Split over Talaq

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PAKISTAN

I met my husband through a matrimonial portal. Everything was good for two-three months. After three months, my in-laws started mentally harassing me for dowry. Their demands were increasing day by day. They started beating me up and asked me to leave the house. I went to my mother’s house. After seven or eight days my husband apologised and took me back. But again he and his parents started abusing and harassing me. Then I left home again. While I was staying with my brother, I received a speed post from my husband saying that through this letter he was divorcing me. In the meanwhile, I lost my mother and elder brother; I lost my father in 2009. I am 25 years of age and staying with my brother and sister-in-law. After receiving the speed post I was in a state of shock. Then I decided to challenge the divorce and file a petition in the Supreme Court challenging this type of annulment.”

This is the testimony of Aafreen from Rajasthan to Bhartiya Muslim Mahila Andolan (BMMA), which has been at the forefront of the legal battle against triple talaq. The story of Aafreen resonates with the story of Shayara Bano that has been hitting the national dailies for her petition in the Supreme Court seeking a complete ban on triple talaq system prevalent among Muslims in India in accordance with the Muslim personal laws. Over the years, numerous Muslim women have approached the apex court with similar petitions that have time and again given an opportunity to commentators to be a party in the need to reform them.

However, this has laid ground for a pitched battle between those who are seeking reforms in the Muslim personal law and demanding complete abolition of the triple talaq system in India with those who are opposing any ban being imposed on the triple talaq system citing its origin in the Sharia laws.

Speaking to TEHELKA,  president of the BMMA, Zakia Soman said, “There is no mention of triple talaq in the Quran, and there has been an emphasis on the time period in the proclamation of divorce and hence the system of triple talaq should immediately be brought to a halt. Even in countries such as Pakistan or Bangladesh where Islam is the State religion, triple talaq is not legal. A large number of victims of the triple talaq are economically deprived women with no education or means to support them. The worst is the case of Nikah Halala. How can you force your own wife to marry another man?”

muslim women

But, on the contrary, organisations like Muslim Personal Law Board believe that it has its derivation from the sharia law despite it being considered a sin in Islam and some kind of final punishment should be imposed upon the man who commits this sin.

Zafaryab Jilani, the member of the All India Muslim Personal Law Board, defending the practice of triple talaq states, “The law is derived from the Quran and hadith and there is no business of us interfering into that.” He also cites that the number of cases of triple talaq has been dipping contrary to the claims of BMMA based on their research. However, there is no substantial data which can validate either of these claims.

In the midst of this crisis, it is important to note that instantaneous talaq or talaq ul biddat is far away from being applied to all the Muslims, as it is propagated. The Muslim society is not a monolithic community as it is believed and there are different schools of jurisprudence which includes four Sunni and one Shia school. Out of these only the hanafi school of thought allows for instantaneous talaq, something which has been widely missing from media reporting around the issue. People like Navaid Hamid, president of the All India Muslim Majlis-e-Mushawarat (AIMMM) points out at the historical root of the triple talaq system. “Hazrat Umar had pronounced the validity of the triple talaq with a rider that a man giving triple talaq to his wife be punished by 50 lashes so if lashes are not permitted in these times then there should be some quantum of punishment decided for the man. However, he leaves the matter into the hands of Muftis who are experts in Islamic jurisprudence to take a final call on the issue of triple talaq.

Triple Talaq

Citing an anecdote from the past, Hamid says, much before the case of Shayara Bano, a mufti who taught students at the Fatehpuri mosque was confronted with a similar situation. In that case, in a fit of rage, the husband pronounced triple talaq to his wife in the absence of any witness or adults. However, he later realized the gravity of the situation and wanted reconciliation with his wife. The case was heard by local maulanas of old Delhi who refused to consider triple talaq anything but irrevocable divorce. The distressed man came to the aforementioned Mufti, who following the commentary of Ibn Taimiyah ruled that pronouncing triple talaq at one go was as single divorce and it is revocable.

The ruling was derived from the interpretation of the quranic verses wherein a man might divorce his wife but it should be at the gap of one menstrual cycle between each pronouncement. And it can only be proclaimed during the menses-free period. It was followed by a waiting period called iddat, during which the couple can explore the possibilities of reconciliation. The sequence is repeated if the man divorces her after the second cycle and it is only after the man divorces the woman for the third time, the divorce which is irrevocable actually takes place.

This position has been time and again reiterated by the Indian courts. Fourteen years ago, in Shamim Ara vs State of Uttar Pradesh, the Supreme Court invalidated the system of triple talaq and pronounced that divorce has to be pronounced according to the Islamic injunction. The court said, “None of the ancient holy books or scriptures mention such form of divorce. No such text has been brought to our notice which provides that a recital in any document, incorporating a statement by the husband that he has divorced his wife could be an effective divorce on the date on which the wife learns of such a statement contained in an affidavit or pleading served on her.” In 2008, in Masroor Ahmad Vs State, the Delhi High Court pronounced that triple talaq should be deemed as single revocable talaq.

Amidst this fiasco, and the ongoing debate around the abolition of triple talaq what is missing is how would it impact the life of women living in a society, which is largely patriarchal, will things improve for these women in this set up even if the system of triple talaq is abolished ?

Filmmaker Anusha Rizvi, in her article published on a web portal, writes, “Shayara Bano’s divorce will certainly be overturned, but what difference would that make to her life? Here is a woman who doesn’t want a divorce but her husband has made up his mind to abandon her. Once the instantaneous triple talaq is revoked, he will divorce her by pronouncing it over a period of 90 days. The mode of divorce, therefore, is not as important as the consequences faced by the woman who is being divorced. Unless we are looking at banning all Muslim men from initiating a divorce altogether, the problem of women being deserted without proper maintenance will still remain as it does universally. Women stay in bad, abusive marriages for a number of reasons. They face societal and cultural pressure in the form of a stigma surrounding divorce. There could also be familial pressure, where members of the woman family refuse to help or support her in situations of marital distress. But it is financial pressures which often supersede any other consideration, especially when young children are involved. If our efforts are geared towards empowering and enabling Muslim women, especially those who tend to find themselves in the double bind of religion and culture, it will be worthwhile to study some of the protections that are already enshrined within the systems of marriages and divorce which are familiar to them and compatible with their beliefs. In putting all our efforts into banning triple talaq we are catching the wrong end of the stick.”

However, it wouldn’t be a surprise if the Hindu Right pushing for a Uniform Civil Code does not exploit the situation for its own advantage. A prominent BJP leader on conditions of anonymity told Tehelka that BJP and associated organisations will use the opportunity to its optimum level for building a consensus around Uniform Civil Code to be implemented all across the country which is majorly opposed by the Muslim organisations.

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Those campaigning against triple talaq don’t understand the religion at all

The Islamic countries have not banned triple talaq completely. They have rather made the process difficult, Kamal Faruqui, member of All India Muslim Personal Law Board, tells Asad Ashraf, Edited excerpts.

Kamal Faruqui4-Photo By Sanjay Rawat-Outlook

Why is the Muslim Personal Law Board opposing the abolition of triple talaq despite other Islamic countries having banned it?

Your question is factually wrong; the Islamic countries have not banned triple talaq completely rather they have made the process difficult. We at the Muslim Personal Law Board believe that the issue of triple talaq flows from the Quran and sharia. However, it is important to note that according to Islam, divorce has never been encouraged and has always been considered as a last resort. But at the same time Islam is the only religion where there is an honorable exit route; keeping this in view the provision of divorce was introduced in Hindu marriage bill. In Christianity, the pope has been time and again saying that divorce should be allowed. Islam, however, believed that divorce is a very natural thing and it can be sought because of a lot of reasons and thus it gives the provision of divorce.

But initiating a process of divorce isn’t that easy for a woman as it is for man.
According to Islam, it is the responsibility of the husband to take care of all the needs of his wife. However, this should not be misunderstood that she is in anyway inferior to man, she has been given equal rights and the husband cannot force her for anything, so much so that if a woman does not want to breast-feed the children, she cannot be forced to do so. So when it comes to Talaq or divorce the man has the right to initiate easily because he has more responsibility but that again does not mean that a woman cannot ask for a divorce, she can also seek khula for which she will have to go to the court.

You have been talking about model Nikahnama. Please throw some light on it.
Keeping everything in view, we want to make the process of immediate triple talaq very difficult. So we have been asking our brothers and sisters to follow a model Nikahnama. There should be a document of Nikah and as marriage is a contract in the Muslim community so like any other contract conditions can be put in this contract called Nikahnama as well, putting a condition of arbitration in it. It is also mentioned that the divorce should be the last resort and one should strictly prohibit the practice of triple talaq.

Those who have been campaigning against Triple talaq often cite that there is no mention of triple talaq in Quran. What do you have to say about that?
These people are ignorant. And pardon me, those who have been campaigning against triple talaq do not understand the religion at all. An organisation which claims that it has approached fifty thousand people in a survey and based on which it says that 92 percent of women are against the practice of triple talaq should first reveal their own background. It is a matter of faith and Iman and those who want to deviate from it are not forced to follow it. There are many people who marry under the Indian Marriage Act are not subjected to Muslim laws. Everyone has their own choice.

Those who have a moderate position on this issue cite that a man pronouncing triple talaq should be punished with 50 lashes. What is your position on this?
We say that it should be brought under IPC.  Something that we consider as wrong can either be made punishable or be discouraged. We are discouraging it by making it more difficult.  We have so many publications which discourage triple talaq. But we cannot snatch away the freedom which has been given to a woman. Now consider the case of Shayara Bano, she was mishandled by her husband, was forced to abort and these are punishable under Indian penal code. Now, Shayara has been saying triple talaq should be banned. If her petition is accepted she will have to live with the same brutal man. Is it advisable? What are we demanding then? Are you sending the woman who has been freed to the same man again?

How do you think the Hindu right which has been pushing for the uniform civil code will exploit this situation?
They will not be benefited by it; they will be trapped in their own net. They might be successful in creating problems for Muslims, might gain political mileage but ultimately will not be able to deal with their own contradictions. Why have they not formed a committee for it after being in power for two and a half years?

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Lifting the veil by Mudit Mathur

dharna

With the empowerment of educational resources and revolution in communication in India, the silently growing movement of Muslim women to seek justice from arbitrary and discriminatory personal laws relating to ‘Talaq-e-Biddat’— Triple Talaq instantaneously has started gaining momentum all over the country. Lifting the veil of ignorance now, Muslim women are coming out openly against their humiliating and discriminatory personal laws. This struggle for justice has a unique potential to become a major political issue in forthcoming elections.

The RSS, the parent ideologues of Sangh Parivar, who are considered to have final word for BJP’s policy making matters, have already put their committed workers (including Muslim women) on the job to unite Muslim women against such dictatorial attitudes of their hardcore “Ulemas,” clerics, who are supporting such a practice despite knowing fully well that “Triple Talaq in a go” has no foundational support from their Holy Book “Quran.”

At least 22 Islamic countries, including Pakistan, Bangladesh, Saudi Arabia, Iraq have already banned and abolished this discriminatory practice which is also not in conformity with the Constitution of India that gives equal rights to its citizen including Muslim women who are the worst sufferer of such evil of Muslim society in India. With the growing sensitisation about their plight in our society, recently the Indian Supreme Court entertained a writ petition of such victim Shayra Bano of Uttrakhand challenging the validity of this system her fight is not just restricted to unilateral divorce but also demands a ban on the practices of “nikah halala” and polygamy.

It is the first case to raise such patriarchal practices among Muslim community as violations of a woman’s fundamental Constitutional right to equality before the law irrespective of gender or religion. She prayed the Apex Court to declare that the Section 2 of Muslim Personal Law (Shariat) Application Act, 1937 as unconstitutional being violative of Articles 14, 15, 21 and 25 of the Constitution of India as it validates ‘Talaq-e-Biddat’, Nikah Halala and polygamy. “Triple talaq” allows a Muslim man to divorce his wife by merely uttering the word “talaq” (divorce) three times, all in one go.

Now with the technological advancement, new phenomena is seen that even husbands are increasingly divorcing their wives through text messages on Facebook, WhatsApp, emails and telephonically, leaving the woman with no rights to maintenance. If the husband is later willing to take back the divorced wife, she is forced to go through Nikah Halala – a practice that allows her to return to her first husband only after marrying another man, consummating the marriage and then divorcing him.

Shayra Bano was married to Rizwan Ahmed in Allahabad district of Uttar Pradesh in the year 2001 and despite domestic violence for dowry, her marriage continued for 14 years and had a son and a daughter from the wedlock. Suddenly he packed her back to her maternal place in Kashipur in Udhamsingh Nagar, (Uttrakhand). She was subjected to inhuman tortures and forced to have six to seven abortions. Now the Court has issued notices to seek their response from Minority Development, Women and Child Development, Law and Justice Ministries of Union of India and National Women Commission including her husband Rizwan Ahmed. Similar matters are being coming up before Apex Court as the only ray of hope for justice as political masters are using Muslims as a vote bank and any modernised rational thinking among them could pose a threat to their survival. Shahbano case is its example when the congress government overturned Supreme Court verdict just appease Ulemas and Moulvis by resorting to the amendment in Constitution.

Time has changed now with the modern approach and education empowering Muslim women who have started uniting themselves. The mindset of even well-educated Muslim young man is no different as compare polluted by orthodox Muslims under the influence of Ulemas. Recently a shocking case of an Associate Professor of Aligarh Muslim University Dr. Rizwan Khan of Electricity Engineering Department came to light, who has been alumnae of AMU and done Ph.D., M.Tech, and BTech from AMU. He married one of his student Shabana Khan, who was pursuing an engineering degree in electrical in 2005, after falling in love with her. Shabana started her career in designs in some company located at Green Park area of Delhi where Dr. Rizwan Khan frequently came to continue his courtship. Shabana’s brother resides in Dubai where he wanted his sister to come and take employment. Shabana told this fact to Dr. Rizwan who in turn offer her to marry him.

Talking to Tehelka from Aligarh Shabana told her marriage was solemnized with all fanfare with all rituals and dowry. His brother foots the hotel bills for the marriage party brought by Dr. Rizwan. Narrating the story of her exploitation Shabana broke down into tears, “One day Rizwan sent me an empty envelope to his engineer wife Sabana Khan under the refuse of ‘Talaq-e-Biddat’. Shabana, the mother of two small daughters, contests his claim saying, “He never gave me divorce as even after the date of alleged divorce he continued to live with me and took me to various Restaurants for dinning out. Though I was subjected to domestic violence and unduly suspected for having relations with boys on facebook and other social sites I suffered silently in the interest of my small daughters. He never paid me any Mehar or Iddat money.”

Though Shabana met and complained the Vice Chancellor, Chairman, dean, and registrar about the indulgence of Dr. Rizwan into domestic violence and sought their help but they all washed off their hands saying that since the matter is in the court they can’t help her out. Shabana is now entangled in the legal battle to get back the custody of her minor daughters, due maintenance in accordance with her status and a flat. Mediation efforts are on at the initiative of High Court but no result has come out as yet. It will be resumed on 14 July 2016 again to explore possible compromise but Shabana has no hopes. “My husband had illicit relations with some of his close relatives even before my marriage and has started living with her along with my daughters and tutoring wrong facts into their innocent minds about me,” She alleged with pain.

Shabana expressed her solidarity with Shayra Bano who has become her rallying point for keeping on her fight for justice. They are uniting to raise their voice against polygamy and to favour uniform civil code to protect them from day to day sexual violence, harassment and threat of triple talaq.

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