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Islam, Women and Feminism ( 13 Apr 2017, NewAgeIslam.Com)

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Triple Talaq, Indian Constitution and Counter-Affidavit Filed by Muslim Personal Law Board



By A Rahman, New Age Islam

13 April 2017

The honourable Chief Justice of India, Jagdish Singh Khehar has recently taken some commendable and unprecedented steps. The most important step is his reducing the summer holidays of the fifteen judges and setting up the three benches—each comprising of five judges—in order to settle the three constitutional cases holding the national significance; which is considered to be pending for long, otherwise.

The most important of these three cases is the petition filed on the subject of triple Talaq, Nikah Halala and polygamy. The title of this petition is Shayara Bano v. Union of India. Under Articles of Indian constitution 14, 15, 21, and 25, this petition has challenged the constitutionality of the three issues; triple Talaq at one go (giving Talaq three times on one occasion by pronouncing Talaq, Talaq, Talaq), Nikah Halala (which involves a female divorcee marrying someone else, consummating the marriage and then getting a divorce in order to make it allowable to remarry her previous husband) and polygamy (having more than one wife at the same time).

This petition was filed under the Article 32 of the Indian constitution, according to which, the Supreme Court has full authority over issuing special writ for rejecting any social, religious or legal ceremony, ritual or tradition, declaring them unconstitutional. It goes without saying that the entire controversy focuses on “women rights in Islam”, and the commands related to the Quran and Hadees will be discussed under the right to freedom of religion and fundamental rights of the citizens and particularly legal equality, as defined by the Indian Constitution.  

All India Muslim Personal Law Board filed an impleadment application. The Supreme Court approved it and allowed the board to offer a counter-affidavit. In response to the 33-page petition of Shayara Bano, the AIMPLB filed the 70-page counter-affidavit. But after reading this counter-affidavit, the person having the knowledge of Indian constitution or Islamic laws can do nothing except for feeling severe regret. As a legal document, this affidavit is extremely whispering and unable to be heeded. It holds contradictory statements. If the Court puts the potential questions about these contradictions, no lawyer will be able to reply. Nor will they be able to explain these discrepancies.

Prior to mentioning augmentation and irrelevant points stressed in the affidavit, it is worthy to note that these three prevailing practices under Islamic laws; such as triple Talaq, Nikah Halala, and polygamy are the biggest targets of critics of Islam. As for the clerics of Islam, they have not yet given any convincing explanation or any legal legitimacy about these three issues.

The Affidavit was presented by Mohammad Fazlurrahim, who is the Secretary of AIMPLB. He gives the justification behind presenting the affidavit merely by stating that he has read the copy of the Writ petition along with the annexure appended thereto and that the Board has authorized him to act on its behalf in the present proceedings. In such a delicate and complex issue, the authority of presenting the affidavit is usually given to the person who is expert in the subject and relatively proves his eligibility. It is also not mentioned in the affidavit that it has been prepared in accordance with the high profile clerics of Islam; which was necessary in this case. With regard to the respondent, no claim of legal knowledge or expertise has been made. Plainly it can be said that this legal response based on the rulings of the Quran and Hadees has got no written confirmation of any seal of authentic clerics of Islam. But rather, this affidavit has simply made judicial precedents on the key legal points.

One example is mentioned in the second paragraph of the response, in which, it says, the Supreme Court has already taken the view in so and so cases that “as questions arising in the present petition do not fall within the judicial preview”. Then it also says that this affidavit, thus being short and limited in its scope, should not be deemed to be exhaustive, and if necessary or the court seeks further reply, the detailed additional answer will be presented.

On the issue of triple Talaq, a very strange and contradictory answer was made. In Para 6, it states that since the petitioner's petition is based on misinterpretation of law and unable to be heeded, it should be dismissed, because “the Honourable Court has already dealt with the said issue and placed explicit measures to check this practice by laying down the down test of “reasonable cause” and “prior reconciliation” in Shamim Ara v. State of UP (2002) and that the principles laid down in Shamim Ara are the law as declared by this Honourable Court and as such a binding precedent”.

However in the second sentence, the affidavit also says that the decision of the Court in Shamim Ara’s case does not correctly reflect the principles of Shariah law on the subject. (This affidavit also acknowledges that the Muslim Personal Law board was not the party therein and says “it duly reserves its right to take appropriate proceedings for curating observation/ratio of the decision in Shamim Ara’s case. (How long will it reserve?). it is also submitted in the next paragraph as to why the petitioner, Shayara Bano did not challenge the divorce under the tests laid down by the Supreme Court in Shamim Ara’s case. It is the worst example of contradiction after contradiction. Moreover, in such a critical issue, the affidavit submits that Shayara Bano should have exercised her rights under the Muslim Women (Protection of Rights on Divorce) Act 1986 and “her allegations made in the petition per se amount to domestic violence for which the petitioner could have availed of remedies provided under the Protection of Women from Domestic Violence Act 2005”.

The affidavit openly declares that Talaq-e- Bidda (triple Talaq at one go) is based on the Quran. On this the print media and social media have condemned AIMPLB in the harshest tones. The websites like Firstpost have described the Board as anti-Quranic party. It is also worthy to note that Talaq-e-Biddah, according to Ahle-Hadith and Shias, is considered to be forbidden [Haram]. Many members of the Board are Ahle-Hadees, but despite that, the affidavit does not mention it. 

The experts in Muslim laws such as Amir Ali, Faizi, Hidayatullah and Tahir Mahmood have declared triple Talaq as un-Islamic. Currently this sort of Talaq is prohibited in 25 countries. The Supreme Court of Pakistan has also condemned in the strongest terms the process of triple divorce and fully dismissed it. This is a historical fact (and no Islamic clerics differ on this) that Hadhrat 'Umar –May Allah be pleased with him- used to set up Hudud [punishment for crimes] on those who practiced the triple Talaq.

In this short write-up, t is not possible to complete the review and legal analysis of Shayara Bano’s petition and the counter-affidavit filed by Muslim Personal Law Board. But the key points that prove hollowness of the affidavit, insincerity and mental bankruptcy of the Personal Law Board are listed below:

First, we need to take into account that the AIMPLB did not try to interfere or become the party in the precedents of the Supreme Court mentioned in the affidavit; therefore the fixed principles and legal instructions in such precedents will be deemed to be recognized by the Board.

The Court may ask the questions; why did the AIMPLB not raise any objection to several decisions made on matters such as Talaq, Tahkeem and maintenance of the divorcee? And Now the Supreme Court intends to give the legal authority on these decisions, then why is the AIMPLB making an objection to it? The Board will not be able to answer such questions.

Now Let Us Look At The Points Raised In The Affidavit:

1.       “The questions raised in the present write petition (of Shayara Bano) are matters of legislative policy”. (What it means is not clear; however the Supreme Court has authority over reviewing the legislative policy)

2.           “Article 44 of the constitution of India which envisages a Uniform Civil Code is only a directive principle of state policy and is not enforceable.” (It is improper to mention Uniform Civil Code here because it has nothing do with the petition.

3.       “The practices, sought to be reviewed by way of the present petition are protected by Articles 25 and 26 read with Article 29 of the Constitution of India.” (This shows its ignorance of the Constitution.  The sub-clause of Article 25 (1) says, the freedom of religion is “Subject to public order, morality and health” and its second sub-clause (2) says, “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law”.)

4.       “Unique importance has been attached to religious scriptures in the Indian legal system and in Indian culture.” (This is not a legal argument. Various practices, traditions and customs of religions including Hinduism have been dismissed and even laws have been made against them)

5.       “Muslim Personal Law provides for the practices to be followed on the issues of marriage, divorce and maintenance and these practices are based on holy scriptures—Al-Quran and sources based on Al-Quran” (But on such issues the Courts have given dozens of decisions that opposed Muslim Personal Law Board; and these decisions were never challenged by the Board) 

Referring to the Muslim Personal Law (Shariat) Application Act, 1937, in the 17th paragraph of the affidavit, it is submitted that this Act “gives primacy to the Sharia Law in respect of the subjects enumerated in Section 2 thereof irrespective of the contrary customs and usages.” But no explanation was made about the Shariat and the maslak [school of thought] that followed it; so this led to various problems. 

In addition, the British government made that law on the advice of those ‘ulemas’ whose knowledge or personal character can be estimated by this event that they deprived the daughter of the inheritance right in the agricultural land. For its reformation, the Muslims Personal Law Board has held several inconclusive seminars. It is a pity that All India Muslim Majlise Mushawarat (AIMMM) which is considered to be a serious and sincere organization has been quiet on the subject of this affidavit, while this subject is being debated in meetings and gatherings. It was the Majlise Mushawarat that established the Muslim Personal Law Board. 

Therefore it is incumbent upon the high profile clerics of Islam that they break their silence, combat against the political propaganda being played by AIMPLB and some of its Maulvis and guide the community towards the right path. Moreover, Muslim intellectuals should come forward and play the leading role in freeing the community from stereotypes and backwardness, because recently Muslims are still as backward as they were before fifty years ago.

Otherwise; Hamari Daastan Bhi Naa Hogi Daastano Me (Our story will not exist in the stories)

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