By A. Rahman, New Age Islam
29 May 2017
The recently filed final affidavit in the Supreme Court by the All India Muslim Personal Law Board, purportedly with a view to end the triple divorce controversy, has in effect the potential of giving rise to more controversies, assuming that the Supreme Court will, on the strength of the undertaking contained therein, dispose of the petitions with the pronouncement that the problem has been solved and gender justice for Muslim women has sufficiently been ensured which was the basic objective of its suomotu registered petition titled “ Muslim Women’s Quest for Justice”. As for other petitioners, their lawyers have unanimously rejected the affidavit and its contents out of hand terming it “useless and an eyewash”. The document, drafted in the person of and signed by the Gen. Secretary of the Board, is made up of three brief paragraphs, the first containing a legal formality and the third listing the annexures. It’s the second paragraph that contains the Board’s undertakings etc. and is reproduced below:
“ I say and submit that the All India Muslim Personal Law Board will issue an advisory through its website, publications and social media platforms and thereby advise the persons who perform ‘Nikah’ (marriage) and request them to do the following:-
(a) That at the time of performing ‘Nikah’ (marriage), the person performing the ‘Nikah’ will advise the Bridegroom/Man that in case of differences leading to Talaq the Bridegroom/Man shall not pronounce three divorces in one sitting since it is an undesirable practice in Shariat;
(b) That at the time of performing ‘Nikah’ (marriage), the person performing the ‘Nikah’ will advise both the Bridegroom/Man and the Bride/Woman to incorporate a condition in the ‘Nikahnama’ to exclude resorting to pronouncement of three divorces by her husband in one sitting.”
Annexed with the Affidavit are copies of the resolutions made by the Board on April 15 and 16 at its Lucknow session whereby it was proposed that a Code of Conduct for men regarding matters of marriage and divorce would be issued and punishment of social boycott would be meted out to men resorting to three divorces at one go.
Lawyers appearing for all petitioners rejected the Affidavit out of hand as being ‘useless’ and ‘an eyewash’. Senior Advocate and erstwhile Additional Solicitor General Ms Indira Jaisingh wondered whether any bride to be would dare discuss divorce at the time of solemnization of her marriage, if for no other reason than for the fear of scaring away the groom to be and the marriage being cancelled. Petitioner Shayara Bano’s lawyer raised the question of the legality of marriages where in the ‘Nikahnamas’ the conditional clause of non-resort to triple divorce was not included. But apart from any hypothetical questions which may and are bound to be asked, the fact remains that the Affidavit has not taken into account various social and legal hurdles which render it absolutely impracticable.
In reply to a question posed by the Constitution Bench hearing the matter the Board’s lawyers had admitted that ‘Qazis’ in the country were not bound by their advice or instructions, and now the Affidavit asserts that ‘advisories’ shall be issued to them. To what purpose? What will be the position if the advisory is ignored and the ‘Nikah’ is performed? Will it be an invalid marriage? And what if such a marriage is ended through triple divorce? Will the divorce be valid and marriage considered dissolved? And the most practical question is whether the Board has a list, not to speak of the addresses and contact nos. etc. of all ‘Qazis’ in the country.
This question becomes even more crucial when one is reminded of the fact that a Muslim marriage requires no religious ceremonies and/ or liturgical rituals for its solemnization. Almost any reasonably educated adult Muslim can perform a ‘Nikah’ between a Muslim bride and groom and it will be a valid and legally binding marriage for all practical purposes. The board whose members have been enjoying largesse received from Muslims all over the country and the political clout they have been wielding as a representative body of twenty crore Muslims of India for the past 44 years have not taken pains to educate the gullible Muslim masses on the point even of Muslim marriage, what to speak of divorce, and how both should be gone through in accordance with Sharia law.
And as far as a ‘Nikahnama’ is concerned, Muslim marriage is a social contract and Islam enjoins every contract to be reduced to writing and duly witnessed; point here being that any condition, unless it is immoral or against the basic tenets of Islam, can be incorporated in the ‘Nikahnama’. That includes right to divorce being delegated to wife at the time of Nikah.
The proposal to send advisories to ‘Qazis’ is useless considering the fact that the couple to be married can refuse to take the Qazi’s advice. Will the ‘Qazi’ refuse to perform the marriage in that situation? And if the marriage is after all performed without the advice being heeded and conditions being met will the marriage be invalid in the eye of law and as per Sharia?
As for the proposed punishment of ‘social boycott’ contained in the Affidavit, not only such a punishment be unconstitutional and illegal in view of the laws of land, it will be against the Shariat of Islam which is based entirely on the concept of ‘Jamaat’ which implies collective or community living and togetherness. The essential question here is under what law and by what authority can the Board prescribe “punishment’ to any citizen? And if prescribed anyway how will the same be enforced? Do they have a mechanism for such enforcement or have they planned to raise a religious police force on the model of Saudi ‘Mutawwa’, the most hateful and hated police in the whole world.
Furthermore, what punishments has the Board ever conceived for Muslims who indulge in greater sins than triple divorce, for instance, drinking alcohol, gambling and adultery (live in relationship) to name a few, all of which are legally permissible and widely practiced and enjoyed.
The holy Quran is considered to be a perfect Code of Conduct for all humans. Nobody cares to follow that in toto. Who will give a damn about the Board’s Code of Conduct? This proposal is patently blasphemous because it implies that Quran lacks something which they will now fill in. The affidavit has been drafted mindlessly, but it clearly admits that triple divorce is not only undesirable, it is a punishable offence and in such a situation the practice is bound to be struck down as unconstitutional by the Supreme Court and criminalized by the Govt. through legislation.
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