http://www.hindustantimes.com/news/5922_882564,0015002200000057.htm
The Big Idea: Reform, reform, reform
A.G. Noorani
Given the record since its birth on December 28, 1972, the
decision of the All India Muslim Personal Law Board on July 4 to
reject a legislative ban on the infamous triple talaq was true
to form. It offers, instead, to persuade Muslims “to follow
Shariah (Islamic law) rules in matters of marriage, termination
of marriage by talaq” and promote a nikahnama (marriage
contract) which would provide for arbitration if differences
arise between a couple. Its president, Maulana Syed Rabey Al-Hasani
Nadvi, said, “Our laws are based on divine inspiration and
triple talaq comes from the same inspiration, that is the
Shariah.” This is palpable falsehood. There is not a single
verse in the Koran sanctioning the triple talaq or a single
precept of Prophet Muhammad in its support.
On the contrary, the Koran clearly enjoins: “If ye fear a breach
between them, appoint (two) arbiters, one from his family and
the other from hers. If they wish for peace, God will cause
their reconciliation....” (4:35). It is dishonest to flout a
mandatory Koranic injunction by unilateral recourse to the
triple talaq and claim divine sanction for it. This talaq is a
man-made rule.
Section 7 of the Family Laws Ordinance, 1961, of the Islamic
Republic of Pakistan, gives legislative sanction to the Koran’s
injunction. It provides for an arbitration council, “for the
purpose of bringing about a reconciliation”, comprising a
representative of each side. Why cannot such a law be enacted in
India? And why can’t the courts enforce the Koranic injunction
and declare the triple talaq bad in Muslim law? The triple talaq
was disapproved by the Prophet and is known as ‘the sinful
talaq’ (talaq al-Bida). According to one hadith (collection of
his precepts), “The messenger of Allah, peace of Allah be upon
him, was informed about a man who divorced his wife three times
together, so he stood up and said ‘Is the Book of Allah being
sported with while I am in your midst?’”
The ordinance was inspired by a Commission on Marriage and
Family Laws appointed by the Government of Pakistan on August 4,
1955. Its report, a masterly document, points out that “the very
name [of the talaq] condemns it as un-Islamic”. It recommended
arbitration which, “if enacted, will bring into force the law as
laid down by the Holy Koran and the Sunnah...”
The correct legal position is well documented by Prof. Alamgir
Muhammad Serajuddin in his excellent work, Sharia Law and
Society (Oxford University Press, Karachi), citing the report
and the mass of authorities it relied on, including two precepts
of the Prophet disapproving triple talaq.
The great jurist, Syed Ameer Ali, explained how abuse crept into
Islamic jurisprudence at the instance of the Omayyad monarchs
who, “finding that the checks imposed by the Prophet on the
facility of repudiation, interfered with the indulgence of their
caprice, endeavoured to find an escape from the strictness of
the law, and found in the pliability of the jurists a loophole
to effect their purpose”.
The forms approved by the Prophet are known as talaq ahsan (most
approved) or talaq hasan (less so). Divorce is pronounced by the
husband, but it becomes effective only after the period of iddat
(wife’s seclusion for nearly three months) is over. It is
revocable. Remarriage is permissible if the wife agrees. But not
so in the second form.
In 1943, the Jammat-e-Islami chief, Maulana Abul Ala Maududi,
opined: “Due to want of knowledge, Muslims have been generally
given to understand that a talaq can be pronounced only through
the triple-divorce formula, although it is an innovation and a
sin leading to many legal complications. If people knew that
triple divorce is superfluous and even a single talaq would
dissolve the marriage, of course, leaving room for revocation
during the next three months and remarriage thereafter,
innumerable families could have been saved from disruption.”
The wife has a corresponding right of divorce called ‘khula’.
Maududi remarked: “It is a great folly that we have practically
withdrawn from our women the right of khula, little caring for
the fact that denying them this right on a footing equal to
talaq, is absolutely un-Islamic.” Section 2 (IX) of the
Dissolution of Muslim Marriage Act, 1939, enables dissolution on
“any ground which is recognised as valid for the dissolution of
marriages in Muslim law”. Khula is enforceable in Indian courts.
Besides, the wife can also stipulate a right to divorce in the
marriage contract itself.
The law in force in India is not Islamic law but Anglo-Muhammadan
law, which the courts followed during the Raj. In 1905, one
English judge of the Bombay High Court, Justice Batchelor, was
honest to admit that “there can be no doubt that talaq-ul-bidat
(or irregular divorce) is good in law, though bad in theology”.
The Privy Council ruled in 1894 that it would rely on “the
ancient doctors of the law” and not on the original sources, the
Koran and the hadith. The Supreme Court of Pakistan rejected
this approach.
So did Justice Baharul Islam in two judgments he delivered in
the Guwahati High Court. He became judge of the Supreme Court.
In a judgment delivered on September 18, 2002, Justice R.C.
Lahoti of the Supreme Court (now Chief Justice of India)
approved both. He said, “Quoting in the judgment several Holy
Koranic verses and from commentaries thereon by well-recognised
scholars of great eminence, the learned Judge, Baharul Islam,
expressed disapproval of the statement that ‘the whimsical and
capricious divorce by the husband is good in law, though bad in
theology’, and observed that such a statement is based on the
concept that women were chattel belonging to men, which the Holy
Koran does not brook. The correct law of talaq as ordained by
the Holy Koran is that talaq must be for a reasonable cause and
be preceded by attempts at reconciliation between the husband
and the wife by two arbiters — one from the wife’s family and
the other from the husband’s; if the attempts fail, talaq may be
effected.”
One of our foremost scholars on Muslim law, Tahir Mahmood,
remarked, “The masses... remain under the influence of mediocre
maulvis who, themselves awfully ignorant of the true postulates
of the Shariah, keep on transmitting their wrong notions and
misconceptions to the common man... The All India Muslim
Personal Law Board and other Muslim organisations that have, of
late, been making strenuous efforts for the protection of the
Shariat law in this country must, first of all, set their house
in order.” He said this in 1983.
The board is a nuisance kept alive by the Sangh parivar’s
clamour for a uniform civil code. It has neither competence nor
credibility. Reformers must draw on the resources of jurists far
more erudite in the Muslim world and in academia abroad; expose
the falsehoods of the board, and take the battle to the courts
and to public opinion.
