India: Up ahead, bigger battles loom over polygamy, personal laws | Swapan Dasgupta

(The Times of India, August 27, 2017)

Swapan Dasgupta in Right & Wrong | India | TOI

The Supreme Court’s majority verdict against the legality of triple talaq has largely been welcomed by both the government and the more articulate sections of public opinion. Even those in the Muslim community that have misgivings over judicial interference in faith-based community practices appear to have chosen the path of tactical retreat in the belief that there are bigger battles to be fought over polygamy and the principle of separate personal laws. Certainly, the different judgments have ignited a hitherto lazy debate over reforms of Muslim personal laws, and for a civil code that goes beyond faith and custom and is applicable to all Indians.

The significance of the abolition of triple talaq shouldn’t be underestimated. The Supreme Court has heralded the first major modification of Muslim personal laws in 80 years. Nearly 30 years ago, a similar attempt to grant maintenance to divorced Muslim women had faltered because the Rajiv Gandhi government, despite enjoying a brute parliamentary majority, lacked the moral backbone to stand up to sectarian pressure. The Shah Bano saga is, however, unlikely to be repeated now. On the contrary, the end of triple talaq may energise attempts to enlarge the scope of gender justice through either legislation or judicial pronouncements.

India’s socio-political landscape has changed dramatically since 1987-88. First, and very reassuringly, the outlawing of triple talaq has been endorsed by a significant section of Muslim women, particularly from the middle classes. Unlike the past when it was left to the likes of Arif Mohammad Khan to fight a lonely battle, the past decade has witnessed an increasing number of Muslim women willing to speak out against gender injustice. A section of India’s population that had remained invisible in the past are now partially visible. On its part, the women’s movement has shed earlier inhibitions about not speaking out on injustices in ‘minority’ communities.

Secondly, and arguably for the first time since Independence, India has a government at the Centre that is not even remotely susceptible to political blackmail by the clerical orthodoxy. It is significant that apart from Mamata Banerjee and Lalu Yadav, most of the other mainstream ‘secular’ leaders were compelled to welcome the Supreme Court judgment. This, despite their stated position that personal law reform must flow from within the concerned community and not be imposed from above.

A desire to prevent Prime Minister Narendra Modi — who spoke about the regressive consequences of persisting with triple talaq in his Independence Day address — from running away with the credit and acquiring the mantle of social reformer, was a clear factor. Equally, there was the realisation that ‘minorityism’ now carries diminishing political returns. Three decades ago, Rajiv Gandhi was intimidated by the threat of a Muslim revolt against the award of a paltry alimony to an abandoned woman. Modi has no such fears. In Assam and Uttar Pradesh, the BJP demonstrated it is possible to override the sectarian veto through countervailing mobilisation. Paradoxically, the much decried ‘polarising’ approach attributed to Modi and Amit Shah has become the guarantor of the irreversibility of the triple talaq judgment. India’s liberal politics may have its charms but it has invariably succumbed to pressure from the ghettoes.

The real reason why scrapping triple talaq has drawn relatively less flak is because it was an apex court judgment. Had the court directed the government to sanctify the judgment with parliamentary legislation — the minority view of Chief Justice Khehar — the whole business would have become extremely cluttered. The very same parties that welcomed the apex court judgment would have developed second thoughts and been subjected to sustained pressure from Muslim orthodoxy. No doubt the BJP would have loved a battle that would have exposed the existential dilemmas of the ‘secular’ parties — Mamata at least is being honest in her espousal of old-fashioned vote bank politics — but the clash could well have been bitter and ugly, and even have spilled over to the streets.

By being clear in its verdict the judiciary has averted this tension. At the same time it has further increased India’s dependence on judge-made laws, a phenomenon that, in effect, undermines the supremacy of Parliament. It will be interesting to see if Modi’s New India can reclaim the turf in a future battle over polygamy.

In the meantime, India can reflect over why it took seven decades to undo a glaring injustice to Muslim women. And why in the end it was so remarkably easy. As Roosevelt famously said: “The only thing we have to fear is fear itself.”

India's Supreme Cout Strikes Down Triple Talaq, But Does Little for Gender Justice | Indira Jaising

The Quint

SC Strikes Down Triple Talaq, But Does Little for Gender Justice

Indira Jaising

 

Updated: 22 August, 2017

The long wait for the triple talaq judgment has ended today in court. It is difficult to say what the ratio of the judgment is. Two judges have said the practice of triple talaq is protected by Article 25 and therefore Constitutional.
Two have said that it is unconstitutional as it violates Article 14 and is manifestly arbitrary, and one has said that it is un-Islamic and, therefore, illegal. Hence, one can say that the practice of triple talaq is now illegal in this country. For this reason alone, the majority judgment of three judges is welcome.

Legal Scrutiny

Two Judges, Justice R Nariman and Justice UU Lalit, have come to the conclusion that triple talaq is now part of statutory law and it is therefore subject to the discipline of Fundamental Rights.

It is not protected by the right to freedom of religion. This is the most important advance made in the Judgement.

For the first time, a law governing family matters has been subjected to the discipline of the Constitution.

The critical issue was whether the right to freedom of religion is attracted to the case at all. Two of the judges said:

We have already seen that though permissible in Hanafi jurisprudence, that very jurisprudence castigates triple talaq as being sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1).

Religion vs Family Law

The other two, Chief Justice Kehar and Justice Nazeer, have come to the opposite conclusion.

We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi School. It constitutes a matter of their faith. They have practiced it for at least 1,400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of personal law, has been protected by Article 25 of the Constitution.

This proposition raises serious issues for secularism in the country. It fails to distinguish between the legitimate domain of religion and family law. The Chief Justice goes on to say:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice, which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endeavours to protect and preserve the beliefs of each of the separate entities, under Article 25.”

While religious consciousness does bind people together , this does not answer the question of what if this consciousness violates  equality for women ? Are all matters of faith protected by the right to freedom of religion? What if tomorrow, it is argued that witchcraft is part of faith and must be protected by the right to freedom of religion?

What would the court say about the argument that some believe and it is a matter of faith, that Ram was born in Ayodhya at the site of the Babri Masjid and that belief is protected by the right to freedom of religion? The minority judgment will no doubt be cited for acceptance when the case is argued in December and it is anybody’s guess what a larger Bench may say.

The Swing Vote: Triple Talaq Bad in Theology

The story does not end with these four judges however. The fifth judge, Justice Kurian, Joseph held:

What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Justice Kurian Joseph has the swing vote and hence the practice of triple talaq is now illegal. The Chief Justice of India departs on Friday leaving a divided court on this issue. The real problem is the inability to decide what falls within the legitimate domain of religion and what does not. The issue is not going away, and has very important consequences for secularism as such across all issues and way beyond family laws.

No Discussion on Gender Justice

But the big question is, why did the court once again dodge the question of whether the law violated the rights of women since it discriminates against women based on sex? There is no discussion in the judgment on what gender justice means for women. Justice Rohington, instead of striking down the law for its violation of Article 15 that is non-discrimination based on sex, struck it down for being “manifestly arbitrary”.

The law is indeed manifestly arbitrary but it is also manifestly discriminatory based on sex and hence there is no reason why it should not have been struck down on that ground, laying the foundation for a gendered understanding of the Constitution.

Since the 1950s, the Supreme Court of India has dodged the question of whether family law is beyond purview of the Constitution – this judgment makes a breakthrough. Such a ruling would benefit not just Muslim Women but all women, since all family laws discriminate against women. The court has been saying, introducing the Constitution into family law is like “introducing a bull in a china shop”. Now with the judgment, the Bull has indeed entered the China shop, and happily so.
While the majority judgment could have been better reasoned, it has the merit of declaring the practice of triple talaq illegal and to that extent comes as a relief to many women. As for the injunction restraining Muslim men from giving a triple talaq for six months, no court has the power to prevent a divorce after having held it to be valid. It is an opinion without any basis in law and in view of the majority judgment, no one can pronounce triple talaq anyway.
Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?

The only solution to this vexed issue is marriage to consider a civil contract entered into voluntarily between any two persons with well-defined rights for women on the breakdown of the marriage. It is the separation of marriage and its discontent from religion which will show the way forward. As Justice Nariman says:

...contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out.

It is this modernity that we seek for women of all faiths with well-defined rights to community of property on the breakdown of a marriage.
Also Read: Is Triple Talaq Her Biggest Concern? Wonders a Practising Muslimah
(The writer is a former Additional Solicitor General of India. She can be reached at @IJaising. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

India: Supreme Court avenges a misogynist clergy | Saif Mahmood

Right-wing Muslim bashers rejoicing over the apex court having come down on the Shariat with a heavy hand need to hold their horses. Far from doing this, the apex court has actually fallen back on and relied upon the Shariat itself to accord justice to Muslim women by declaring the practice of Triple Talaq as illegal

FULL TEXT: http://indianexpress.com/article/opinion/supreme-court-avenges-a-misogynist-clergy-4809086/

India: triple talaq unconstitutional - split ruling in Supreme Court

Unconstitutional, unconstitutional, unconstitutional: SC strikes down Triple Talaq by 3:2 majority

 

In a landmark verdict, a Constitution Bench of the Supreme Court today held that the practice of instant Triple Talaq (talaq-e-bidat) is unconstitutional and violative of Articles 14 and 15.

The decision was rendered by a Bench of Chief Justice of India JS Khehar, along with Justices Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and Abdul Nazeer.

While Justices Nariman and Lalit held that Triple Talaq is unconstitutional and violative of Article 14, Justice Joseph struck down the practice on the ground that it goes against Shariat and the basic tenets of the Quran.

Here is a brief summary of the judgment rendered by Justices Nariman and Lalit:

• 1937 Act recognises and enforces Triple Talaq and is law in force
• Triple Talaq does not fall within the confines of Article 25.
• It is manifestly arbitrary and the 1937 Act insofar as it recognises the same, is unconstitutional and consequently struck down
• The judgment in State of Andhra Pradesh v. Mcdowell is per incuriam.

Below is a summary of Justice Joseph’s ruling:

• Triple Talaq against basic tenets of Quran and violates Sharia.
• Not an integral part of the religion.
• Purpose of 1937 Act is to declare Shariat as the only law governing Muslims.
• Since Triple Talaq is bad in Sharia, it is bad in law.
• Dissents with Nariman on the aspect that Shariat is law in force under Constitution.

Chief Justice Khehar and Justice Nazeer dissented, holding that the practice cannot be struck down on the ground of being violative of Article 14, since there is no state action.

They, therefore, directed the Central government to frame a law to govern the field.

Here is a summary of the dissenting judgment:

• Triple Talaq integral to Islam in India and part of personal law
• It is a practice which had prevailed for a long time.
• Triple Talaq does not violate Articles 14, 15 and 21 which are sanctions against state action.
• Practice is, however, not present even in theocratic Muslim States.
• Directs Union of India to frame appropriate law in this regard.
• Injuncts Muslims from exercising triple talaq for six months.

The case involved a batch of petitions filed by various parties challenging the constitutionality of Triple Talaq.

The petitioners had also challenged the Constitutionality of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 in so far as it seeks to recognise and validate Triple Talaq.

The lead petition was by one Shayara Bano. The matter also involved a suo motu case initiated by the Supreme Court in this regard.

A battery of Senior Counsel had appeared in the matter including Kapil Sibal, Ram Jethmalani, Salman Khurshid, Anand Grover, Indira Jaising and Amit Singh Chadha.

The Central government was represented by then Attorney General Mukul Rohatgi and Additional Solicitor General Tushar Mehta.

The Court had heard the matter for six days before reserving its verdict on May 18 this year.

READ MORE

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Instant triple talaq unconstitutional, against teachings of Islam: Supreme Court

The bench, which read out separate verdicts, ruled 3:2 against the controversial practice, also known as talaq-e-bidat. While CJI Khehar and Justice S Abdul Nazeer upheld the practice of triple talaq, Justices Kurian Joseph, R F Nariman and U U Lalit held that the practice needs to be abolished.

http://indianexpress.com/article/india/instant-triple-talaq-unconstitutional-against-teachings-of-islam-supreme-court-4807974/

• Triple Talaq verdict: Who said what on Supreme Court ruling

• 

  Supreme Court declares triple talaq ‘void’, ‘invalid’: A timeline of hearing

• 

  Triple talaq unconstitutional: Who are the petitioners, what are their arguments?

India: The case against triple talaq - Personal law must be subordinate to fundamental rights . . - Editorial in Livemint

livemint.com - May 16, 2017

The case against triple talaq

Personal law must be subordinate to fundamental rights and subjected to the test of constitutional validity

Editorial

“Can what is sinful in the eyes of God be lawful? If God considers it a sin, it can’t be legal. Can it be?” Chief Justice of India J.S. Khehar’s question on the second day of the Supreme Court (SC) case regarding the constitutional validity of triple talaq sums up the difficulties surrounding the contentious issue. Wading through the thicket of religious interpretation is a tricky task for any secular legal authority. More importantly, Khehar’s framing of a just law validated by religious belief points to the dangers inherent in blurring the boundaries between the two.

Triple talaq as it is practised in India—the husband saying “talaq” thrice to the wife in one go—must be addressed on multiple fronts. The same holds true for the associated practice of Nikah Halala—a divorced woman having to marry another man, consummate the marriage and have him divorce her before being able to remarry her first husband. The first front is that of constitutional protection—whether these practices are safeguarded under Article 25(1) of the Constitution, which guarantees the fundamental right to “profess, practice and propagate religion”. This is the approach the SC has adopted; it is examining if triple talaq forms an essential part of Islamic belief and practice.

That is venturing into tricky territory. On the face of it, there is substantial evidence that triple talaq is an innovation that has little to do with Quranic prescriptions. This is the argument made by the petitioners. It is buttressed by the text of the Quran as interpreted in the bulk of Islamic scholarship, as well as historical evidence and legal precedent. After all, a number of Islamic states, from Morocco and Algeria to Iran and Indonesia, have introduced modernizing legislation when it comes to divorce. And in multiple instances—A. Yousuf Rawther v. Sowramma, 1970, Kerala high court and Shamim Ara v. State Of UP And Ors, 2002, Supreme Court, for example—the courts have ruled against triple talaq as it is practised today.

The All India Muslim Personal Law Board, on the other hand, defends triple talaq as an integral part of Islamic law and, therefore, beyond the realm of the judiciary. Thus, the SC must in effect take a stand in a long-running global debate: Is Islam a “blueprint for a social order”, in Ernest Gellner’s words, or is there a distinction between Islamic—the religious—and Islamicate—associated cultural phenomena—as Marshall Hodgson suggested? The limits this imposes on the SC are apparent. If it concludes in the triple talaq case that the former holds and the practice is indeed an essential part of the religion in India, its hands are tied. It has admitted as much by saying that if it finds that triple talaq is fundamental to religion, it will not go into the issue of its constitutional validity.

This gives an undeserved sanctity to religious law. It is why addressing the issue on another front as well—placing Islamic or any other personal law in the context of constitutional liberalism rather than depending merely upon religious reform—is important. A number of the petitioners have argued that triple talaq violates their fundamental right to equality before the law, to non-discrimination on grounds of sex and to life and liberty. Indeed, Article 25(1) explicitly states that freedom of religion is subject to other fundamental rights. The Allahabad high court recently ruled so as well in the Shayara Bano case; she is also one of the SC petitioners.

The other argument against subjecting personal law to the constitutional validity test—that it is not a “law” as defined by Article 13 of the Constitution—has a precedent in the 1951 Bombay high court judgement in State Of Bombay v. Narasu Appa Mali. But as Gautam Bhatia has argued convincingly, this rests on far too narrow a reading of Article 13—one that can and must be overruled by the SC.

And that brings in the third front: the uniform civil code. Much of the opposition to the SC’s taking up the triple talaq issue stems from the fear that it is a back door for bringing in the uniform civil code. That would be the wrong way to go about it—but the goal is a worthy one. Arguments that this will stifle diversity and result in the imposition of Hindu laws are specious. As B.R. Ambedkar pointed out in the Constituent Assembly debates, uniform criminal laws and what amounts to a uniform civil code in the majority of civil law areas other than personal law already exist. They have not compromised religious freedom in any fashion. Nor is the need for a uniform civil code solely to do with Muslim personal law. Inequities exist in the other personal laws as well, from Hindu to Parsi.

The move to a uniform civil code will be a slow process and must be an inclusive, multi-stakeholder one. Prime Minister Narendra Modi has made conciliatory noises so far regarding the triple talaq case. But if he gives in to the temptation to use the issue for political advantage, it will make introducing the UCC debate in the public domain unviable for a good many years. Indeed, the wider political context—his administration’s failure to reign in gau rakshaks, or cow protection vigilantes, for instance—is already unhelpful.

Seven decades ago, the members of the Constituent Assembly chose the politically expedient path. The uniform civil code has been frozen as a directive principle of state policy since. If the ideal of a common law for all citizens in a secular republic—one that adheres to constitutional principles and ensures gender equality—is to be realized, the Centre will have to show both courage and statesmanship.

India: ‘We oppose triple talaq but don’t dare call us BJP’s handmaidens’: Petitioner Hasina Khan

Asking us to lie low lest we are seen as rallying with the ruling party trivialises our decades-long struggle for justice.

Hasina Khan

In 1985, when the Supreme Court’s judgement in the Shah Bano case granted divorced Muslim women the right to alimony, the All India Muslim Personal Law Board, a non-governmental organisation that professes to represent Indian Muslims in all matters of their faith, shouted “Islam is under threat”.
In response, Muslim women rallied to fight for their rights, especially in matters of marriage and divorce, and several women’s groups emerged from the community over the next three decades. Bebaak Collective, Awaz-e-Niswaan, Sahiyar, Muslim Mahila Manch, Pehchan, Muhim, Parvaaz Sangathan, and, more recently, Bebaak Collective Sahiyar articulated a radical politics, at one with secular and feminist causes. [. . .]

https://scroll.in/article/836509/we-are-against-triple-talaq-but-dont-dare-call-us-bjps-handmaidens

India's Supreme Court Will Only Look at Legal Aspect of 'Triple Talaq'

Daily News and Analysis

Will only look at legal aspect of triple talaq: SC

dna Correspondent | Wed, 15 Feb 2017-06:35am , New Delhi , DNA

 

The Court however opined that codifying morality was a matter for legislation, rather than for the judiciary to decide

The Supreme Court on Tuesday clarified that it would only look into the legality of triple talaq, and not delve into the dangerous waters of the Uniform Civil Code (UCC).
This observation was made when an intervenor submitted that UCC challenged the constitutional rights of the adivasi community he represented.
In this regard, the three-judge bench then asked all concerned parties to sit together and come up with a list of issues that need to be debated on.
During the course of the hearing, the bench said it would consider whether the three practices - triple talaq, polygamy and nikah halala were an integral part of Islam, as it has been interpreted and changed in other Islamic countries, including Pakistan, to accommodate modern day challenges. A list of tentative issues discussed by the court also included, as to whether the Muslim Personal Law (Shariat Application Act of 1937) is unconstitutional.
Other pertinent points that will come up for debate before the court could include questions as to whether the SC can lay down the edicts of morality, whether a court can interpret Holy Scriptures, and polygamy among other issues. The Court however opined that codifying morality was a matter for legislation, rather than for the judiciary to decide.
“You (lawyers for parties) sit together and finalise the issues to be deliberated upon by us. We are listing it on Thursday for deciding the issues,” a bench comprising Chief Justice JS Khehar with Justices NV Ramana and DY Chandrachud said.
At first, the court declined to look at facts in individual cases, choosing to focus on the overall legal aspect. “We are not interested with facts at all. We are only interested in dealing with the legal issues,” the bench said.
However, the bench later conceded that considering the facts of individual cases would help understand issues and it allowed lawyers to file synopsis of cases pertaining to alleged victims of triple talaq.
In October 2016, the Centre had opposed the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook. The Ministry of Law and Justice had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries.
The All India Muslim Personal Law Board, however, had rubbished the stand taken by the government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution.
Another prominent Islamic organisation Jamiat Ulema-i-Hind told the court there is no scope for interference with the Muslim Personal Law in which triple talaq, 'nikah halala' and polygamy are well rooted and stand on much higher pedestal as compared to other customs.
Even as these issues came into the fray, another intervenor took up the plight of the 11 crore adivasis who would be affected by any changes under the UCC.
The SC stated that final arguments in this case were likely to be heard by a constitution bench during the summer vacations. A tentative date forwarded by the court is May 11.

TENTATIVE ISSUES FOR SC TO ADDRESS

• Whether the Court has the jurisdiction to examine the constitutional validity of religious practices under challenge (polygamy, talaq-e-bidat, and nikah halala)
• Whether the religious practices under challenge are not an integral part of religion and therefore neither protected by Article 25 nor immune from judicial preview?
• Whether court can interpret Holy Scriptures?
• Whether a court should lay down the edicts of morality?
• Whether this court needs to intervene and protect the Fundamental Rights of Muslim women of India in the face of gender discrimination?

India: The Debate on Triple Talaq Must be Based on Proper Research and Data

The Wire

The Debate on Triple Talaq Must be Based on Proper Research and Data

By Faizan Mustafa on 06/11/2016 

Reports published by the Bharatiya Muslim Mahila Andolan leave several questions about Muslim personal law unanswered.

Representational image. Credit: Robert Schrader/ Flickr CC BY-NC-ND 2.0

The debate over Muslim personal law (MPL) has taken a serious turn in recent weeks with the government of India filing an affidavit supporting its reform. While the All India Muslim Personal Law Board  (AIMPLB) – established in 1972 – is being blamed for all the regressive provisions of MPL (Hanafi Law) in operation in India for about 1000 years, the Bharatiya Muslim Mahila Andolan (BMMA), formed in 2007, is rightly given credit for aggressively leading the current debate to reform MPL. The prime minister himself spoke of the plight of Muslim women a few days back and promised to bring an end to what he called the tyranny of triple talaq.
What’s at stake?
The BMMA deserves credit for undertaking two major empirical studies on the MPL but its statistical findings have at times been contradictory. The first study says 88% of divorces were unilateral while the second study says 59% divorces were unilateral., to give one example. Both the government and the media have blindly relied on these studies to make the case for reform. I am also not opposed to either the demand for reforming MPL or even to a uniform civil code. My concern in the present context is whether we can really achieve ‘gender justice’ simply by ‘banning’ polygamy and triple talaq.
The BMMA has come up with two reports. The first one is based on 117 case studies of triple talaq – though their study details only 88 cases and from one state, they have picked up just three cases. The second is a survey of 4710 Muslim women.
The BMMA maintains that it is a democratic organisation of Muslim women led by Muslim women which fights for the ‘Quranic rights of Muslim women’. Thus the fundamental premise of their argument with which a liberal scholar may disagree is that they simply want those rights for Muslim women which are given to them by the Quran. Like many others, the BMMA erroneously thinks that the Quran is a code of law or a statute enacted by the parliament. As a matter of fact, the Quran is neither a legal nor a constitutive document. The Quran by itself is not law. It is the source of law. Law is to be extracted from the Quran through interpretation.
The BMMA’s position is problematic on a number of points as they demand several rights which are not provided in the Quran, such as mandatory wills or gifts in favour of daughters to ensure that their share of inheritance is more equitable. Moreover, most constitutionalists would have problems with Quranic rights as they do fall short on women’s rights, as judged by modern standards.
The BMMA runs shariat courts with some efficiency but no one has bothered to question this parallel judicial forum run by them. Just like the AIMPLB, the BMMA too has asserted in the Supreme Court that ‘Muslim personal law’ is related to the ‘core religious beliefs’ of Islam and is thus, protected by the freedom of religion under Article 25 of the constitution read with Article 26. This position excludes the possibility of major reform in the MPL as courts have consistently held that freedom of religion under Article 26 protects the ‘essential or core’ religious practices of both “religious denominations as well as sects thereof”.
Thus the Hanafi sect and its law stand protected. Similarly, just like the AIMPLB, the BMMA too, opposes the uniform civil code and has explicitly asserted in the apex court that the same is ‘neither desirable nor practical.’
To be fair to the BMMA, one must concede that it is not asking for much. In fact, the BMMA looks as confused as Shayara Bano. Both of them have asserted in court that triple talaq, as per judicial verdicts, is now counted as one and yet asks the court to hold it as unconstitutional. Those opposing it are also not free from fault. As a matter of fact, the BMMA is basically asking that instant oral triple talaq must end and that the Quranic procedure of divorce in three months, with prior efforts of reconciliation between spouses, be strictly followed.
Thus they are not asking for revolutionary change but simply requesting the court for an ‘Islamisation’ of MPL. Most liberal scholars have been making similar demands and are against instant triple talaq. I feel courts have already ruled on this question in a number of cases and, indeed, such cases have been quoted by the BMMA in its application to the Supreme Court. To that extent,  the current hue and cry is  unwarranted.
Problems with BMMA’s research
The empirical studies undertaken by the BMMA to substantiate their views and demonstrate that an overwhelming majority of Muslim women want reforms in the MPL can be questioned in terms of their scientific validity and empiricism. The study titled ‘Seeking Justice Within Family – A National Study of Muslim Women’s Views on Reforms in Muslim Personal Law’ was published in March 2015. Any empirical study must clearly reveal its research methodology and the reasons for adopting the same. The sampling methodology needs to be revealed so that the reader may understand the representative nature of the sample.
There are internationally recognised norms and any research which claims to be scientific, must conform to them. Neither the aforesaid survey of 4710 Muslim women from 10 states, nor the study entitled ‘No More Talaq, Talaq, Talaq’ published in October 2015 – based on case studies of 117 Muslim women in eight states – mention the research methodology. The BMMA study relies solely on its self-selected respondents. What was the basis on which certain states or districts were selected and others excluded? What were the parameters by which the 4710 women were identified? Why did the BMMA not talk to their husbands, family members, neighbours as well to corroborate the accounts? In the absence of answers, their study cannot be termed scientific. Noorjehan Safia Niaz, who led one of the studies, has herself admitted that they prepared the study on the basis of their interaction with women they work with.
The first major finding of their initial study is that 15.5% women out of 4710 were married below 15 years of age.  No question was asked about the “option at puberty” under MPL, which entitles a minor to nullify his/her marriage, nor about how many of them exercised it, or why they could not. The study did not mention the shocking finding that 1.2 crore children in India are married before they reach the age of 10 and the percentage of Hindus among them – 84% – is in keeping with the share of Hindus in the population.  Eleven percent of Muslim children were married before reaching 10.  These figures also show the limitation of normative changes in the law. The Child Marriage Restraint Act,1929, and the Prohibition of Child Marriages Act, 2006, incorporate the general law of the land and are applicable to Muslims – yet these laws have not had their desired effects in any community.
The BMMA, which stands for codification, found that 83.3% of respondents thought ‘full codification of MPL was the answer to their fight for legal justice’. Despite the low level of education among Muslim women, as many as 35.2% of respondents were aware of codified laws in the Islamic countries and understood all the implications of codification. The BMMA should have asked its respondents how they came to know about the codification of law in Muslim countries. Even the government, in its affidavit to the apex court favouring the banning of polygamy has quoted the example of eight Muslim countries without realising that most of them have not really ‘banned’ polygamy.
Triple talaq
Muslim divorce is the central concern of the BMMA. It told the Supreme Court that in 2014 its Shariat courts received 219 cases of which only 22 were about triple talaq. Their study found that 22% divorces occur within the first year and 22% within first three years. Only 0.2% of the divorces happen after 15 years of marriage and 0.4% after 20 years of marriage. Shayara Bano got divorced after 15 years. This means hers is an exceptional case, like Shah Bano. As per the BMMA survey, the divorce rate amongst Muslims is as high as 11.1%. But the 2011 census data says that divorce rate amongst Muslims is just 0.56% (0.53 in 2001 census). This disparity has not been explained by the BMMA’s researchers. Ideally, there should have been comparative analysis with the divorce rates amongst Hindus. If divorce and separation are clubbed together, the Hindu rate would be 0.76%.
Contrary to popular perception that most Muslim women get unilateral divorces through phone, email and via text messages, the BMMA case study shows only one divorce out of the 117 was delivered in the absence of wife. As per the  BMMA’s own findings, only 0.2% got divorced over the phone, 0.6% received it through email and out of 525 divorces, only one was delivered via SMS, that is only 0.19%. Thus the problem is not as serious as it is made out to be by the media and the government. Moreover, as many as 220 divorces occurred in family homes, 110 in court and 46 through Darul Qaza. Thus as many as 71.6% of divorces happened publicly, according to the BMMA’s study, in the presence of family members, judges, lawyers, panchayats, NGOs and qazis. One is inclined to believe that in most cases there must have been some effort at reconciliation prior to actual divorce pronouncement and divorce in most cases was just the final act of  amicably dissolving the marriage.
The BMMA study itself reveals that in as many as 40.57% cases, Muslim women demanded a divorce and therefore it is clear that poor Muslim women, even under the existing and regressive MPL, do take initiative on their own. Thus the BMMA has exaggerated the problem of unilateral divorces. A triple talaq at the request of the wife or her family or as a result of mutual consent between two families may not be that unjust. As compared to this, what about Hindu wives who are unceremoniously discarded on flimsy grounds? The husbands remarry thereafter, without divorce, leaving these destitute women to fend for themselves. The Law Commission should conduct a detailed empirical study on the plight of Hindu women as well before it submits its report for a uniform civil code.
Polygamy 
The BMMA has powerfully argued for the abolition of polygamy and one may really be inclined to agree with them in the absence of a more nuanced solution. ‘Banning’ or ‘prohibiting’ does not fall within the purview of the Supreme Court. No court can create ‘offences’. The first principle of criminal jurisprudence is that the legislature alone can create ‘crimes’ or ‘prohibit’ or ‘ban’ something. Thus the court has no power to either ban polygamy or triple talaq. This is the parliament’s prerogative.
Interestingly the BMMA’s case study has not probed the issue of polygamy at all. In an indirect observation, it demonstrates the extremely low incidence of polygamy amongst Muslims. Here again, petitioner Shayara Bano is not a victim of polygamy and thus she is not an aggrieved party – but still in the very first paragraph of her petition she requests banning polygamy. She has filed a writ petition to get her own divorce deed declared as void ab initio. The BMMA study shows that only 2% of Muslim men had taken a second wife prior to divorce and as many as 38% preferred to remain single even after divorce. The BMMA researchers cannot complain about the 54% who married someone after divorce as this cannot be termed as bigamy. The BMMA study also did not include questions about how many divorced women got remarried.
Maintainance and ‘nikah halala’
The BMMA study reveals that only 50% of women get maintenance during the ‘subsistence of marriage’. This means post-divorce, destitution is not the only issue. Even married women during the continuance of their marriage are not being maintained by their husbands. The existing law is absolutely clear on this point. The study does not tell us why they could not use these provisions.
Most liberal scholars are against halala which they argue is an un-Islamic practice. Here again, Shayara Bano is not a victim of halala. The BMMA case study mentions just two cases out of 117 where respondents said that ‘they were asked to undergo halala’ – i.e. marriage to a second husband before they can return to the first. The weakness of their questionnaire becomes evident as there was no follow-up question on who asked them to undergo halala. In the second study as well, they found 1.6 % of women underwent halala. Thus, a massive majority of 85.52% of the divorcees were not subjected to halala. Again, the BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even during subsistence of the marriage.
Again, the BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even while they were married and had been subjecting them to domestic violence. Did their parents force them to remarry first husbands? Was this intervening marriage used as a device to facilitate their remarriage with the first husband? Do they have the nikahnama of these marriages? Did they freely consent to the second marriage? Were they given triple talaqs in these marriages? Did they receive their mehr for these marriages? The BMMA in its petition, admitted that the Masroor Ahmad case has now negated the effect of so-called halala.  If so, this means the problem has been solved by the judiciary. The BMMA has not clarified whether it is in agreement with so-called halala in the event that the divorce is in ahsan form, i.e., just one pronouncement as per the procedure prescribed in the Quran.
Let us try to understand this controversial subject of intervening marriage, or halala, from the perspective of the MPL. As a matter of fact, a Muslim can revoke his first divorce within three months without doing anything. If three months have passed without revocation, and if both the husband and the wife want to revive their relationship, they may simply remarry with a fresh nikah and mehr. If again, after some time, there is a second divorce, the husband may either revoke the divorce on his own within three months or remarry yet again if three months have passed. If the same story gets repeated a third time, then MPL treats the husband and wife as within ‘prohibited degrees’ and they cannot remarry each other any longer.  But in case the wife contracts another marriage with someone else and this second marriage too collapses on its own accord or if she becomes a widow, and if her first husband and she, out of their own free will, want to marry yet again, the prohibition stands removed and they can enter a fresh marriage contract. But no intervening marriage is permissible as an arranged device to simply remove the prohibition of marriage. The Hindu Marriage Act also talks of ‘prohibited degrees’ within which marriage is not permitted. Even the Special Marriage Act, which is the most progressive piece of legislation, also mentions certain ‘prohibited degrees’.
BMMA and shariat courts
The BMMA in their application to the Supreme Court has referred to Shariat courts run by them. They have stated that 219 cases came to these courts in three centres. Again domestic violence, dowry harassment, alcoholism of husbands, suspicious nature etc., appears to be the major problems – and the BMMA claims to have resolved most of them. How these cases were resolved is not clear. Did they end in reconciliation? If yes, can it be presumed that the husbands participated in the proceedings and did not pronounce triple talaq while the reconciliation procedure was going on? This analysis defeats their case that a Muslim husband pronounces instant oral talaq on the flimsiest grounds.
Alternatively, did the BMMA use the Domestic Violence Act? How were the many erring husbands held liable owing to BMMA’s intervention, not mentioned? How much money was spent on these litigations by the poor victims of domestic violence and how much time did these cases take? What difficulties did they face in using the criminal justice system – particularly section 498A of Indian Penal Code. The BMMA gives no data on vital issues like how they dealt with issues like dowry and domestic violence.
The BMMA shows the deplorable condition of Muslim women. But their condition is much the same as Hindu women from the same social class. The evil of instant ‘Triple talaq’ need only be replaced with the sin of ‘desertion’. Why is no one bothered about the plight of Hindu women on the issue of domestic violence, desertion and polygamy? The recent film, Parched, highlights this reality. The problems of poor women amongst all religious communities are similar and there is nothing special or distinct about Muslim women. The class character must be given due consideration in the analysis of any social problem.
Should the Supreme Court or government take crucial decisions to reform personal law on the basis of such unscientific research? The apex court should ask the Law Commission to conduct a major comparative study on this subject to know the ground realities of women from various religious communities. On its part, the government should release all the data from the socio-economic- caste census. Let this research be used as a starting point for a truly informed debate on the plight of women in Indian society – all women, regardless of caste, region or religion.
The author is the vice-chancellor of NALSAR University of Law, Hyderabad. The views expressed here are personal.

India: Islam has no conflict with a uniform civil code that provides justice, equality and dignity for all

scroll.in - 25 October 2016

Islam has no conflict with a uniform civil code that provides justice, equality and dignity for all

The very fact that women aren’t given a representative voice in the Muslim Personal Law makes the AIMPLB unqualified to speak on behalf of Muslim women.

[by] Sadaf Munshi

Over the past few weeks, there has been a lot of hue and cry among many Indian Muslims, men in general and clerics in particular, including the All India Muslim Personal Law Board and some socio-religious organisations claiming to represent Muslims, against “politicising the issue of triple-talaq”. People have posted fiery lines on social media advising against “any interference into matters of religion”.

“I reject Uniform Civil Code. I support Muslim Personal Law” is one of the Facebook profiles some people have adopted to register their protest. And some even went to the extent of equating attempts to publicise the matter, calling it a “nefarious design to annihilate Islam”. In fact, some so-called liberals have also jumped in to join the band wagon as advocates of “freedom of religion”.

Well, I do not think Islam as a religion is so weak that its foundations will be shaken by a very welcome decision of adopting a uniform civil code that provides justice, equality and dignity for all – notions that Islam has no conflict with. Abolishing an ages-old tribal practice such as triple-talaq, which finds no authenticity in the religion itself, is indeed a commendable step in this regard.
Anti-women spirit

The practice of triple-talaq is not just regressive and anti-women, it finds no historical basis in Islam. There is no evidence either in the Qur’an or in the hadith (‘tradition’) that supports its validity in the religion (Note that a number of spurious “traditions” have been claimed to be of Islamic origin but these need to be questioned and rejected wherever necessary).

Triple-talaq is a tribal practice inherited and adopted by certain sections of the Islamic world which was packaged in a religious garb just like a number of similar other cultural/tribal practices, such as female genital mutilation, etc. Thankfully the practice has been abolished in much of the Islamic world. Now that the Muslim women of India have finally spoken and spoken so vocally, it is high time the nation comes forward with its full support to reject this outdated practice.

It needs to be highlighted that triple-talaq is among several other lies that were propagated by many clerics over generations in the name of “Shariah” and “Islamic law” to keep Muslim women permanently subjugated and deprive them of a dignified life that would otherwise be guaranteed to them had the very essence of the idea of Ijtehad – continued reform and reinterpretation – been implemented in practice as one of the central tenets of Islam.

It is no surprise that the Islamic world often gets mired in controversies in the context of women’s issues, when their role in the public domain is very restricted. Women find it extremely challenging and near impossible to have a powerful and effective voice on matters related to social and religious practices that primarily affect them. While few steps that could allow their participation in the matters of religion are taken, gender-segregation makes things much worse and often impossible. Thus, their role in the Fiq’h, the Islamic jurisprudence, which is literally and technically based on “deep understanding and broad consensus”, is simply non-existent. Consequently, most of the “Islamic” rules and regulations, often termed as “Shariah Law”, are neatly anti-women – both in structure and in practice.
All male board

Now, take a look at the All India Muslim Personal Law Board, which claims to be representing the Muslim voice of India as far as matters related to religion are concerned. Last time I checked, all the 41 members of the Board were men, few with any formal education other than in the religious schools they follow. Furthermore, while all the AIMPLB members are primarily from the majority Sunni community, a great majority of these belong to the Deobandi sect (notorious for its extremist interpretations of Islam), and exclude Ahmadis. I even went to do some research and checked the AIMPLB website – page by page. I read about a number of events, saw scores of pictures, read about the organisers of various events – not a single woman is visible anywhere. This is no coincidence but a deliberate attempt to “keep women where they belong” – behind the four walls of the house, taking care of children, of their men, doing their household work, wrapped in layers of fabric concealed from any outside influence, being good wives, and serving their other needs. And it is also reflected in the shrinking space for women in religious places, mosques, and Sufi shrines where more and more women feel increasingly unwelcome and often give up and stay away.

Here I don’t need a lesson on “emancipated Muslim women” – that is a personal journey and a very difficult one for every single Muslim woman who sets her foot firm and refuses to bend against social and cultural pressures. Many people will try to justify the Muslim Personal Law on flimsy grounds and give some examples of women’s participation and their role in the social and political issues. But, let’s be honest. How strong is the impact? Equal rights for women are not a given but an ongoing struggle. No doubt there are many progressive Muslim men out there but more often than not they have little say on matters that affect a large number of women. Few of them are decision-makers as far as matters pertaining to religion are concerned. In fact, a great majority of Muslim men would literally have nightmares if their women were to be their equals. This is not to imply that men of other religions are any better in their treatment of women, but here we are talking about Muslims.
Islamic jurisprudence

As far as Fiqh (“Islamic jurisprudence”) is concerned, “deep understanding, expansion and reinterpretation” (foundational goals of Fiqh), can only be achieved through “consensus” – the very basis of the human understanding of Shariah (the divine law). It is because the AIMPLB is inherently pro-men (and, therefore, anti-women), not only in its composition but also in its themes and objectives that an independent body of All India Muslim Women’s Personal Law Board had to be created but the latter have unfortunately failed to garner any significant support from the government of India or from the Muslims (read “Muslim men”) in general. In fact, few Muslim men are willing to even treat the Board with any seriousness. Women’s voices are often muzzled and at the most ignored as far as religious issues are concerned. There can be no consensus in Fiqh on matters primarily related to women without the complete involvement of women. As an all-male body, AIMPLB loses its validity and credibility in claiming to be the voice of the Indian Muslims in general and of Muslim women in particular.

Finally, the idea of “freedom of religion” cannot supersede nor should it be in conflict with individual freedoms, justice, liberty and equality. Fortunately, there is no conflict between Islamic jurisprudence and the notion of a uniform civil code both of which are in principle based on a board consensus and aim to provide dignity for all, including women.

The very fact that women aren’t given a representative voice in the Muslim Personal Law makes the body of AIMPLB unqualified to speak on behalf of Muslim women. Providing a national platform to such an undemocratic body and entitling it to determine the fate of half of the Muslim population of India is not only unfair but also unconstitutional.

The Board has no moral or constitutional right to represent all the Muslims of India. As an informed Muslim woman and as an Indian national, I support the uniform civil code and reject the Muslim Personal Law in its current form. I also reject any such law which legitimises loopholes that can be used as tools to continue women’s subordination and subjugation. Any attempt to scuttle the much awaited effort of providing justice and dignity to all Indian women amounts to pushing them in a path of continued hardship and heartache, and should be strongly resisted by every responsible citizen of the country. A healthy discussion on this topic will be the way forward.

Dr Sadaf Munshi is an academic, artist and writer based in the United States.

India: Video recording on Judiciary, Law Commission & Muslim Law - Storm in a Teacup by Prof Tahir Mehmood

India: Deciding issues of personal law (Wajahat Habibullah)

The Hindu - October 18, 2016

Deciding issues of personal law

by Wajahat Habibullah

The Supreme Court can and must make a pronouncement on the widely excoriated practice of triple talaq

Thirteen years ago, Justice V.R. Krishna Iyer, pleaded in a piece titled ‘Unifying personal laws’ in The Hindu (September 6, 2003): “My powerful plea is that the personal laws may be reformed from within, without a quantum leap into a common code. Remarkable changes in Islamic laws are possible without violating the Quran but adopting progressive hermeneutics.” The issue described as ‘triple talaq’ has unnecessarily been confused with the issue of a uniform civil code, thus thrusting India’s minority Muslim community into the defensive. But this dilemma is essentially a question of whether the Supreme Court can pronounce on an issue of personal law. It is my case that it not only can, but must.

Ruling in the Shah Bano case

The last time that Supreme Court sought to rule in a matter concerning personal law was in 1985 resulting in what has come to be known as the Shah Bano amendment. Shah Bano was married to Mohammed Ahmad Khan, an affluent and well-known advocate of Indore, Madhya Pradesh, in 1932. The couple had five children but after 14 years of marriage Khan took a younger second wife. For a time he lived with both, but when Shah Bano was 62, she was thrown out together with her five children. In April 1978, Khan even stopped giving her the paltry Rs.200 per month that is said to have been promised.

With no means to support herself and her children, Shah Bano petitioned a local court in Indore against her husband citing Section 125 of the Code of Criminal Procedure (CrPC), asking for maintenance of Rs.500 for herself and her children. Khan’s response: in November 1978 he pronounced an irrevocable talaq (divorce), taking the defence that hence Shah Bano had ceased to be his wife and therefore he was under no obligation to provide maintenance for her except as prescribed under the Islamic law, which was her mehr, promised on marriage, Rs.5,400 in all. While courts at different levels directed payment of different sums, all a mere pittance, holding that Section 125 of the CrPC applies to Muslims, in 1980 Khan took the matter in appeal before the Supreme Court claiming that Shah Bano was no more his responsibility because he had a second marriage, which was permissible under Islamic law.

The Supreme Court of India — in a two-judge Bench of Justices Murtaza Fazal Ali and A. Varadarajan who first heard the matter — held in light of the earlier decisions of the court that Section 125 of the CrPC did indeed apply to Muslims, referred Khan’s appeal to a larger Bench. Some Muslim quasi-religious bodies, namely the All India Muslim Personal Law Board (AIMPLB) and Jamiat Ulema-e-Hind, joined the case as intervener.

The matter was then heard by a five-judge Bench chaired by Chief Justice Y.V. Chandrachud and comprising Justices Ranganath Mishra, D.A. Desai, O. Chinnappa Reddy and E.S. Venkataramiah. In a unanimous decision of April 23, 1985 in Mohammed Ahmed Khan v. Shah Bano Begum and Ors. (1985 SCR (3) 844), the Supreme Court dismissed Khan’s appeal and confirmed the judgment of the high court. It held unequivocally that “there is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself”. There was no doubt, held the apex court, that the Koran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. Besides, Section 125 of the CrPC applies to all regardless of caste or creed. So Shah Bano had the right to be given maintenance money, similar to alimony. The court also went on to discuss the desirability of bringing a uniform civil code in India, holding that a common civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.

The clergy backlash

This judgment was vigorously criticised by the Muslim clergy. I was at the time a Director in the Prime Minister’s Office (PMO), dealing with matters concerning the minorities. I found on my table a slew of petitions and letters criticising the judgment and seeking government intervention to overturn a ruling which in their view irreparably compromised Muslim Personal Law. The principal spokesmen for the clergy were Obaidullah Khan Azmi and Syed Kazi, founding members since 1973 of the AIMPLB, which was set up to safeguard Muslim Personal Law as enacted. But on my table were letters, petitions, and memoranda from organisations of Muslim clerics from across the country.

The source of Muslim Personal Law in India is the Muslim Personal Law (Shariat) Application Act, 1937, a law that is a colonial anachronism enacted to win over the Muslim clergy from what was, thanks to the legacy of the war of 1857, a Muslim population largely hostile to the British. As acknowledged in the Statement of Objects and Reasons of the Act, it was in fact moved by the Jamiat Ulema-e-Hind, described in the Act as the “greatest Moslem religious body”.

In my note on the file, I had pointed out that the representations received were primarily from the clergy and seemed to arise from an apprehension that the ascendancy granted to them by the 1937 Act in matters concerning social relations amongst Muslims was under threat. And indeed the law does state in Section 2 that in matters concerning “intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law”. But I advised that the apex court had arrived at its decision after due reference to the provisions of the Koran. The government must respect the supreme character of that court and even if the arguments of the clergy in the matter are well founded, it is for the court to judge on their application, not the government and not the clergy. I suggested that a reply go to each of the petitions advising that the petitioners seek a review by the Supreme Court. The most that the government might do in this regard is to agree not to contest the review.

Roots of government intervention

It seemed awhile that this advice had been accepted, although no response was received to my suggestion that the PMO politely decline the request to intervene. Then one day as I entered Prime Minister Rajiv Gandhi’s chamber, I found M.J. Akbar sitting across his table. Rajiv smiled cheerily, “Come in, come in Wajahat, You are one of us.”

I found this greeting odd but was to discover the reason soon enough. Mr. Akbar had convinced Rajiv that if the government were not to contest the Shah Bano judgment, it would appear to the Muslim community that the Prime Minister did not regard them as his own. In what he perceived as the defence of their religious rights, Rajiv would show himself worthy of the support that the community had always placed in his family. This was the argument that Mr. Akbar developed in a Doordarshan debate with then-Minister Arif Mohammed Khan, in which Mr. Khan had argued that the Koranic provision or lack of it for maintenance was neither a compulsion nor closed to interpretation. But Mr. Akbar, more westernised, had argued that the Muslims needed the reassurance that only an amendment could bring.

A setback for Muslim women

The Muslim Women (Protection of Rights on Divorce) Act was adopted in May 1986 and nullified the Supreme Court’s judgment in the Shah Bano case. The Statement of Objects and Reasons of this Act clarifies that when a Muslim divorced woman is unable to support herself after the iddat period that she must observe after the death of her spouse or after a divorce, during which she may not marry another man, the magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim law. But when a divorced woman has no such relatives, and does not have enough means to pay the maintenance, the magistrate would order the State Wakf Board to pay the maintenance. The ‘liability’ of the husband to pay maintenance was thus restricted to the period of the iddat only.

The consequences of this Act are open to debate. Yet the message that it brings home is that the application of the usual law, as enunciated by the Supreme Court, would have been of greater benefit and extended to the Muslim woman the rights granted to other Indians. Worse, the Act generated a conflict of interest between the two principal religious communities of India, fostering hostility against each other and the government.

In today’s vitiated communal environment it would be best if the apex court were to take on the responsibility of interpreting the law in light of the widely excoriated practice of triple talaq, which in the view of many practising Muslims is not the law.

Wajahat Habibullah, a retired civil servant, has served as Chief Information Commissioner and Chairperson of the National Commission for Minorities.

India: "Muslim Personal Law is the biggest stumbling block . . . support a Common Indian Personal Law" - Zarina Bhatty

Frontline - Print edition : June 24, 2016

Woman’s right to divorce

Zarina Bhatty.

ZARINA BHATTY, with a schoolgoing daughter, obtained a divorce through khula (a form of divorce initiated by the wife) when she was in her twenties. It was not easy. Hailing from an educated family in Barabanki, Uttar Pradesh, she was born in Lucknow, has the popular poet Javed Akhtar among her cousins, and the noted poet Jan Nisar Akhtar was an uncle. She had studied in the United Kingdom and taken on various jobs to make ends meet while her husband Hayat tried to find his feet in the world of academics. Back in India, she taught at Delhi University and went on to become the president of the Indian Association for Women’s Studies. Yet, obtaining the divorce was neither easy nor instant. Beyond the stigma in society, which always holds a woman responsible for a marital breakdown, Zarina’s case was more complicated simply because she intended to settle down with another man. Hence the need to obtain khula, a woman’s right to single, irrevocable divorce. Her husband would not give her talaq because he would then have to give her mehr (a mandatory payment) and maintenance. So, she had to initiate divorce proceedings herself. She has penned down her experience in the book Purdah to Piccadilly, released recently in New Delhi.

Says Zarina Bhatty: “As a Muslim woman, it was very difficult for me to seek divorce, unlike a Muslim man who could divorce at will by saying ‘divorce you’ three times. For a Muslim woman, it is very difficult to demand divorce without the husband’s consent.” She recalls that her husband was angry when faced with the divorce request from her. Having grown up in a patriarchal set-up, he took it as personally humiliating. The divorce through khula did come about though. Zarina writes in the book: “One day, he called a friend and gave him a piece of paper on which he had written three times as per the requirement of the Muslim Personal Law, ‘I divorce my wife Zarina by khula’.”

Khula, she clarifies, “means that divorce is granted at the request of the wife and in such a case, the husband is not legally bound to pay mehr or maintenance. It is only if a husband initiates a divorce that he is bound to pay the agreed mehr.”

Although she went on to marry soon after obtaining khula, the experience left an indelible mark. Even today, when she either writes or talks of the khula, it appears that the wound is fresh.

In response to a query as to why khula is not so well known or talked about among Muslim women, she says: “As for khula not being talked about, the continuing social disapproval of divorce (for which the woman is made responsible anyway) is responsible. Besides, the economic dependence of most women on their husbands and the Muslim Personal Law’s provision whereby the children can be taken away by the father after divorce works as a deterrent to khula. Women resist asking for khula. Many uneducated women do not even know of it and it is not in the interest of men to publicise it. It is to their advantage to keep their women ignorant of their rights.”

She also laments that it requires the husband’s approval for khula to take place. Incidentally, the husband, as per law, cannot say no to khula, nor can he inquire into the reasons why a woman wants it. “Khula requires the husband’s consent, while triple talaq does not require the wife’s consent; it can be given unilaterally. Also, in khula, the husband is not required to pay mehr, but if the husband pronounces talaq then he is required to give the mehr.”

Hardened by the experience, she comes across as a feminist today and believes that a uniform civil code, just like the criminal code, is the way forward for society. “I firmly believe that the Muslim Personal Law is the biggest stumbling block to women’s progress in Muslim society. It is for the younger, educated and enlightened Muslims to support a Common Indian Personal Law, which should be culled out by taking the best aspects from other community laws, including the Hindu Code Bill, which is not fully equitable.”

She also questions the clerics’ interpretation that the provisions of the Muslim Personal Law are the word of God. “They do not know Arabic, they should be exposed,” she states. She is not ready to give up hope though, arguing that the moment we give up hope, we concede defeat. She finds hope in the winds of change blowing across Muslim society. “Muslim society is also changing like the rest of Indian society but very slowly and, unfortunately, ‘identity politics’, resulting in Muslim fundamentalism, coupled with strong patriarchy has made it slower.” As proof of change within, she cites greater acceptance of divorce. “The social stigma against divorce is not as strong now as it was in my time and ‘son’ worship has reduced among educated urban Muslims, although it does continue in rural and uneducated sections. Unfortunately, modern technology is also unfriendly to women, as foeticide further strengthens the prejudice against females.” She is firmly convinced that Muslim society will get better with “education and exposure”. 

Common customs

But in India, is not culture almost always paramount and religion subservient? There are so many social customs common to Muslims and Hindus. And Zarina, after her second marriage to a Christian, discovered that fair complexion was valued in that community too and that the girl child was not exactly welcomed. “In all societies, for ordinary people, culture is more important than religion. In fact, many cultural practices are often understood and followed as religious ones because of ignorance. For example, in the Oudh region, to which I belong, it is customary to breastfeed a girl for one year and nine months and a boy for two years and three months. It is only a patriarchal practice, giving more value to male life. My own mother followed this practice, though there is no mention of it in the Quran or the Hadith. As almost all Muslims are converts from Hinduism, they accepted Islam as interpreted by the mullahs, most of whom do not have a good knowledge of the scriptures. The new religion did not change their everyday life much. For instance, in India, there is the dowry system borrowed from Hindus, while in Saudi Arabia, bride price is practised. It is common to be influenced by the dominant culture. Indians are no exception,” says Zarina. She herself attracted criticism when she first acted in a play by Ismat Chughtai, as there was a prejudice against girls from “good” families being seen onstage.

When she was growing up, Muslim society emphasised seclusion of girls, with the elders instilling the need to speak softly so as not to be heard by strangers or visiting men at home. Did she not find it strange to be so confined in a religion where Khadija, the first wife of the Prophet, was a renowned businesswoman? Zarina agrees that patriarchal forces have been dominant in the Muslim discourse of life in the Uttar Pradesh-Bihar belt. “One hardly ever talks of Khadija, who was a businesswoman, a widow, and older in age to the Prophet. Hazrat Ayesha, the youngest of the Prophet’s wives, even commanded an army. Did these women wear the burqa? Indian Muslim society today is totally a male construct which gives men superiority over women.” Hence the story of Zarina.

Ziya Us Salam

India: Laws that accord secondary status to women need to be reformed says Ram Puniyani

[Well meaning activists have been saying exactly this for for over 30 years but to no avail. Reform from with-in is the only song they play. Talking of a common law that applies to all citizens is such a big taboo among the secularists and feminists, the less said the better . . . - editor Communalism Watch ]

The Indian Express

Nothing personal about it
Laws that accord secondary status to women need to be reformed.

Written by Ram Puniyani | Published: June 13, 2016 2:49 am


The personal law question needs to be understood in the context of patriarchy. All reform movements that challenge patriarchy call for our support. (Express Photo: Javed Raja)

Many social practices that reflect social inequalities hide behind the cover of religion. Personal laws under British administrators were drawn from diverse sources. It reflected the gender prejudices of its times since the interpreters of “religion” have been mostly men. The process of reforming regressive practices also began during the British rule. Reformers ended practices like Sati and child marriage. Conservative sections in the society opposed these reforms and insisted that these be preserved in the name of “defence” of religion.

Many campaigns for social reform are continuing among both Hindu and Muslim communities. Some of the campaigns to let women enter temples where they were not allowed — like Shani Shingnapur — have been effective. Similarly, Muslim women are demanding entry to Haji Ali Dargah, where they are not allowed since the past five years. It is against this background that the Bhartiya Muslim Mahila Andolan (BMMA) launched a campaign against triple talaq. A survey done by BMMA shows that around 92 per cent Muslim women are opposed to this abominable practice.

The BMMA has already collected the signatures of 50,000 Muslim women to oppose the triple talaq and also to oppose talaq halala. In triple talaq, a man can pronounce talaq three times and throw the wife out of the house. In talaq halala, if the husband decides to take her back, she has to get married to someone else, consummate the marriage, and then divorce the new husband before she can return to the earlier husband. Many maulanas offer this service of being “temporary husbands”.

As per the BMMA, both these practices are un-Islamic. It points out that such practices are not mentioned in the Quran. A memorandum submitted to National Commission for Women mentions that, “The instant method of divorce has no mention in the Quran. In fact, the Quranic method requires a 90-day process of dialogue, reconciliation and mediation before divorce takes place.” Many Islamic scholars endorse the BMMA’s stand. However, the Muslim personal law board and Jamaat-e-Isalmi do not agree with the BMMA. The Jamaat is planning a campaign to oppose the efforts of Muslim women for reforming personal laws. There are many progressive groups, prominent activists and writers from the community, who have declared solidarity with the agitating women. However, these people are being dubbed by conservatives as supporters of Uniform Civil Code (UCC), a pet theme of the BJP and the RSS.

The fact is triple talaq is banned in over 21 Muslim majority countries including Pakistan. The rights of religious minorities for culture, right to life and affirmative action need to be supported. At the same time, the process of reform within the community must also be upheld and supported on moral, social and legal grounds.

The demand for personal law reforms by Muslim women and the BJP-RSS call for UCC are not comparable. The RSS is inherently patriarchal and its pro-UCC stance is merely to intimidate the religious minorities. The same RSS had opposed the Hindu Code Bill (HCB) drafted by Babasaheb Ambedkar. The RSS was against the reforms proposed in the HCB. The opposition from conservatives in the Hindu community, including many elements in the Congress, forced the Nehru government to dilute Ambedkar’s draft of the HCB.

RSS leader M.S. Golwalkar was a strong opponent of UCC. Later, in the wake of Shah Bano judgment, when dominant Muslim groups opposed the court ruling in the name of Muslim personal law, the RSS began to demand UCC. In any case, UCC was initially a demand of the women’s movement.

The basic point which emerged from the making of the HCB was that most personal laws reflect the hierarchical notions of society and thereby accord secondary status to women. So what we need are gender just personal laws. The gender just code in turn has to be the same for all the communities and, hence, it will be uniform. Gender justice has to be the basis of uniformity; blind uniformity may turn out to be most unjust for women.

Can non-Muslims opine on the issue of Muslim personal laws? This writer wants the rights of minorities to be respected across nations. This includes the rights of women, who are a minority in power structures. Movements like the BMMA seeks to reform personal laws by exploring the space available within the Quran. Needless to say, there are multiple interpretations of the Quran. The BMMA, which strives to privillege the humane and just aspects of the teachings of a religion, needs to be supported.

The personal law question needs to be understood in the context of patriarchy. All reform movements that challenge patriarchy call for our support. Gender equality has to be prioritised over conservative interpretations of religious scholars. We do need to say a big no to triple talaq and polygamy.

The writer is chairman, Centre for Study of Society and Secularism, Mumbai