Reform India's Muslim Personal Law, Breach the Stagnation in Muslim Religious Thought, Use the Opportunity to Work out A New Islamic Theology of Peace, Pluralism and Gender Equality
By Sultan Shahin, Editor, New Age Islam
15 August 2015
According to media reports a new study indicates that 92.1 percent of Muslim women in India want a total ban on instant oral divorce. The report was released by Bharatiya Muslim Mahila Andolan (BMMA), an organization led by Muslim women fighting for the rights of Indian Muslims.
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. As female Muslims don't have the same right under religious law, women are left vulnerable and insecure. With the widespread support of Muslim women, organizations like BMMA are pushing for the so-called 'triple talaq rule' to be banned in India."
However, the issue is not justof triple or instant divorce,
but that of reform of Muslim Personal law itself. Consequently the demand
should not be made only to ban the widespread practice 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.
In a comment
on New Age Islam, Naseer
Ahmed, a researcher devoted to Qur'anic Studies describes
the process of a Muslim divorce in the following 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 anytime 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 Qur'anic
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." (Full Text of this concept given below)
A united Pakistan had reformed its personal law in 1961 and these reforms have passed the test of time. Pakistan has since gone through much upheaval including an era of Nizam-e-Mustafa under President Ziaul Haq, in which even traditional Arab form of punishments like whips and lashes and public flogging were used. 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 Reform of Muslim Personal Law 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 the Islamic fundamentalists in India. This would lead to a much needed debate on the hypocrisy of our ulema.
It is for the 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. Egypt, Iran, Jordan, Morocco, even Yemen and Sudan have more modern Muslim Personal Laws than India. Why should Indian Muslims suffer the indignities imposed by the British in our land under an Anglo-Mohammedan law? Particularly so, as the Muslim-majority countries formed as a result of the unfortunate parturition of the country have already thrown away the yoke of the British imposed personal laws. Indeed Pakistan reformed Muslim Personal more than half a century ago. After its independence from Pakistan, Bangladesh has instituted further reforms, making it a more modern country. India is the only one in the region lagging behind.
The government should forthwith promulgate a reformed Muslim Personal Law on the basis of President General Ayyub Khan's reforms in Pakistan in early 1960s, though this too will require slight changes, particularly in the ages of marriage for boys and girls fixed at that time. For the moment, I am not suggesting Moroccan or Tunisian reforms, though they are latest and more modern, as this might give our ulema an excuse to claim fiqhi differences, Hanfi- Maliki- Shafei differences, etc., but with Pakistan and Bangladesh we have no such theological differences.
A debate kick-started by Personal Law reforms may then provide us an opportunity to take the issue of theological reforms to other areas too, which are far more important to the community and our religion. 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.
We have to virtually create, find acceptance for and popularise a new Islamic theology of peace, coexistence, inclusiveness, pluralism and gender equality.
The stagnation, total lack of any theological debate, in the Muslim community, just 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. Even Sufi madrasas today teach Syed Qutb on the pretext of teaching Arabic literature. They have abandoned Gulistan, Bostan of Sheikh Saadi, as they say Persian no longer brings jobs.
I am giving below 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 marriages consummated at 9, this certainly was progressive. But
India should not accept that and the age of marriage should be fixed according
to contemporary standards.
The following are some excerpts from an essay: Forced Modernization and Public Policy: A Case Study
of Ayub Khan Era (1958-69) by Sarfraz Husain Ansari∗ available at:
pu.edu.pk/images/journal/pols/pdf-files/Forced_Modernization%20-%204.pdf
"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 sixteen 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 grand children (Wriggins, 1975)."
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:
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.
Source: (http://lgkp.gov.pk/wp-content/uploads/2014/03/Muslim-Family-Laws-Ordinance-1961.pdf)
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.
----
Related:
"The Qur'anic Concept of Divorce"
Author: Shehzad Saleem based on Javed Ahmad
Ghamidi's interpretation
When a man and a woman marry each other, it is their utmost wish to
remain in this relation of wedlock forever. They are desirous of the fact that
the change in times not change their commitment to each other and only death
separate them in this world. But then, sometimes there does arise a situation
when part they must. Differences become so pronounced that it becomes necessary
to sever this relationship. If such circumstances do befall that a husband and
wife must separate permanently, Islam lays down a specific procedure for this
separation. In Islamic terminology this dissolution of marriage is called Talaq
(divorce). It says that both a man and a woman have an equal right to it. The
only difference is that a man divorces a woman while a woman demands a divorce
from her husband. In the following paragraphs, we shall attempt to explain the
Qur'anic concept of divorce.
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. This period is called Iddat. If a woman does
not have menstrual cycles owing to age, disease or any other reason, and still
there is a chance of pregnancy, then she must wait for three months. For a
pregnant woman this period is up to the birth of the child, while for a newly
married couple who have had no contact, divorce does not entail any period of
Iddat for the wife. According to the Qur'an, there are two basic reasons for
this waiting period: i) to ascertain whether a wife is pregnant or not so
that the lineage of the child does not remain a matter of doubt, and ii) to
give the husband and other family members a chance to rectify the situation,
for matters in which emotions and feelings run high, sometimes only time is
needed for recovery.
During this Iddat period:
(a) The husband cannot turn his wife out from the
house except if she is guilty of adultery, nor should she leave the house
herself.
(b) The wife, if she is pregnant, must not hide her pregnancy.
(c) The husband should continue to provide for her.
(d) A husband, if he changes his mind, can revoke his decision. The only thing
required, according to the Qur'an, is that he should call in two persons to
testify to his decision1.
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. If circumstances change, she can
even remarry her former husband. Furthermore, the Qur'an stresses that on this occasion
of parting it is not at all lawful for a husband to take back any property or
asset gifted to her(2). This, it must be kept in consideration, does not
pertain to mehr (dower) only, but to every type of gift given to the wife. Not
only should a husband not take back these gifts, he should, in fact, give her
something on this occasion of separation. Even if her mehr has not been fixed,
it is better for him to give her something. If the mehr has been fixed but the
divorce occurs before the husband and wife have had contact, he must return
half the money, unless the wife even forgoes this. In this case also, though it
is better that he should give her the whole money.
However, in case the husband revokes his decision during the Iddat period,
there is no need for re-marriage. The two shall be considered as husband and
wife once again. If after annulment of this divorce, due to some reason, the
untoward situation arises a second time that the husband intends to divorce his
wife, the Qur'an says that the husband can exercise his right of divorce for
the second time as well. He should pronounce just one talaaq sentence to
repudiate his wife. Again, the post-divorce period shall be observed in the
manner just described. Once again, if the husband wishes, he has the chance to
revise his decision during this period, in which case the divorce shall be
considered null and void and the two shall once again become husband and wife.
If, unfortunately, for the third time, the situation arises that divorce
becomes inevitable, the Qur'an says that a husband can exercise his right for
the third time as well and pronounce the divorce sentence. However, this time
the wife she shall be permanently separated from him. After divorcing his wife
for the third time, he cannot re-marry her now, unless and until, the wife
marries some other person and owing to some reason gets divorced from him --
not under a planned strategy, but on account of naturally arisen circumstances.
This last measure, actually, is meant to prevent this affair from becoming mere
childplay.
In the words of the Qur'an:
This divorce [in which the husband can revoke his
decision in the Iddat period] is permitted twice only. (2:229)
It is evident from these details that the Qur'an only
prescribes one divorce sentence and stresses that a husband has the right to
divorce her wife three times in his life. It does not at all approve the
utterance of three divorce sentences in one go. Consequently, it is clear from
these details that the two prevailing procedures of talaq ie (1) pronouncing
three consecutive talaq sentences in one instance, and (2) pronouncing each of
the three sentences in three months are not at all prescribed by the Qur'an.
When the Prophet (sws) came to know that a certain person had divorced his wife
by pronouncing three divorce sentences one after the other, he stood up in
anger and said:
In my presence, such playful attitude has been adopted
with the Book of Allah. (Nisai, Kitab-ut-Talaq)
A woman, as mentioned earlier, has an equal right to
divorce. The only difference is that in such a situation she will demand a
divorce from her husband. If the husband refuses, she has all the right to take
the matter to the court. The matter will then be decided by the ruling of the
court. A common misconception in this regard is that she must give some wealth
to her husband on this occasion of separation. This, we are afraid, has no
basis in the Qur'an; on the contrary, the Qur'an says that it is not at all
permissible for the husband to demand anything from his wife on this occasion.
However, if a husband has gifted a lot of wealth and property to her wife and
is afraid that in divorcing her he would lose all his riches, the Qur'an says
that she can forgo some or all of her share and return it to her husband to end
the whole affair. It is clear that this is only an exception and not a general
principle as is generally held and practiced. It is allowed when only wealth is
the husband's reason for not divorcing his wife.
This is the shariah as far as the concept of divorce is concerned.
However, as does happen with prescribed laws and procedures, situations arise
in which a person is guilty of breaching the law and deviating from the right
course. Human nature is prone to extreme emotional conditions in which it deviates
from the path set forth by the Almighty. These deviations, it is extremely
evident, are not part of the shariah; they fall into breach of law category and
it is up to the legislature of a country to enact laws about such departures.
At times, such cases are even left to the discretion of the judge and at other
times the judge himself is bound by the legislation done in this regard by the
parliament.
In case of divorce, keeping in view various precedents, this deviation is
generally of two types:
i) A husband divorces his wife during her menstrual period, or divorces her
after he has had contact with her in her period of purity.
ii) A husband divorces his wife by pronouncing the divorce sentence thrice.
As far as the first deviation is concerned, an Islamic government can ask the
husband to revoke his decision and carry it out in the proper manner at the
proper time. The Prophet (sws) in his own times dealt with the case of Abdullah
bin Umar (rta) in a similar manner.
In case of the second deviation, a deliberation on the injunctions of divorce,
particularly on their linguistic aspects, reveals that there are three possible
solutions:
(a) The husband can be called to court and asked to testify to the nature of
these pronouncements: if he testifies that he had pronounced the three
sentences in anger to only strongly assert his decision or that he had thought
that pronouncing three sentences was the correct procedure of divorce, the
court, if satisfied by his statement, can re-unite the husband and wife. In
this case, it shall be clearly spelt out to the husband that he now has
exercised one of his three chances to repudiate his wife. If on the other hand,
a person testifies that he had consciously uttered the three sentences knowing
that he was exercising his three rights in one time, the wife, of course, shall
be divorced from him. The case of Rukaana Bin Abdi Yazeed (rta) was decided in
a similar manner by the Prophet (sws).
(b) A second possible solution in this regard is that a state, while observing
that people have adopted a carefree attitude in following this procedure,
legislates that three divorce sentences shall be considered as three whether
pronounced in anger or in a normal emotional state. A precedent of this
solution can be found in the times of the Caliph 'Umar (rta). He himself, in
the capacity of a ruler in consultation with the members of the shura, upon
seeing that people had adopted a very careless attitude in this regard, as a
punishment, promulgated three divorce sentences as final.
(c) A third possible solution in this regard is that the state while observing
the fact that people are mostly ignorant of the correct procedure and in their
ignorance think that the correct way of divorce is to pronounce the sentence
three times, legislates that the three pronouncements shall be considered as
one.
Any of these three ways can be adopted keeping in view the welfare of the
Muslims. However, in adopting the second or third solutions, it is necessary
that a legislation has been done in their favour, but as far as adopting the
first solution is concerned, no prior legislation is needed and the matter can
be left to the discretion of the judge.
After explaining the Qur'anic concept of divorce and various aspects of
legislation in case of any deviation from it, an important issue which must be
elaborated upon before we end this article is the fate of the children after
divorce. In this regard, it should remain clear that this is basically a matter
which has been left to the discretion of the court. The basic consideration in
this matter is the welfare of the children. The court can decide in favour of
the father or mother, depending upon who among them is more beneficial to the
children.
1. This testimony, as is evident from the Qur'an, is not a legal requirement.
It is only a sound piece of advice for the welfare of the spouses.
2. The only exception to this rule is when the wife is guilty of committing
adultery, in which case a husband can take back all the wealth and property
gifted to her.
Author: Shehzad Saleem based on Javed Ahmad Ghamidi's interpretation
Topic URL: studying-islam.org/articletext.aspx?id=611
Source: irfi.org/articles/articles_251_300/quranic_concept_of_divorce.htm
---------------
Indian Muslims stonewalling reform of instant divorce law
13.08.2015
A new study indicates that 92.1 percent of Muslim women in
India want a total ban on instant oral divorce. The report was released by
Bharatiya Muslim Mahila Andolan (BMMA), an organization led by Muslim women
fighting for the rights of Indian Muslims, on Tuesday.
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. As female
Muslims don't have the same right under religious law, women are left
vulnerable and insecure.
With the widespread support of Muslim women, organizations
like BMMA are pushing for the so-called 'triple talaq rule' to be banned in
India.
The triple talaq tradition
The Koran permits men to divorce their wives by repeating
the Arabic word 'talaq' - meaning 'I divorce you' - three times in a row. Many
religious scholars believe that talaq must be spoken once every month over a
three-month period before the divorce is finalized.
Most Muslim countries, including Pakistan, have outlawed the
triple instant divorce practice to avoid impulsive divorce, a practice
discouraged in Islam. However, the rule is applied differently from country to
country. This situation leaves India, a majority Hindu nation, with one of the
strictest interpretations of the triple talaq tradition in the world.
The practice has been criticized on Twitter from people around the world.
Fighting to outlaw instant divorce
Women's rights organizations argue that instant divorce
should be outlawed, pushing for religious courts to adopt a more moderate
interpretation. This proposal is opposed by clerics and conservative Muslim
bodies such as the All India Muslim Personal Law Board. While they acknowledge
the serious consequences of the law on women, their efforts have been focused
on applying a mandatory reconciliation law.
"Any attempt at reforming the law is stonewalled in the
name of not interfering with [Muslims'] religious matters," Zakia Somani,
a co-founder of BMMA, told DW. "They say that law is divine. We all know
that law is manmade."
For Somani, such legislation is literally 'man'-made. She
critiques the lack of female representation on important boards controlled
exclusively by men.
"All these aspects are governed by the common sense and
understanding of the religious people who deal with these matters and they are
100 percent male," she said. "Their understanding is also very
limited and very patriarchal. As a result, we have incidents of triple talaq
and polygamy."
Women's rights organizations are receiving support on social
media for their campaign.
Reforming Shariah law in secular India
As a secular country, Indians enjoy freedom of religion and
the government gives space for minorities to practice their religion openly. There
has been a push for a uniform civil court that would cover civil matters in a
national system, instead of laws determined by religion.
However, minorities fear that such a change would force laws
passed for the Hindu majority onto their communities. The rights of the Muslim
minority are protected under the Muslim Personal Law, which allows clerics to
apply Islamic laws on civil issues such as divorce.
Karuna Nundy, an advocate at India's Supreme Court, believes
it is possible to reform the triple talaq rule that would protect women's
rights and religious freedom, both guaranteed under India's constitution. She
stresses that women must be included in the process.
"In terms of reforms, female Muslim leaders like Zakia
Somani and eminent Muslim jurists and theologians need to be brought to the
table to reform the interpretation that is consistent with the Koran as well as
the constitution and the Convention on the Elimination of all Forms of
Discrimination against Women (CEDAW)," she said to DW.
A status of women report released last month by a government committee also condemned the custom and recommended it be banned.
Source: dw.com/en/indian-muslims-stonewalling-reform-of-instant-divorce-law/a-18647863