By Dr. Sayeed Haroon
15 May 2013
A seminar in Jeddah organized by the Socio-Reforms Society addressed by Advocate Osman Shaheed and Aleem Khan Falaki
A successful seminar was held on “Why Talaq is easy, but Khula is almost impossible in Muslim Society?” one of the most burning issues at present in the Muslim society. It was attended by a large number of men and women at Shadab Hall of Jeddah on 10th May, 2013 after the Friday Prayers. The speakers reviewed the status of the real Islamic guidance, present norms and the Indian constitution on divorce rules. Qari Mohammed Abbas Khan recited Quran at the start of the seminar.
Aleem Khan Falaki, who is leading the socio reforms movement, emphasized that no other religion has descended or formulated rules about human rights, women’s rights and equitable social justice as clearly and justly as Islam. But, unfortunately, every community interpreted these rules according to its own convenience. In particular, the rules related to women have been drafted and being interpreted with full patriarchal manifestation. We bow down our heads with shame when we see Muslim women crowding police stations, Qazi’s offices, courts and advocates begging justice. It is perceived that the man is at liberty to utter the words of TALAQ and darken the future of the woman and children and that TALAQ is applicable instantly. However, if the woman wants to leave her husband, she has to face humiliation for months and years. In the husband-wife disputes, both are equally responsible, but it is the woman who is punished mostly. If the man has the right to dislike some acts of the woman, the woman too, being an equal human being, has the right to get reluctant due to some unpleasant acts of the man. This is not justice that the woman must bear with every unpleasant act of the man and the man gets the right to treat her like a servant and punish her for every act that is unpleasant to him and threaten to terminate her from the job.
There are many traditions as well as incidents in the life history of the Prophet Mohammed , (may peace be upon him) that shed the light on the gender justice and clearly reflect that there was equality in the cases of Talaq and Khula. A woman came to the Prophet (Pbuh) and complained that her husband, an Ansari, slapped on her cheek so intensely that her cheek got red. The Prophet (Pbuh) did the justice, called her husband and asked his wife to slap him with the same intensity as he did to her. In another incident, a lady companion asked the Prophet (Pbuh) for Khula from her husband. The Prophet (Pbuh) asked the reason. She kept silent. He asked if her husband’s character was questionable to which she answered that there was nothing wrong with his character as he was pious and God fearing. Still she pressed for the Khula and the Prophet (Pbuh) did not insist her to reveal the reason and awarded Khula to her. We find a saying of Hadhrat Omer RZL that “If the man divorces he must present the reason to the QAZI, but if a woman wants a Khula and she is not willing to present the reason, the QAZI must not insist and should award her the Khula. There are other incidents too in the history which reveal that the woman got the justice equal to men. But, in the contemporary Muslim Personal laws constituted by different communities, the man has been provided every convenience to divorce the woman. As a result, the status of the woman has been totally marginalized. She becomes like a slave or an employee whose existence depends upon the consent of the employer. He can divorce her even if he is drunk, in anger, jokingly or sick. The divorce is applicable immediately even if he gives Talaq e Ghaleeza, Talaq e Bid’at. Even his representative can divorce her on his behalf. She is separated instantly. He and only he has the right to have mercy on her and come back but she is not given such a right. The man is free and can go to have second or third marriage if he wants and there are no restriction upon him from the law. She is compelled to wander around to prove he was right or wrong. The woman does have the right to terminate the Nikah on certain conditions, but all the conditions are conditional to the husband’s consent on separation. Unless he signs to give his consent, the Khula is not considered valid. In the Indian Muslim Personal Law, there are 42 clauses in favor of Talaq and only 4 in favor of Khula. Ironically, all the four clauses carry the condition of husband’s consent on the Khula. It is nothing different from the Hindu beliefs that “Jis Ghar Men Doli Jaae Wahan Se Dola Uthhe”, or “Shaadi Atoot Bandhan Hai” , or “Shaadi Zindgi Men Ek Baar Hoti Hai”. Although, the Hindu society is giving up this practice, but the Muslim society is still holding these beliefs firmly on the pretext of Shariya law. They practice the same Hindu beliefs and go on taking revenge from the woman.
It does not mean that the woman is totally innocent. In most of the disputes, it is the woman and her family who bring the couple close to a breakup. But, again, the question is that if the man does not find interest in her, he has the right to leave her. Why does not she have the same right? Why is she roped around the neck? Why is she compelled to enforce Anti-dowry case, Police complaints, goons etc to terminate marriage?
Aleem Falki added that he was talking about those women who are victims of men’s revenge and suffering. There are hundreds of cases in which women harass the innocent husbands. It is not always that woman is only innocent. But, that is a different topic and be debated in another such forum. Since some pseudo-intellectuals raise the unrelated topics and divert the topic, rather kill the topic and therefore, he requested to adhere to the topic. He then raised the situation where thousands of men adopt the revengeful policy of hanging women and elaborated on it.
The present Indian Muslim personal Law was drafted in 1937. It was called Muhammadan Law or Indian Shariyat Act Article 224 of the Indian constitution guarantee application of these laws as far as Muslim personal affairs are concerned. It is to be borne in the mind that the Fiqh is not equal to holy Quran. The scholars of different time extract and expand the laws of Shariya according to the situation present during a particular time. It is inevitable that these laws can be amended, changed or scrapped, if the new circumstances emerge. It is the need of the hour to keep the laws competent to the prevailing circumstances. Maulana Minnatullah Rahmani, the founding member of Muslim Personal Board as well as the writer of several books on this issue wrote in his book “Muslim Personal Law” that the Masa’el are of two types. One, those issues which were never experienced by the predecessor scholars and therefore the Fiqh is silent on those issues. Second, those issues which have to be deliberated afresh under the changing situations. The time when the present laws were drafted, has changed completely. The time when these laws were drafted, the man was a real “Qawwam” (Protector or care taker of the woman) according to the Quran. He was not the receiver of the dowry or Tilak or dinners from the woman. The woman was not aware of the modern education, job or outside world. The anti-Islamic literature was not taught to her in the name of woman’s rights, feminism, equality and gender justice. Today, the man has inverted or rather subverted the teachings of Quran and Shariya completely. Now, he does not pay ‘Mahr’, but instead, collects dowry from the woman not only in the form of net cash, but also demands property, automobile etc. He grabs the salary, inheritance and belongings of the wife. He is engaged in illegitimate relations too. The divorce ratio is increasing alarmingly. In Kuwait it is 37%, Qatar 33% and Saudi Arabia 21%. In India and Pakistan, although it is 4-5% but the ratio of the strained relation or disturbed marriages is over 60%. In other words, every third house is affected by the hatred, court or police cases. The scholars (Ulema) are not able to carry counseling because the subject of the counseling, although emphasized much in the traditions, yet, it has been totally neglected in the syllabus of the Madrasa.
Aleem Khan Falaki presented the evidences from the writings of Maulana Anwar Shah Kashmiri, Allama Iqbal and Maulana Ashraf Ali Thanwi directing towards establishing Shariya courts. If impossible, they advised for establishing local committees of minimum 5 respectable local persons to go and work as arbiter. They warned that if the woman will not get justice, she will revolt and will go to the extent of marrying even with non-Muslims.
Aleem Khan Falaki pointed out that the “Nikahnama” (the marriage agreement) itself is faulty. The word “AQD” implies an agreement by the two parties on whatever is taken or given. Since there was never a dowry, except Mahr in those days, so there was nothing to write from the woman’s side what she is giving. Therefore, the Nikahnama had the mentioning of only the Mehr’s amount. But, the time has changed now. The woman is compelled in the name of the system to give a lot. Since the Muslim Personal Law permits the woman to take back all those gifts given at the time of marriage, there should be a clear mentioning of all those gifts she is taking with her to the house of her husband. But, the man today does not agree to sign the receipt of these items as he is too clever and knows that there are hundreds of parents who can pay huge dowry without taking a receipt. So the woman is totally helpless. The Muslim Personal Law Board must take action and draft a new Nikahnama. It should also define clearly what is considered as gift. The present day’s dowry system is totally Haraam as it is a bribe, begging, blackmailing and violation of Quranic instructions as well as the way of the Prophet (Pbuh).
Maslehuddin Ahmed presented an introduction of the honorable guest, Advocate Osman Shaheed. Maslehuddin Ahmed is well known in Jeddah for his religious as well as community services. Maslehuddin stated that the Adv Shaheed is not only a successful and well known advocate in Hyderabad but also a kind hearted person who has served hundreds of helpless people for their education, marriages of poor girls etc. He had been the Prosecutor General of Andhra Pradesh High Court for 6 years.
Mr. Osman Shaheed expressed deep concern over the present lawlessness among Muslims in the matters of Khula and Talaq. He stated that even the Muslim lawyers in the courts deliberately misquote holy Quran to win fake cases of Talaq for their clients. He emphasized that the holy Quran is the “Mother of all the charters” and all the present charters of national and international humanitarian institutions are extracted from Quran. He asserted that the real worship of Allah is in having justice in the relations. He quoted several examples from the Prophet’s (Pbuh) life as to how he treated his wives.
Regarding the Khula/Talaq situation, he offered a solution, which was highly appreciated by the audience, that there is a possibility of solving these issues without involving courts and police. The Indian constitution itself grants the right to solve disputes in accordance with Shariya. He said there was no need to establish the separate Muslim Shariya courts as whenever such attempts were made in the past, the communal Hindu parties like RSS and BJP started the propaganda that the Muslims were trying to create another Pakistan.
He said that according to the Indian constitution, the two parties i.e husband and wife, could appoint a person of their choice who is called an “Arbitrator”. No special qualification is required to be an arbitrator. Anyone, who is approved by both parties, can become an arbitrator. Both the parties must submit an “Affidavit” in the court that they will honor the decision of the arbitrator even if he goes against their wish. Whatever the Arbitrator will decide, the decision will be endorsed by the court as “Order of Law”. The parties can get an “Execution order” too from the court to implement the decision of the Arbitrator. Since Mr. Osman Shaheed himself is running an Arbitration office which is serving people free of cost, he gave his telephone number to the audience to take his free legal services in this regard.
Aleem Khan Falaki suggested that an Arbitration office be established with a list of arbitrators consisting of scholars and Mufties belonging to various schools of thought. The conflicting parties can choose the scholars according to their Maslak and beliefs. Let the people get their disputes solved in our own offices instead of non-Shariya courts.
The two and half hour’s seminar concluded with the questions and answers session. The Prominent personalities of Jeddah participated in this seminar. Among them were Shameem Kausar, Syed KhajaViqaruddin, Engr. Sayeeduddin, Engr. Khalid, Dr. SayeedHaroon and Hafez Sheikh Hussain.