Reform Muslim personal laws, but spare the clerics
If we are to judge by debates on prime time news shows, Muslim personal laws in general and triple talaq, along with polygamy, in particular appear to be the most controversial issues in recent times after may be Tanmay Bhat's spoof video.
Muslim personal laws inherently are discriminatory towards women and the arbitrary talaq system violates their basic human rights in 21st century India, we are told. While there may be merits in each of these allegations, the direction the debate has gone is very problematic.
It appears to target and vilify a particular community, showing it as backward and semi-barbaric, practising medieval laws, in the process missing the larger picture.
Social problem or merely religious?
The debate invariably goes like this: women in Islam are discriminated, Muslim men abuse personal laws and hence Muslim personal laws must be abolished, and should be replaced by a uniform civil code (UCC). Such a debate may serve political agendas of a few groups but often miss the larger problem of patriarchy prevailing in our part of the world, and in India in particular.
India, after all, is one of the few countries in the world where male-to-female ratio is disproportionately low as a result of female foeticide. The girl child is discriminated against unlike her male siblings, parents have to give dowries to marry off their daughters, domestic violence is rampant, and husbands deserting their wives is not rare.
Most women are still economically dependent on male members of the family. These social ills are widespread, irrespective of region, caste or class, although to be fair, as the census reports show, the male-to-female ratio among Muslims is better. Further, according to the latest census data analysed by IndiaSpend, 84 per cent of the 12 million married children under ten years are Hindus.
The fact that Muslim men in India seek dowry in marriage is itself anti-Islamic, and a by-product of culture. Muslim friends from other parts of the world scoff at this social evil as they consider it beneath a man's dignity to take any form of gifts.
In most Muslim countries, it is the groom and his family who have to bear all expenses of weddings. Stuck in patriarchy, men in our society think that they have the birth right to abuse women and often take refuge in religion, but to blame a particular faith for the same appear nothing but motivated.
Take the example of 35-year-old Shayara Banu, who the media thinks is the "the first Muslim woman to challenge a personal law practice". She was abused by her husband and in-laws for 15 years allegedly for dowry and had to undergo a number of abortions as she was not able to conceive a male child. She was finally served "talaqnama".
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| Umpteen number of op-ed columns are written each time a case on Muslim divorce comes up. |
Now one empathises with her, and women like her, who have to go through such an ordeal, but which of the above-mentioned acts is exclusive of Islam or Muslims? Have we never heard of men beating their wives on the pretext of inadequate or no dowry?
There is a reason that our lawmakers thought we need anti-dowry laws and a Domestic Violence Act? These are anyway criminal offences that would apply to anyone irrespective of his or her faith.
Further if Shayara wanted to end her marriage, she could even seek alimony under Muslim Women (Protection of Rights on Divorce) Act, 1986. This is not to justify heinous acts by certain men, but to point out that seeing crimes through the prism of religion is short-sighted and appears motivated.
Prejudiced debate over uniform civil code (UCC)
Not just Muslim personal laws, but India also has the Hindu Marriage Act, Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956), Hindu Adoptions and Maintenance Act (1956), besides Indian Christian Marriage Act, Parsi Marriage and Divorce Act, and so on, but in all debates over UCC, we hear largely about Muslim personal laws.
The champions of UCC also conveniently ignore the fact that India already has a form of UCC in the Special Marriage Act (1954). It is another matter that it has been made voluntary.
What is surprising is that even most ardent champions of UCC themselves invoke respective personal laws, except a handful of very liberal-minded people or atheists or those who have had inter-faith nuptials.
Umpteen number of op-ed columns are written each time a case on Muslim divorce comes up, and prime time discussions run on similar patterns arguing how Muslim personal laws are biased against women, that in a democracy like ours there should be no place for such laws and we should instead have a UCC. But we rarely see similar outrage when non-Muslim women file cases under the anti-dowry law or Domestic Violence Act.
Muslim bashing, particularly cleric-bashing can help score a few brownie points but that will only aggravate the problem instead of solving it. The purported custodians of faith would see such aggression as imminent danger on religion, retreating further into their cocoons and they would eventually defend themselves with extra zeal. Real reform can only take place by taking them on board as none can deny the immense influence clerics or priests have in our kind of societies.
What sacred texts say?
Marriage in Islam is a solemn contract (meesaaqan ghaleeza) and it is a woman who offers herself in this wedding. She hence has full rights to determine the terms of the contract; for example she can include in it that her future husband cannot have another marriage. If she is a doctor or a lawyer, she can insert that she must be allowed to practise after marriage; and if her in-laws later try to prevent her from going out, she will have the right to drag them to court.
For any reason, if the marriage does not work, both men and women have the right to seek divorce. Islam was the first religion that allowed for this separation as in Christianity or Judaism marriage bonds could only break at death; while Hindus traditionally believed that nuptials is for all seven births.
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| In today's age, it is the need of the hour to have institutionalisation of the personal laws. |
Triple talaq is considered as talaq al bid'ah ("sinful" innovation) but was widely accepted by everyone for a long time till 13th century scholar Ibn Taimiyah argued otherwise.
Taking his argument forward, A Faizur Rahman, an independent Islamic researcher and secretary general of the Chennai-based Islamic Forum for the Promotion of Moderate Thought has lucidly elaborated in an article in TwoCircles.net on the different stages that a couple must go through before actual divorce or talaq, which, in short, are as follows:
1. Husband and wife to reason out through dialogue (fa'izu hunna).
2. Temporary physical separation (wahjuru hunna).
3. More convincing to effect reconciliation (wazribu hunna).
4. Arbitration.
5. First talaq followed by iddah or waiting period of three monthly menstrual cycles.
6. Options within iddah: second talaq or resumption of conjugal relations without re-marriage.
7. Options after iddah: Re-marriage or final separation through third talaq.
While Islamic scholars are divided on whether triple talaq in one sitting is actually permissible, there are already enough liberal interpretations that say that such a practice is un-Islamic and contravenes basic principles of Islam and rights of women.
Triple talaq and Indian courts
Several Indian courts of law have relied on these liberal interpretations to pronounce this practice as archaic on a number of occasions. Most recently, the Lucknow bench of the Armed Forces Tribunal has pronounced it as "un-Islamic" relying on a liberal interpretation, based on an article in The Wire (although without acknowledging it).
In fact, this is not the first time something of this sort had happened, and as Flavia Agnes pointed out in an article in Economic and Political Weekly, even the apex court and several high courts have held similar views on many occasions in the past.
It is, therefore, amply clear that several women in the past have challenged this system of triple talaq, notwithstanding the reservations by the clerics, led by the All India Muslim Personal Law Board (AIMPLB), and in most cases, courts have rightly upheld women's rights and termed the divorce illegal.
Yet, articles written on how for the first time a Muslim woman has challenged a personal law practice reek of nothing but ignorance and prejudice. The issue is very sensitive and critical, but sadly the debate taking place in the media often appears to reduce it to sensationalism, trivialising it in the process.
Time for self-introspection to bring personal law practices in sync with the times
At least 22 countries, including Egypt, Iran, Jordan, UAE, Pakistan, Turkey and Malaysia have banned it. In Pakistan, for example, such an act would be considered illegal if notice is not sent on time to the chairman of the state-appointed Union Council and punishable by imprisonment of up to one year.
Even countries like Sri Lanka, with a small Muslim population, have more progressive laws pertaining to Muslim marriages and divorce. Indian courts may take guidelines from Pakistan's Muslim Family Laws Ordinance, 1961, or the Muslim Marriage and Divorce Act, 1951 of Sri Lanka owing to cultural affinities.
To begin with, the manifestation of the deep-seated rot is in the form of the AIMPLB, which is a registered "society" and does not really have any legal sanctity as such, although it wants to project itself as the custodian of the personal laws.
Except for some garnishing, the membership of AIMPLB has largely remained the same since its inception, comprising some of the most conservative and socially regressive people.
Their stands on most socio-political issues appear outdated and what is worse is that they have forgotten the very concept of Ijtehad or deliberations to come to logical rulings in light of the Quran and Hadith (sayings of the Prophet) when they say that there can be no talk on the subject of Sharia (Islamic law); and that exposes the bankruptcy of their thinking abilities.
Moreover, it is very easy for liberal Muslims who have had modern education to ridicule clerics but they have equally failed the community themselves, if not more. Take the example of two of the noted public-funded universities, Jamia Millia Islamia and Aligarh Muslim University on which Muslims claim "ownership".
These universities with Islamic Studies, Law, Sociology as well as Women Studies departments have largely failed to become the torchbearers of reforms within the community.
In today's age, it is the need of the hour to have institutionalisation of the personal laws; and the registration of marriages and divorces must be made mandatory and popularised.
A legal body - a sort of modern day Darul Qaza (Islamic court) - needs to be constituted, to adjudicate matters related to marriage and divorce. Such a legal council must have adequate representation of jurists, experts of Islamic jurisprudence belonging to different schools of thoughts as well as women scholars.
There is scope for the constitution of an autonomous body under the (amended) Arbitration and Conciliation Act, 1996 as part a form of an alternative dispute resolution mechanism.
Times have changed. Women today are more educated than they ever were and are hence demanding the rights they deserve. Muslim leaders and conservative clerics, steeped in patriarchy, would want to continue stonewalling reforms from within, refuse to take women on board and deny them due rights at their own peril.