Revision as of 19:07, 27 June 2017

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.”

`Women can say triple talaq too'

Dhananjay Mahapatra, `Women can say triple talaq too’, May 17, 2017: The Times of India

Muslim Law Board Informs SC

Marriage in the Muslim community is a contract and it is open to women to insist on specific clauses in the nikahnama to protect their interests and dignity , the All-India Muslim Personal Law Board (AIMPLB) informed the Supreme Court.

Arguing through Ejaz Maqbool, the board submitted before a five-judge Constitution bench headed by Chief Justice of India J S Khehar FULL COVERAGE: P 8 that a woman had four options before entering into a marital relationship, including insisting on registering the marriage under the Special Marriage Act, 1954.

“The woman can also negotiate in the nikahnama and include provisions therein consistent with Islamic law to contractually stipulate that her husband does not resort to triple talaq, she has the right to pronounce triple talaq in all forms, and ask for a very high `mehr' amount in case of talaq and impose such other conditions as are available to her in order to protect her dignity,“ the Muslim law board told the apex court. Interestingly , last September, AIMPLB had filed an affidavit in SC in response to petitions by Shayara Bano and others challenging triple talaq and said, “Sharia grants right to divorce to husbands because men have greater power of decision-making.“

“A Muslim man can delegate his power of pronouncing talaq to his wife or to any other person. However, such delegation does not deprive the husband of his own right to pronounce talaq.“ Arguing against the court putting triple talaq to a constitutional test, advocate Kapil Sibal cited Article 371A to argue that even the Constitution intended to protect matters of practice and customs of communities.

On polygamy , the board had said in September last year, “Quran, Hadith and the consensus view allow Muslim men to have up to four wives.“ It had said Islam permitted polygamy but did not encourage it.“However, polygamy meets social and moral needs and the provision for it stems from concern and sympathy for women,“ it had said. “Since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited,“ it said. “...polygamy is not for gratifying men's lust, it is a social need.“

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.“

Judicial verdicts

'Triple talaq' a cruel and most demeaning form of divorce: Allahabad HC

The Hindu, December 8, 2016

'Triple talaq' a cruel and most demeaning form of divorce practised by Muslim community: HC

Omar Rashid

Bench says Muslim law in the country are contrary to teachings of Quran and the Prophet; Constitution is supreme over personal laws of any community.

The Allahabad High Court has come down heavily on the practice of “triple talaq”, saying this form of “instant divorce” is “cruel” and “most demeaning”, which “impedes and drags India from becoming a nation.”

“Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce”, a single judge Bench of Justice Suneet Kumar said.

The court observed that “divorce is permissible in Islam only in case of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of marriage by Talaq or by Khola.”

Personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution, the Bench said.

The observations were made while dismissing the writ of an elderly Muslim man who was seeking protection for himself and his second wife, half his age.

The man submitted in the court that he had divorced his first wife through the custom of "triple talaq" and now felt threatened by relatives of his second wife and his own family.

"The instant divorce [triple talaq] though has been deprecated and not followed by all sects of Muslim community in the country, however, is a cruel and the most demeaning form of divorce practised by the Muslim community at large. Women cannot remain at the mercy of the patriarchal setup held under the clutches of sundry clerics having their own interpretation of the holy Quran. Personal laws of any community cannot claim supremacy over the rights granted to individuals by the Constitution," the court said.

Justice Kumar said the matter was in the Supreme Court. "I would not like to say anything further for the reason that the Supreme Court is seized with the matter."

The arbitrary use of "triple talaq" by Muslim men was not in sync with Islamic law, he said.

"The judicial conscience is disturbed at this monstrosity. The first wife has to live life for no fault of her but for the reason that her husband got attracted to a lady half of her age which is the reason for being divorced. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict evil instant divorce does not accord with Islamic injunctions," he said.

"It is a popular fallacy that a Muslim male enjoys, under the Quranic Law, unbridled authority to liquidate the marriage," he said.

Talaq certificates by Chief Kazi have no legal sanctity: Madras HC

Sureshkumar, Talaq certificates issued by Chief Kazi has no legal sanctity, says Madras HC, Jan 12, 2017: The Hindu

The Madras High Court on Wednesday passed an interim order restraining the Chief Kazis from issuing ‘talaq certificates’ (a certificate validating talaq as per Islamic Shariat) till further orders.

The First Bench of Chief Justice S.K. Kaul and Justice M.M. Sundresh also clarified that “for the purposes of courts of legal proceedings, the certificate issued by the Chief Kazi is only an opinion and has no legal sanctity.”

Order on PIL plea

The Bench passed the order on a public interest litigation petition moved by senior advocate Bader Sayeed seeking to declare that Kazis in India, particularly Tamil Nadu, were not empowered to certify talaq.

Ms. Sayeed claimed that Kazis were issuing certificates recognising talaq without following necessary precedents like reconciliation. Sometimes, it was done without even the knowledge of the wife.

“Such certificates issued in an arbitrary manner are causing undue hardship to Muslim women,” she said.

She said the Kazis, once considered judicial authorities under the Muslim Personal Law, no longer possessed such powers after courts of law were established during the British regime. The Kazi Act established in 1880 was very clear. It had not vested any powers of adjudication with Kazis.

“Even assuming that the practice of talaq in respect of personal law is constitutionally valid, whether the conditions for invoking triple talaq were satisfied or not cannot be adjudicated by Kazis. The said process can be conducted only by a court of law,” Ms. Sayeed said.

Only an opinion

The petitioner contended that the nature of such certificates were causing immense confusion in the matrimonial proceedings and in the understanding by both the spouses as to the effect of such a certificate being issued by the Chief Kazi.

She produced some certificates to the court and pointed out that the tenor of such certificates remained the same since 1997. It merely stated that “on a representation of the spouse on a particular date, the talaq pronounced in respect of his wife is valid as per Islamic Shariat.”

“As to what facts which persuaded the Kazi to opine to issue a certificate has not been set out. Moreover, it does not clarify that the certificate is only in the nature of opinion,” the petitioner argued.

To this, the Muslim Personal Law Board submitted that it was willing to examine the format in which such certificate may be issued as an opinion of the Kazi, so that there would be no ambiguity on its effect.

The Bench passed the interim direction pending consideration of the issue by the Muslim Personal Law Board.

Triple talaq unilateral, bad in eyes of law: HC

Rajesh Kumar Pandey, Triple talaq unilateral, bad in the eyes of law, says Allahabad HC , May 10, 2017: The Times of India

Referring to the practice of triple talaq, the Allahabad high court has observed that under Muslim personal law, marriage is a contract which cannot be rescinded unilaterally .

The HC made this observation in the last week of April while dismissing a petition by Aaqil Jamil, whose wi Don't politicise triple talaq issue, says PM, P 16 fe had filed a criminal complaint against him alleging that he had tortured her for dowry and when his demands were not met, he gave her triple talaq. The court's order in the case was uploaded on the HC's website on Tuesday , two days before the Supreme Court begins hearing a clutch of petitions challenging the validity of triple talaq.

Justice Surya Prakash Kesarwani observed that personal law or the Constitution does not entitle a husband to rescind the contract of marriage orally or by giving a notice or by ex parte decision.“Hence, such a practice is unsustainable and bad in the eyes of law,“ the judge said.

The HC said all forms of discrimination on grounds of gender violate fundamental freedoms and human rights. The human rights of women and of girls are an in alienable, integral and indivisible part of universal human rights, the court said.Hence, talaq by a Muslim husband to his wife cannot be made in a manner which may infringe her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life) of the Constitution, it added.

The court also made an important observation on the practice of `nikah halala', an Islamic marriage ritual which involves a woman divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it permissible to remarry her previous husband.

“No lady can be compelled to marry some other person in case she wants to marry her husband again after talaq.This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected by Article 21 of the Constitution of India,“ the judge said.

Kesarwani further said: “All citizens, including Muslim women, have fundamental rights guaranteed by the Constitution. Under the garb of personal law, rights of the citizens protected by the Constitution cannot be infringed on.“

Jamil had filed the petition asking for the quashing of his wife's complaint maintaining that he had given triple talaq to her in 2015. Thereafter, he obtained a fatwa from the city mufti of Agra, in which the latter affirmed the talaqnama and pronounced that her former wife, after being divorced, has become impure (haraam) for the petitioner. Hence, the subsequent complaint filed by his wife must be quashed because as per Islamic personal law, no marriage existed between the parties on the date of filing of complaint, the petition said.

SC and the Triple Talaq

5 judges of 5 faiths on triple talaq bench

5 judges of 5 faiths on SC triple talaq bench , May 11 2017: The Times of India

A unique combination of five Supreme Court judges belonging to different faiths will start hearing final arguments on the constitutional validity of triple talaq, the first day of the SC's summer vacation.

For a sensitive issue like this, the lead petition is aptly titled “Quest for Equality vs Jamiat Ulama-i-Hind“. And hearing the case will be five judges from five different communities -CJI J S Khehar (Sikh) and Justices Kurian Joseph (Christian), R F Nariman (Parsi), U U Lalit (Hindu) and Abdul Nazeer (Muslim).

However, it needs to be mentioned here that a judge decides a case only on the consideration of merit and nothing else as she takes oath that “I will bear true faith and solemnly affirm faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability , knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws.“

Tagged with the case are six petitions by Khuran Sunnath Society , Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri.

Justice Nazeer silent during 6-day hearing

Dhananjay Mahapatra, Muslim judge on multi-faith bench kept mum all through, May 19 2017: The Times of India

A unique, multifaith five-judge bench of the Supreme Court, with a Sikh, Christian, Parsi, Hindu and Muslim on it, concluded hearings on the challenge to the triple talaq practice on Thursday but Justice Abdul Nazeer did not utter a single word during the six-day hearing.

CJI J S Khehar and Justices Kurian Joseph, R F Nariman and U U Lalit freely engaged the counsel seeking clarifications on doubts over religious practices and customs of the Muslim community, but Justice Nazeer had no question to ask. Probably , he was well aware of the origin, practice and prevalence of triple talaq among Muslims in India and abroad.

No hearing in any court in India on any Muslim custom, practice or personal law can be complete without referring to Sir Dinshah Fardunji Mulla's monumental work on interpretation of Mohamedan law. When Mulla was referred to by senior advocate Salman Khurshid on Thursday , Justice Nariman said, “Mulla was not only a great scholar on Muslim law but also a qualified priest like me in the Parsi community .“

Justice Joseph, who had absented himself from the Chief Justices Conference in 2015 protesting at the event being scheduled on Good Friday and shooting off a letter to the PM reminding him that equal importance must be shown to sacred days of all religions, was the most vociferous. He asked simple and intricate questions about the connection between religion and social practices.He also made the counsel feel at ease before the bench.

While AIMPLB was adamant that Muslim personal law practices could not be tested for its validity by courts, the petitioners were adamant that triple talaq was a blot on the Muslim community for denying right to equality to women.With the division getting sharper as the conclusion of hearing neared, senior advocate Indira Jaising said, “The SC has to walk the razor's edge.There is no escaping this.“ CJI Khehar replied in a lighter vein, “If we walk the razor's edge, we will be cut into two.“

Another advocate, Ashwini Upadhyay , attempted to ridicule AIMPLB's stand saying tomorrow there would be a Hindu Personal Law Board to take a rigid stand on Hindu practices. The bench stopped him and said, “You are a lawyer, don't argue this.“

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.

Incidence of divorce among Muslims

Lower rate than among Hindus other religious communities

Shoeb Khan |`Muslims have lower divorce rate than other groups' | Apr 10 2017 : The Times of India (Delhi)

AIMPLB Cites `Data' From 30 Dists In India

Muslims have a lower rate of divorce compared to other religious communities, including Hindus, the All India Muslim Personal Law Board (AIMPLB) has claimed in response to a petition by R S S-affiliated Muslim body Muslim Rashtriya Manch (MRM) against the practice of triple talaq.

AIMPLB made this claim citing a report based on RTI replies, family courts, Darul Qaza (Shariat courts) and independent studies from 30 districts.This report was unveiled by AIMPLB's women's wing chief Asma Zohra .

Citing divorce data collected from a period between 2011 and 2016, Zohra said, “Hindus constitute 56.21% of the total population in Kozhikode, while Muslims and Christians constitute 39.24% and 4.26% respectively as per the Census of India 2011report revealed in 2015. While the family court in Kozhikode says that number of dowry and divorce cases under the Hindu Marriage Act was 3,700. There were 398 cases under Christian Divorce Act and 487 under Muslim Marriage Act.“

“If you spent years dissolving a marriage, then chances of rehabilitating become almost difficult. Triple talaq is more secure for women seeking divorce as it involves several rounds of negotiations.It is in the eye of the storm because it is related to Islam,“ said Farooqui, who claimed that Muslims also have least number of separated couples which, she said, is the “worst form of any relationship“.

The central government has challenged the validity of triple talaq in the Supreme Court stating the practice to be against gender justice and spirit of the Constitution. AIMPLB, contesting the case in favour of triple talaq, will submit the report in the court to counter the argument that Muslims have highest number of divorce in the country due to the practice of triple talaq.

See also

Muslim personal law: India