Triple Talaq: Islam and secular contentions

Opini Diary – Farhana Ashique

 

One is almost sent into a frenzy while observing the current debates on the Triple Talaq, Nikah halalah and the ensuing drive for a Uniform Civil Code. As a Muslim woman, it does get surreal during moments of debates set by glaring misconceptions and uninformed and stereotypical notions of how we Muslims practice our faith in post independent India.

Although the petition for the ban was originally filed by the lawyer of a divorcee named Shayara bano, various women’s collectives like the Bharthiya muslim mahila Andolan, Bebaak collective (coalition of seven Muslim women’s group across India), All India Muslim Women’s Personal Law Board (AIMWPLB) etc. all claiming to be representatives of Muslim women in India have now joined the fray. Many have been actively involved in signature campaigns and call for the legal abolition of such ‘unquranic practices’ and a statist ‘secular’ intervention to bring about ‘reform’ of rulings within the preview of Sharia is called for.

There are some critical points to be considered before gearing up to join one of the many ‘progressive’ collectives which to me give some sinister vibes. First of all, in the context of this debate on Triple Talaq what we have to remember is that there are various landmark judgments by the courts in India that have already sought to restrict the right of Muslim husbands to annul their marriages arbitrarily through instantaneous Triple Talaq.Many who seem to be speaking for the ‘oppressed’ Muslim women today by going around with signature campaigns to ‘save’ them, fail to pay attention to the massive volume of case laws on this issue and the laboriously secured achievements of scores of Muslim women for well over a decade, through trial courts, high courts and even the Supreme Court.

The Shamim Ara judgment gives us a detailed procedure for Islamic divorce as per Quranic injunction: first, [before saying Talaq] there should be arbitration; there should be a meeting between husband and wife. (In Islamic law, arbitration is mandatory.) Then Talaq has to be pronounced in front of witnesses; then a period of Iddat follows and following that if there is no reconciliation, the divorce becomes final. Shamim Ara was not the first judgment that invalidates instantaneous triple Talaq, there was an earlier one from the Gauhati High Court in 1981 too.

As Feminist Scholar Flavia Agnes asks: ‘by petitioning the Supreme Court, the recourse advised to Banu is a lengthier one. Further, if SC does ban the triple Talaq, would Banu and thousands of other Muslim women like her not have to avail themselves of their rights in a local court?’. One needs to be suspicious of the recourse taken by the litigant rather than blindly sympathizing and valorizing the one woman who brave heartedly navigating her way through misogynists, is digging out the hidden patriarchal truths of her community as depicted in noisy newsrooms.

What seems to be happening today is that self-proclaimed ‘progressive’ Muslim women mobilizing themselves under the umbrella of the freshly formed collectives are suddenly having irreconcilable problems with the Shariah and the fact that all of this is surfacing just when UP elections are underway is deeply shady. It is sinistrous that instead of availing already available provisions everyone seems to be running to the court to file some litigation or the other pushing for the ultimate ban, the actualization of which will sound the death knell to the Muslim community of India through the slow and destructive intervention by the ‘secular’ state into the personal framework of Islamic jurisprudence and its autonomous working. Utterly unaware of the existing rulings on the area in the legal history of India, petition after petition are being filed for an urgent change of the supposedly ‘misogynist’ Shariah laws and the same right wing stereotypes of the suffering Muslim other are constantly being reproduced. In fact, the covered Muslim woman is seen as one who needs dire rescue by left/right alike lest she be eaten up by the dangerous men in her family and community. The hurried roping in of the ‘secular’ state who will now gift the glorious uniform civil code (UCC) is also part of this savior complex.

The rightwing center who is for all its glorious records on the Muslim community is doing a remarkable spectacle, suddenly showing concern on the plight of the Muslim woman and closes ears to everything except the idea of uniform civil code. It has asked the Law Commission of India to seek for a public vote on the implementation of the UCC in the country. It invited suggestions on “all possible models and templates” of a common civil code. In this context, one needs to note that The UCC is only a directive principle and not enforceable. The personal laws are protected by Article 25, 26 and 29 of the Constitution as they are acts done in pursuance of a religion. The Muslim Personal Law (Shariat) Application Act, 1937 was passed to ensure that customary law does not take the place of Muslim Personal Law. To quote the feminist scholar Nivedita Menon: “Uniform Civil Code has nothing to do at all with gender justice. It has entirely to do with a Hindu nationalist agenda, and is right up there with the beef ban and the temple in Ayodhya. A UCC is meant to discipline Muslims, teach them (if they didn’t know it already) that they are second-class citizens, and that they live at the mercy of “the national race” (the Hindu).”

In a welcome move, staunchly against the onslaught aimed at Shariah by the liberal/rightwing who push for a uniform civil code, around 82,000 plus (and counting) Muslim women have signed a petition which says that they are fully satisfied with all the rulings of Islamic Shariah, particularly, Nikah, Inheritance, Divorce, Khula, Faskh (Dissolution of Marriage) and Waqf and they vehemently oppose any statist intervention to their community matters. The link for the petition:https://www.change.org/p/all-india-muslim-personal-law-board-to-retain-muslim-personal-law-in-india-ھندوستان-میں-مسلم-پرسنل-لاء-کے-تحفظ-کے-لیے?recruiter=610527227&utm_source=share_petition&utm_medium=whatsapp

While one would concede that there are abuses of certain Islamic practices by some uninformed people ignorant of the exemplary prophetic tradition, it should be noted that there are ways of reorienting rulings within the bounds of Sharia. Many people engaging in the debate have grossly misinterpreted the Islamic law. Sharia is not a rigid and immutable ‘law of God’ based on unchanging texts written in the middle Ages. Understood and applied correctly, Sharia is an imminently flexible, dynamic jurisprudence that is fully compatible with the modern human rights framework. As Kareem Elbayar argues, ‘policy makers concerned with promoting reform in the Muslim world should cease attempts to impose an historically and culturally irrelevant model of secular governance, and must instead support indigenous efforts to reform and revitalize Islamic law.’

As in the Western modern legal framework, a given legal question can be decided based upon a combination of all the many sources of law and Islamic legal hermeneutics is the discipline of well qualified Fiqh scholars in the Deen not ‘secular’ Harvard Law graduates for whom Islamic jurisprudential tools of ijma,istihsan,Qiyaz,maslaha,ijtihad etc. might be alien. It is important to note the past cases on the Muslim personal law like in the Veerankutty Case (1956), the Madras High Court has cautioned that “we have, therefore, to administer without in any way circumventing or deviating from the original texts…it has to be remembered that courts are not at liberty to refuse to administer any portion of these fundamentally religious tenets even though in certain respects they may not sound quite modern”. The Supreme Court has to take rulings like such into account while deciding cases on MPL.The courts cannot decide the constitutionality of juristic opinions derived from divinely ordained texts of religious communities as it does not count under “law” as per article 13 of the constitution.

To conclude one can say that it would be naive to not see through the violent right wing agenda of slowly negating the presence of the Muslim community in India through such debates that on the surface seem to be only an innocent one for gender justice. It is essential to unpack the web of lies giving momentum to it.

 

Farhana Ashique is a graduate student of English Literature in Daulat Ram college Delhi University

 

Photo- Indian Muslim in Muradnagar, Uttar Pradesh on Feb 28, 2012. ( AFP/Prakash Singh)

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