Revision as of 22:44, 7 December 2016

Triple Talaq

Muslim Laws on Divorce

Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.

Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaq-etafweez (delegated divorce).

The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change.

Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives.

Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act).

The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees.

Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give one. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”

Trends

60% are unilateral

The Times of India, Nov 07 2015

Himanshi Dhawan 

60% of triple talaqs unilateral: Survey

A survey of Muslim women -victims of triple talaq -found that 6 out of 10 women were given divorce unilaterally by their husbands. In almost all other cases the divorce was onesided with the woman informed about it by her relatives, the local Qazi or through sms or email. An earlier study by the NGO Bharatiya Muslim Mahila Andolan (BMMA) had found that 92% of Muslim women were opposed to the triple talaq.

The present survey con ducted on 117 women based across the country revealed that in 54% cases, the husband remarried almost immediately and almost 80% women were deprived of maintenance. About 16% of women did not know the mehr (payment or possessions given by the groom's family to the bride) amount ixed during the nikah and in 56% of the cases they were deprived of this token amount itself.

BMMA co-founder Zakia Soman has demanded that triple talaq should be banned.“We are not in favour of uni orm civil code but for re orms in the Muslim personal law and banning triple talaq will be the first step towards it, she said.

The study conducted by BMMA reads like a “horror story and reveals what havoc gross misuse of the noble Is amic law is playing in society, said Prof Tahir Mahmood, a legal scholar.

Indian approach

Armed Forces Tribunal rejects ex-parte divorce

The Times of India, May 27 2016

Military tribunal cites statute, rejects jawan's triple talaq plea

Arunav Sinha  The Lucknow bench of the Armed Forces Tribunal has rejected the `triple talaq' by an Army jawan through ex parte proceedings, and said no person in the shadow of personal law could go against the Constitution that protected women of every religion in the country. The tribunal said that personal law or the Constitution did not allow any husband to end the wedding orally , by notice, or by ex-parte decisions, while rejecting the petition of jawan Farooq Khan, who had pleaded that after giving oral `talaq' and filing for divorce, he was not bound to pay maintenance to his estranged wife Asrey Jahan.

The tribunal said that maintenance along with the arrears should be paid within three months. Farooq and Asrey got arried in 2009. Within two married in 2009. Within two years, their relationship turned sour. After pronouncing `talaq' orally , Farooq took divorce through an ex-parte notice in 2011.

“Nikah is based on offer and acceptance between man and woman. Unless both agree, there cannot be any nikah. Marriage is a contract...it cannot be rescinded unilaterally,“ the tribunal said.

Zeenat Shaukat Ali’s view

The Times of India, Apr 28 2016

Zeenat Shaukat Ali

Shayara Bano case will be critical for gender justice to Muslim women

The Supreme Court's suo motu decision delivered by Chief Justice T S Thakur and Justice U U Lalit, to test the legal validity of triple talaq in one sitting in the petition filed by Shayara Bano, has long been overdue.Shayara Bano ­ a sociology postgraduate and a mother of two ­ appealed that triple talaq be declared unconstitutional when her husband ended their 15-year-old marriage by sending her a letter with the word talaq written on it thrice. The All India Muslim Personal Law Board has declared that the country's top court has no jurisdiction to undertake the exercise as Muslim Personal Law “is inextricably interwoven with the religion of Islam“, being based on the Quran and not on a law enacted by Parliament. This argument has little logic. It needs to be unequivocally stated that the talaq-ibidat, admitted by the Muslim Personal Law Board to be “sinful“ and an “innovation“, finds no sanction in the Quran.

Neither does the Quran sanction this form of divorce in one sitting nor was it legally held permissible by the Prophet.Such a practice violates the fundamental principles of gender justice, gender equity , good conscience and the dignity of women strongly enunciated in Islam.

The Prophet denounced the pre-Islamic, patriarchal notion of the husband's absolute right to divorce, stating that divorce was the most reprehensible of all things permitted: “God has not created anything on the face of the earth that he loves more than emancipation; and God has created nothing upon the face of the earth more hateful to him than divorce“ (AD 13:3). The Quran illustrates this point by expressing approval when the Prophet recommended that Zayd should not divorce his wife in spite of the fact that there was long standing dissension between husband and wife. “Behold thou should say to one who has received the Grace of God and His favour, retain your wife in wedlock and fear God“ (Q 33:37).

The arbitrary , undisputed, absolute power of divorce by the husband with triple talaq in a single sitting was the common customary law practised in pre-Islamic Arabia in the days of jahiliyya or ignorance, where a husband would discard his wife by contemptuously tossing his slipper saying “you are unto me like my slipper“. This is a grave distortion of the law of divorce in Islam and was condemned by the Prophet as the following Tradition demonstrates: “The Messenger of Allah was informed of a man (Rukhana) who divorced his wife three times together, his face became red and he stood up in displeasure and said: `Is the Book of Allah being sported with while I am still in your midst?'“ (NS 27:6) This mode of talaq, once pronounced, is considered “bain“ or irrevocable where rights of inheritance cease immediately on pronouncement though the death of the husband or wife may occur during the period of iddat or period of waiting.Further, in this form of talaq, if the parties wish to remarry the wife undergoes halala, a humiliating pre-Islamic practice where the wife went through a marriage with another man which is consummated and subsequently dissolved.

As Justice Ameer Ali points out, legitimacy of the triple talaq seems to have crept into Islamic jurisprudence at the instance of the Umayyad monarchs.Inexplicably , although disapproved by the classical jurists, it has been accepted by most Sunni jurists.

Unfortunately the legality of this mode of divorce is upheld in India if the husband were to repudiate his wife during her menstrual flow, if he is in a drunken state, in a fit of temper, in jest, at the slip of a tongue, when the woman is pregnant and other such situations, communicated even by means of a telephone call, an SMS, through Facebook or over Skype.

Needless to say talaq-i-bidat has devastated the lives of many women and children. Deprived of any opportunity for reconciliation, this mode of divorce has been subject to criticism in several Muslim countries.

Modernist interpretation advocated by scholars introduced reform through the juristic means of ijtehad (creative interpretation). Several Muslim countries have brought about reform through codification. Countries like Turkey , Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, Indonesia and Pakistan have either reformed the law completely or brought about legally stringent preventive measures in this area. Tunisia brought about reform by de-recognition of the triple talaq within the circumference and perimeter of Islamic law.

The time has come for major strides to be taken to bring about reform and change in the Muslim Personal Law in India. In order to accomplish this, codification of the Muslim Personal Law is an imperative.The process of codification of Muslim Law must now be seriously undertaken by a group of legal experts, experienced jurists well versed in the Muslim law, legal experts, liberal ulema and scholars in the field. Gender-just laws must be the common denominator. Alongside Muslim women, Muslim men's organisations must push for change.

If Muslim countries can bring about reform in family laws India must follow suit. In the words of Justice Hidayatullah: “If the lead is coming from Muslim countries, it is hoped that in the course of time the same measures will be applied in India also.“

State-wise

2016: Telangana qazis oppose one-sided talaq

The Times of India, Apr 22 2016

Syed Mohammed

At a time when the All India Muslim Personal Law Board (AIMPLB) is opposing any move to scrap triple talaq and is all set to contest the Shayara Bano case in the Supreme Court, the qazis of Telangana are silently bringing in change by discouraging a different type of divorce -one they describe as `one-sided talaq'.

Qazis point out that there have been hundreds of cases over the last several months in which men have sought to divorce their wives without informing them of their intentions.Such spouses seek to deposit the meher (dower) with qazis and request them to send their spouses notices of divorce. However, qazis claim that this procedure finds no religious sanction.

Qazi Mir Mohammed Khader Ali, who heads the Anjuman-e-Qazat, or the council of qazis, said he turned down at least 200 such requests last year and insisted that the applicant's wife be present at the time of filing for divorce. “Talaq is very much a legal provision. But not informing the wife about talaq, depositing the dower with qazis and scooting is not right,“ he said.

Calling it a `misuse' of the divorce provision, Ali said such incidents occur due to lack of understanding of Islam and Islamic laws.

Chief qazi of Secunderabad and Secunderabad Cantonment jurisdiction, Syed Shah Noorul Asfia Soofi, said he had come across more than a dozen such cases in last few months.“The only way to put an end to this is to not entertain the affidavit for divorce unless both parties are present or till talaq has been pronounced. Once the man returns with his wife, counselling can be done and perhaps the marriage can be saved,“ he said.

Qazi Ikramullah, who heads the Nalgonda Qazat, said “at least 15 percent of marriages can be saved if one sided talaq is discouraged“. Qazis point out that to tackle the menace, the archaic Khazis Act of 1880 needs to be amended.

Qazi Mohammed Yusufuddin Askar from the Qila Mohammed Nagar Qazat, a jurisdiction which covers large portions of Golconda, said a conference of heads of agencies associated with the Minorities Welfare Department (MWD) and parliamentarians should be convened to decide the future course of action. “The police can play an active role in stopping this,“ he said.

The Goan way

Sources:

1. The Times of India, Apr 03 2016

2. The Times of India, April 3, 2016

Freedom from triple talaq: Goa shows the way

Goa is the only state that disallows personal laws of all religions. It has a uniform civil code -with a few exceptions not relevant to Muslims -based on Portuguese colonial laws. Goa's mullahs sought to extend Muslim personal law to Goa after liberation from Portuguese rule, but happily were foiled by the Goa Muslim Women's Associations and Muslim youth activists. Muslims account for 8.3% of Goa's population, and are a prosperous community . The civil code has not oppressed Goan Muslims or forcibly Hinduised them.

A step forward in gender justice is the Supreme Court’s admission of the petition of a Muslim woman, Shayara Bano, pleading that polygamy and oral triple talaq —saying talaq thrice in succession — violate fundamental human rights, and hence are unconstitutional. Indian politics has always sabotaged gender justice for Muslim women. But the Supreme Court does not have to woo Muslim vote banks, and can be objective.

The mullahs are livid, of course. Kamal Farooqi of the All India Muslim Personal Law Board says, “This will mean direct interference of the government in religious affairs as Sharia religious law is based on the Quran and Hadith, and its jurisprudence is strong as far as Islam is concerned. It will be against the constitutional right to religious freedom.” Sorry, but the Constitution makes it very clear that freedom of religion does not override fundamental rights, and does not bar reforms of traditional religious practices. Sharia law may permit the stoning to death of a woman for adultery, but our secular laws ban that. Sharia law may call for the amputation of fingers or hand of a thief, but not our secular laws. Sharia law may prohibit interest on loans, but Muslims giving or taking loans are subject to laws on interest payments.

Now, religious minorities have been allowed to continue with traditional personal laws on matters like marriage and inheritance. Jawaharlal Nehru had the courage to amend Hindu personal law, outlawing polygamy and providing female rights to inherit property, divorce, and remarry. Alas, he funked similar reforms for Muslims, leaving Muslim women as oppressed and subjugated as ever. A Directive Principle of the Constitution says the state shall endeavour to secure for citizens a uniform civil code throughout India. This has never been implemented. Muslim conservatives are dead opposed. Religious objections apart, they say a civil code will become a form of Hindu oppression. Some enlightened Muslims have urged modernization of Islamic personal law. But secular political parties know that conservatives control the Muslim vote, and woo them by saying Muslims themselves must take the initiative on reforms. In effect, secular parties have thrown Muslim women to the wolves in search of votes.

Oral triple talaq permits a man to utter three times that he is divorcing his wife, and she is at the mercy of his whims. In our travels through India, my late wife Shahnaz often spoke to Muslim women, who invariably said that one of the greatest injustices they faced was the ever-present threat of triple talaq. The same fears are expressed by Shayara Bano in her Supreme Court petition. “They (women) have their hands tied while the guillotine of divorce dangles perpetually ready to drop at the whims of their husbands who enjoy undisputed power.”

Women constitute half the Muslim population, but have no voice because of male subjugation. Politicians who say Muslims don’t want to reform personal laws are thinking only of male Muslims, not female Muslims. When oppressive Muslim laws keep women under the thumbs of men, they cannot express their true wants and have to follow male orders. Conservative Muslims have historically discouraged female education, keeping women disempowered and unable to strike out on their own.

If a referendum with secret voting is held among Muslim women, they will surely opt to abolish triple talaq and polygamy. But they are not given the chance. So they remain disempowered and subjugated,with the shameful complicity of secular parties claiming to represent universal rights. The 2012 Committee on the Status of Women has made gender recommendations covering all religions. It seeks to ban triple talaq and polygamy. It seeks stronger provisions for maintenance payments to women and children (these can currently be cut off if a divorcee is “unchaste”). The Supreme Court should heed the report.

Forget the propaganda that a common civil code will mean Hindu oppression. Goa is the only state that disallows personal laws of all religions. It has a uniform civil code — with a few exceptions not relevant to Muslims — based on Portuguese colonial laws. Goa’s mullahs sought to extend Muslim personal law to Goa after liberation from Portuguese rule, but happily were foiled by the Goa Muslim Women’s Associations and Muslim youth activists. Muslims account for 8.3% of Goa’s population, and are a prosperous community. The civil code has not oppressed Goan Muslims or forcibly Hinduised them.

Any fear that a uniform civil code will mean Hindu oppression of Muslims will be exposed as groundless if India simply follows Goa’s example. The Supreme Court should point all political parties in Goa’s direction.

See also

Muslim personal law: India