’ itself is considered bad in Islam, with the Quran as well as the Hadith (the sayings of the Prophet and practices from his daily life) referring to incidents that show how the religion views divorce in poor light even though the option is available.

“Islam has given divorce as the last option only if nothing else works out and there is no way the marriage can survive…but it is not the preferred route,” says Mufti Fuzailur Rahman Hilal Usmani of the Darussalam Islamic Centre, Punjab.

The Quran in multiple instances forbids a man from seeking pretexts to divorce his wife, but Islamic law nevertheless gives men the primary right to dissolve marriages. However, in the absence of serious reasons, no man can justify a divorce, according to the Quran and the Hadith.

The word ‘talaq’ itself is considered bad in Islam, with the Quran as well as the Hadith referring to incidents that show how the religion views divorce in poor light even though the option is available

“When a man marries, he takes the responsibility of the woman and children. At no point can a man say I can’t take care of them. He is obligated to. A woman can contribute but she is not obligated to,” explains S. Jalaluddin Umari, vice president, AIMPLB. “Her money is her money alone. Even if she is earning, the money is for her. The meaning of talaq is that the man who had taken the responsibility says he will not take it anymore. If a woman legally takes up these responsibilities, she can also give talaq. The problem is with those interpreting religion, not the religion.”

One of the reasons the Muslim clergy are adamant they will not allow any interference with their religion is that they believe issues are being cherry-picked. They say there are many instances where laws of the land are misused; the solution is not to overturn the law, but to introduce social reform.

“Triple talaq might be anti human rights, it might be anti women and children’s rights, but please don’t tell us it is unconstitutional. When the case of Jain religious practice of a ritualistic fast unto death came before the apex court, what did the court do? It allowed the practice to continue, affirming the fundamental rights of Jains to practise their religion without any judicial intervention. How come they can interfere when it comes to us?” asks Mufti Zahid Ali Khan, associate professor in the department of Sunni theology at Aligarh Muslim University.

“Islam has given divorce as the last option only if nothing else works out and there is no way the marriage can survive…but it is not the preferred route”- Mufti Fuzailur Rahman Hilal Usmani, Darussalam Islamic Centre, Punjab

Ironically, the issue of gender equality for Muslim women drew the Supreme Court’s attention on 16 October 2015, when a bench comprising Justices Anil R. Dave and A.K. Goel was hearing the case of a Hindu woman seeking inheritance rights (Prakash & Ors. Vs Phulavati & Ors). The bench directed the registration of a suo motu public interest litigation (PIL) titled ‘Muslim women’s quest for equality’.

The affidavit in the Phulavati case, which did not mention Muslim women for most part, suddenly talked about their rights. Subsequently, a number of Muslim women filed a slew of petitions in the Supreme Court challenging the personal laws governing their community. The gist of all these disparate petitions was a demand for a ban on triple talaq, polygamy and nikah halala.

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Shayara Bano, a 38-year-old woman from Uttarakhand, was the first petitioner to approach the Supreme Court in February 2016 to seek a ban on triple talaq.

“Look at Shayara Bano’s case. Her husband thrashed her, asked for dowry, got her to abort seven times. Under the Indian law, she had sufficient evidence under which the husband could have been immediately arrested. But somehow the focus was solely on triple talaq. There was no mention of halala or polygamy in her case. Slowly that, along with uniform civil code, was included subsequently,” says Kamaal Farouqi, former chairman of the Delhi Minorities Commission and a member of AIMPLB.

There is a belief among the clergy that the issue of amending Muslim Personal Law is getting so much attention only because of the views of the current government, which openly advocates a Uniform Civil Code and even mentioned this in its manifesto.

Shayara Bano, a 38-year-old woman from Uttarakhand, was the first petitioner to approach the Supreme Court in February 2016 to seek a ban on triple talaq

But Zakia Soman, a founding member of Bharatiya Muslim Mahila Andolan, says it is convenient for AIMPLB to call the petition a conspiracy. “Of course AIMPLB would like the status quo to continue. There is legal discrimination against Muslim women because of their (the clergy) resistance to reform,” she says. “However, regardless of which government is in power, there is a Constitutional obligation to guarantee gender justice.”

But the Constitution allows religions to follow their own personal laws in matters of marriage, divorce, inheritance and adoption. Unlike Hindu personal laws that underwent a series of reforms in the mid-1950s despite the stiff resistance from the Hindu right, Muslim Personal Law has not seen such changes.

“Muslim laws are based on the Quran. It is the word of God for us. How can you change the word of God when even the Prophet couldn’t change it?” asks Zehra. “If everyone is so concerned about Muslim women, why take an issue which affects only a few women and not what is the real matter of concern for most—their education? More importantly, if this fight is for the rights of women, why can’t we be concerned about issues like illiteracy and poverty, which are uniform across religions?”

There is a belief among the clergy that the issue of amending Muslim Personal Law is getting so much attention only because of the views of the current govt, which openly advocates a uniform civil code

The clergy believe that one community is being targeted. The rights of women in Islam are being ignored while criticism has focused inordinately on triple talaq and polygamy.

Zahir I. Kazi, a senate member of Mumbai University and an AIMPLB member, says, “Why can’t they highlight the matters that should be highlighted? The Prophet’s wife (Khadeeja) was a widowed businesswoman, 15 years older than him, while his youngest wife Ayesha led a contingent to battle. Why can’t people talk about our inheritance laws, or the status of girl child in Islam?”

These ‘proofs’ of Islam, he says, which are inherently just to women, are “conveniently ignored”, as if other religions give the highest position to women and practices like polygamy don’t happen elsewhere.

As per Census 2011, Muslims do not have the highest share of divorced women among all religious groups in the country. While Muslims have a higher share of divorced women than Hindus and the all-India average, Christians and Buddhists have a much higher share of divorced women in their population. For every 100 married Muslim men, there are 104.30 married women, which is a little less than Christians (100 men: 104.7 women) but marginally more than Hindus (100: 101.9).

“Muslim laws are based on the Quran. It is the word of God for us. How can you change the word of God when even the Prophet couldn’t change it?”- Asma Zehra, All India Muslim Personal Law Board

As the AIMPLB looks for solutions to the triple talaq controversy, Uzma Naheed, a member of the Board, says discussions around the practice are not new to the organization. In fact, it was in 1994 that she first raised the issue with the Board, which was followed by the release of a nikahnama which gave women a provision to set conditions for the husband that could safeguard her rights, at the time of the nikaah.

Much as the BMMA would welcome the decision to involve the top court and Parliament to punish those who misuse triple talaq, its doesn’t stop at punishment, Zakia Soman says. “What we want is not just abolishing triple talaq. There are other accompanying issues. We want to make divorce through triple talaq invalid…we want a proper procedure for divorce for Muslim women which is on a par with the other religions,” says Soman.

As the apex court examines the constitutional validity of triple talaq, some Muslims say they feel cheated. “Indian Muslims have chosen India. We aren’t here by chance but by choice. We have sacrificed our criminal laws. Those were made common and we believe that was right, but we can’t compromise on our personal laws as well now,” says Madani.

The role of Bharatiya Muslim Mahila Andolan

Formed in 2007, the Bharatiya Muslim Mahila Andolan (BMMA) has started a debate on reforming the Muslim Personal Law, which governs matters such as marriage and divorce. The BMMA claims that the All India Muslim Personal Law Board and the clergy have misinterpreted the Quran by allowing practices such as triple talaq, polygamy and nikah halala (under which a woman who wishes to remarry her former husband must first consummate a nikah with another man). It has filed a case in the Supreme Court asking for a ban on triple talaq, polygamy and nikah halala. The BMMA says instant oral triple talaq must end and that the Quranic procedure of divorce in three months, with prior efforts of reconciliation, should be strictly followed.

Nikaahnama reforms

In 1994, AIMPLB came out with the prototype of a conditional nikaahnama (marriage contract), which was released in 2005. Unlike the nikaahnama prepared by individual Muslims to be used at the time of their marriage, these nikaahnamas are prepared by a group of 12—including lawyers, social workers, muftis and the individuals getting married. These nikaahnamas give the woman the right to place conditions on the man before marriage.