Quran and the Hadiths Might Offer Evidence To The Contrary, but the Ulema Refuse To Let Women Exercise Their Rights in Matrimony and Divorce
By Ziya Us Salam
November
29, 2022
The Quran and the
Hadiths Might Offer Evidence To The Contrary, but the Ulema Refuse To Let Women Exercise Their Rights in Matrimony and
Divorce
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A
formidable section of Muslim clerics is once again leading the community to the
cliff with their loud and lopsided pronouncements on Khula, a Muslim woman’s inalienable right to divorce. In a step
that reeks of patriarchy, the Ulema
feel a Muslim woman, once she enters into a Nikah with a man, has no way to
dissolve the contract unless the man divorces her or agrees to her proposal for
Khula. The third way is Faskh or judicial divorce. Even if the
man inflicts violence, tortures her for dowry, and stops her from meeting her
parents or fulfilling her professional dreams, she cannot end the marriage
unless he consents to Khula.
File photo of members of the All-India Muslim
Personal Law Board after a meeting in Lucknow. | Photo Credit: Rajeev Bhatt
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Monopoly of Men over Islam
The Ulema’s interpretation of women’s right
is questionable, even provocative, just as it was with instant triple Talaq,
before the Supreme Court stepped in to restore paramountcy of the Quran over
the perceived decision of Caliph Umar. In the Talaq case too, the Maulanas had
insisted on the right of men to end a marriage with the pronouncement of triple
Talaq at one go. That dozens of Muslim countries did not approve of this method
of divorce did not matter to many Indian clerics. And that the Quran, which
talks of divorce options and procedure through select verses of Surah
Al-Baqarah and Surah At-Talaq, does not mention instant triple Talaq anywhere
was cast aside as a matter of interpretation. It was left to the court to
invalidate instant triple Talaq in 2017. The judges quoted verses from the
Quran and works of Islamic scholars to buttress their point. The Ulema squirmed, but fell in line.
The judiciary
may have to draw the Ulema’s
attention to the Quran and Hadith all over again as the wise scholars seek to
resume their hold over religion with their take on Khula. Virtually turning Islam into a monopoly of men, where every
action, right and privilege of women is dissected and scrutinised by the Ulema, the All-India Muslim Personal Law
Board (AIMPLB) recently opposed the Kerala High Court’s verdict on Khula. On a review petition, the court
said, “In the absence of any mechanism... to recognise the termination of
marriage at the instance of the wife when the husband refuses to give consent,
the court can simply hold that Khula
can be invoked without the conjunction of the husband... This is a typical
review portraying that Muslim women are subordinate to the will of their male
counterparts... [it] appears to have been fashioned... by clergies and the
hegemonic masculinity of the Muslim community who are unable to digest the
declaration of the right of Muslim women to resort to... Khula, unilaterally.” This verdict was reminiscent of an essay,
‘Extra-Judicial Khul Divorce in
India’s Muslim Personal Law’, in which Sylvia Vatuk wrote, “The 1917 Ottoman
Law of Family Rights was the first to enable women, under certain
circumstances, to obtain divorce in a court of law. Since then, most countries
that apply a version of Hanafi law... have loosened, modified, or struck down
those provisions that require a wife to obtain her husband’s permission to
divorce him. India did this in 1939 with the passage of Dissolution of Muslim
Marriage Act which allows a Muslim woman to divorce an unwilling or unavailable
husband in a court of law.”
To the
AIMPLB, the Kerala High Court judgment amounted to the court exceeding its
brief of merely being an interpreter of the Muslim Personal Law (Shariat) Application Act, 1937. The man,
the AIMPLB reiterated, reserves the right to accept or reject a Khula proposal mooted by his wife. In
other words, a woman cannot leave an unhappy or abusive marriage unless the man
lets her go.
This
reasoning is removed from the ground reality in India. Here, most Khula cases are moved when the woman has
either been asked to leave her matrimonial home or moves in with her natal
family to avoid the harassment that comes with living with an estranged spouse.
In both cases, the man has little incentive to give his consent to Khula as he can simply marry another
woman. If denied release through Khula,
such women could simply be abandoned.
A Clear Divorce Procedure
It is
precisely to put an end to unhappy or violent marriages that the Quran outlines
a clear divorce procedure, whether initiated by a man or a woman. Through Verse
229 of Surah Al-Baqarah, the Quran gives woman the right to end a marriage if
she gives something in lieu of her freedom. In other words, she has to
surrender her Mehr for divorce through Khula.
In Islamic history, there is a well-documented case of a woman, Jameela,
seeking the Prophet’s advice to end her Nikah with Sabit Bin Quais merely
because she didn’t like his looks. The Prophet asked her to give the man
something in return. She surrendered her garden upon which the Prophet asked
the man to give his consent. The Prophet did not seek the man’s permission or
give him the option of saying no. Importantly, while in a case of Talaq, the
spouses are instructed to live together after the first and second
pronouncements so that there is a chance of reconciliation, the woman has to
leave her husband’s house immediately in the case of Khula. This is done to avoid any assault by the man who is no
longer her spouse.
Apart from
the AIMPLB, scholars of Imarat Shariah too reiterate the idea of a man’s veto
over Khula. It is this insistence on
male superiority that has driven many woman members of the AIMPLB away from its
portals, and left other women of the community in the lurch. The holy book and
the Hadiths might offer evidence to the contrary, but the Ulema are in no hurry to let women exercise their rights in
matrimony and divorce. Khula has tied
the Muslim clerics in knots.
Source: Khula Ties The Muslim Clerics In Knots
URL: https://newageislam.com/islam-women-feminism/quran-hadiths-ulema-women-matrimony-divorce/d/128522
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