By Sultan Shahin, Editor, New Age Islam
14 May, 2016
Pakistan reformed Muslim personal laws more than half a century ago, while Bangladesh, after its independence from Pakistan, has instituted further reforms.
Muslim personal law is once again facing legal challenge. But most ominous for the self-declared guardians of Islamic Sharia in India is the societal challenge. Unlike the Shah Bano case three decades ago, Saira Bano’s plea now has many outspoken supporters within the community. Ulema from Muslim Personal Law Board are facing tough theological questions even on television debates. I myself asked a Board member to show in the Quran where it allows instant divorce even as “Isharat al-nas” (alluded/indicative meaning).
Faced with a barrage of questions, the ulema have now decided to challenge the progressive Muslims on their theological knowledge and more importantly, the courage, to stand up to their beliefs. At the same time, they are blaming progressive Muslims for encouraging courts to intervene, while taking their regular subversive position that courts and government should not intervene in matters of Muslim Personal Law as it is a matter of faith.
Rather than being cowed into silence or even dismiss this challenge as an effort to obfuscate matters, progressive Muslims should pick up the gauntlet and battle it out. This should be used as a great opportunity to breach the total stagnation that has prevailed in Islamic theological debates in the country. This will not only help the victims of our Anglo-Mohammedan Personal Law but also help open up issues related to violent extremism that is attracting our youth more and more in the absence of debate. For instance, accepting that triple talaq is not a part of Quranic teachings or even Hadith (sayings of the Prophet). A classical Muslim scholar, Hafeez Nomani, has asked if Quran alone is legitimate Islamic scripture and whether a bid’at (innovation) like triple talaq ordered by the second Caliph Hazrat Umar cannot be considered legitimate. He then goes on to ask that if triple talaq cannot be accepted, as it is a bid’at, then what about Quran, which in its present form is itself an innovation ordered by the same caliph and completed by the third Caliph Hazrat Usman.
These are among the issues that Muslims need to debate urgently for the wider good of the community as well as the nation and the world. We must never forget the solemn warning issued by Canadian scholar Winfred Cantwell Smith in mid-20th century that a healthy, functioning Islam is crucial for world peace. Clearly, the Islam today is not healthy and functioning. So it is not only the Muslims but the nation at large that should welcome an opportunity to debate and understand Islamic theological issues.
But first some facts related to the backdrop in which this debate is taking place. A victim of instant triple talaq, Saira Bano, has sought mandamus in Supreme Court declaring the practices of instant divorce called Talaq-e-Bidat, Nikah-Halala and polygamy under Muslim personal laws as illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution. The Muslim Personal Law Board has decided to oppose any move to scrap triple-talaq.
Saira Bano is not alone. A new study indicates that 92.1% of Muslim women in India want a total ban on instant oral divorce. The report was released by Bharatiya Muslim Mahila Andolan (BMMA). The report gives the following details: “Women are being informed of their divorce via telephone, text message, and even social media with reasons ranging from poor cooking skills to wardrobe and accessories choices under the current system.”
Among several progressive Muslim scholars, including from BMMA and New Age Islam Foundation agitating for reform in Muslim Personal Law, noted jurist Tahir Mahmood has also said that the triple talaq is an absurdity that militates against the words and spirit of the Quran and sayings of the Prophet.
In a comment on NewAgeIslam.com, Naseer Ahmed, a researcher devoted to Quranic studies describes the process of a Muslim divorce in this way: “The divorce process starts with a verbal divorce followed by a period of 4 months or three menstrual cycles during which the woman stays in her husband’s home. If during this period or before the actual physical divorce, if they cohabit the divorce is off. The actual physical divorce means living separately as a divorced couple after the final pronouncement of the divorce at the end of the 4-month period. The number of times ‘talaq’ is said is immaterial. It must be said at least twice with a gap of 4 months as described above. The final pronouncement should preferably be in the presence of arbitrators if the arbitration has failed to make them change their minds. They can reunite and call the divorce off any time before the final separation takes place and they start living separately as a divorced couple. Once the physical divorce has taken place and they start living separately, they cannot reunite except through a fresh marriage which has conditions attached. Any other process is not in accordance with the shariat of the Quran.”
Renowned Islamic scholar Javed Ahmad Ghamdi interprets the Quranic concept of divorce, explained in several verses, in the following words: “If a husband has decided to divorce his wife, he should first wait until she has completed her menstrual cycle and then desisting from any further carnal relationship, he should utter the divorce sentence just once. The wife, after she has been divorced in this way, must stay in her husband’s house for a period of three menstrual cycles... If after this period of Iddat, a man is still firm in his stance, his wife shall be considered as separated permanently. She is now a free woman and if she wishes to marry some other person, she has all the right to do so and must not be inhibited in any way.”
However, the issue is not just triple or instant divorce, but reform of Muslim personal law itself. Consequently, the demand should not be made only to ban the rampant tyranny of triple talaq. This is one of the evils emanating from the personal laws instituted for Muslims by the British. Hardly any Muslim in India follows the Quran-based practice of divorce in three stages, encompassing three menstrual cycles.
After Independence from the British, a united Pakistan had refused to accept the Anglo-Mohammedan Law and reformed its personal law in 1961. These reforms have passed the test of time. Pakistan has since gone through much upheaval including an era of Nizam-e-Mustafa under President General Ziaul Haq, in which even traditional pre-Islamic forms of punishment like whips and lashes and public flogging were practised. So what progressive Muslims in India should be and indeed have been demanding for long is reforms in Muslim personal law itself.
Reform of Muslim personal law is the need of the hour. A demand for this has been made for decades in conferences, seminars and marches, organised by several progressive Islamic organisations including New Age Islam Foundation. These demands need to be intensified and peaceful demonstrations organised on a large scale, demanding that the government reform these laws. It will inevitably be opposed and equally inevitably expose the two-facedness of Islamic fundamentalists in the country. This would lead to a much needed debate on the hypocrisy of our ulema.
It is for Government of India to take a call in the matter. Why should Indian Muslim women not deserve the protection of Islam provided to their counterparts in Pakistan, Bangladesh and elsewhere, practically in the entire Islamic world, except Saudi Arabia? Countries like Egypt, Iran, Jordan, Morocco, even Yemen and Sudan have more modern Muslim personal laws. Why should Indian Muslims suffer the indignities imposed by the British under an Anglo-Mohammedan law? Particularly so as the Muslim-majority countries formed as a result of the unfortunate partition of the country have already thrown away the yoke of the British imposed personal laws. Indeed, Pakistan reformed Muslim personal laws more than half a century ago. After its independence from Pakistan, Bangladesh has instituted further reforms, making it a more modern country. Indian Muslims are the only one in the region lagging behind.
The government should forthwith promulgate a reformed Muslim personal law on the basis of President Ayyub Khan’s reforms in Pakistan in the early 1960s, though this too will require slight changes, particularly in the ages of marriage fixed for boys and girls fixed at that time. For the moment, I am not suggesting Moroccan or Tunisian reforms, though they are the latest and more modern, as this might give our ulema an excuse to claim fiqhi (jurisprudential) differences. But with Pakistan and Bangladesh we have no such differences. I am giving here a summary of the Ayyub Khan-amended personal laws. You will notice that even in these amended laws the marriage age is fixed at 14 for female and 16 for male. This must have been progressive for the time, perhaps even today in Pakistan. I hope that is not the case in India. But when Saudi Arabia allows girls to be married at one and for marriages to be consummated at nine, this certainly was progressive. But India should not accept that and the age of marriage should be fixed according to contemporary standards.
As the practice of instant triple Talaq is still followed in India, the most pertinent example to give from Pakistan’s Muslim Family Laws Ordinance, 1961, will be this section dealing with divorce. Let us see how it tackles the menace of instant divorce:
Section 7, Talaq:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever, contravenes the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
(3) Save as provided in sub-section (5) talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from day on which notice under subsection (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of notice under Sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.
(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in Sub-section (3) or the pregnancy, whichever later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under his section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
An idea of the scope of these reforms can be had from the following excerpts from an essay, Forced Modernization and Public Policy: A Case Study of Ayub Khan Era (1958-69) by Sarfraz Husain Ansari: “The Muslim Family Laws Ordinance, 1961 provided that marriages and divorces be registered; permission be sought from the court for second and subsequent marriage(s); divorce be effective only after it had been approved by the court; minimum age for marriage be fixed at 14 for female and 16 for male; and a grandson of a predeceased son be allowed to inherit property of his grandfather.
“The Ordinance is regarded as ‘the first step toward modernization of family life’ (Jr.,1975) and ‘the most progressive interpretation of Muslims family law to be implemented in the subcontinent’ (Rosenbloom, 1995).
“In addition to the Ordinance, the Child Marriage Restraint Act and Dissolution of Muslim Marriage Act were also enacted in 1961. It was only after outmanoeuvring the ulama that Ayub Khan had got passed the bill from the National Assembly. These Acts and Ordinance discouraged polygamy, protected the rights of wives and granted the rights of inheritance to grandchildren (Wriggins, 1975).”
Clearly some changes will have to be made even in the Ayyub Khan-amended personal laws for Muslims. But India should not tolerate these archaic and un-Islamic personal laws for Muslims. But, to my mind, the most important benefit would be the opening up of a theological debate within the community. This has already started to a certain extent. Maulana Khalid Saifullah Rahmani, secretary of the Personal Law Board has reacted sharply to the statement of Dr Tahir Mahmood and has called it a conspiracy for creating misunderstanding and breaking the brotherhood of Millat e Islamia.
The most dangerous and subversive statement that the maulana, however, makes is the following: “This issue is not related to the laws of the country but it is an issue related to Fatwa. Hence this issue should be dealt with by reliable scholars of Islamic jurisdiction.”
The maulana should understand that the Muslims are as much subject to the Indian Constitution and its interpretation by the Supreme Court of India as any other citizen. Muslim personal law is a part of the Constitution and the Supreme Court has every right to interpret it in the way it considers best. Progressive Muslims are not committing a sin by encouraging the courts to intervene in the matter. It is the right and duty of the courts to look after the welfare of the citizens in accordance with the Constitution.
A debate kick-started by personal law reforms may then provide us with the opportunity to take the issue of theological reforms to other areas too, which are far more important to the community and our religion. The personal law debate would bring out the obscurantism of our ulema to the fore. It would bring out their lack of concern for Islam or Muslims.
The stagnation, the total lack of any theological debate in the Muslim community has to be breached and broken. The stagnation suits the Islamist extremists who have a very coherent, well-designed, well-thought-out theology of violence and exclusivism, hatred and intolerance, as well as gender inequality and discrimination. This theology is also being taught in our universities and madrasas. I hope progressive Muslims will grab the bull by its horns and widen the debate. We have to virtually create, find acceptance for and popularise a new Islamic theology of peace, coexistence, inclusiveness, pluralism and gender equality.
This article appeared first in The Sunday Guardian, New Delhi.
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