By Markandey Katju
June 13, 2014
Let me answer them by telling that I have studied Shariat Law first in the Allahabad university as a student of L.L.B. from 1965, then as a lawyer till 1991 in Allahabad High Court, and then as a Judge in the High Court and Supreme Court. Thus I was studying the Shariat perhaps even before these critics were born (I am now 68 years old).
On the other hand, their comments indicate that they have little knowledge of Shariat, and have little modesty. Some of them say that Talaq requires a long procedure. This is totally false. The truth is that it may require a long procedure for a Muslim woman wanting divorce because she has to file a petition in court under the Dissolution of Muslim Marriages Act, 1939, and it is well known that in our country court cases take several years to decide, and even thereafter there may be appeals and second appeals. However, a Sunni husband can immediately divorce his wife by a triple Talaq (Talaq ul bida’t). Such a Talaq is not valid according to Shia law, but it is valid according to Sunni schools of jurisprudence, as held in the Privy Council decision in Rashid Ahmad vs. Anisa, A.I.R. 1932 P.C. 25.
Though the preferred manner of divorce Is Talaq Ahsan or Talaq Hasan, yet Talaq ul Bida’t is good in law, and is the most common and prevalent mode of divorce in India vide Amiruddin vs. Khatun Bibi (1917) 39 All.371, 375. See in this connection Mulla’s Mohameddan Law, 19th edition, p.261, Ameer Ali’s Mohameddan Law, 5th edition 1556, etc.
As regards Khula and Mubarraat divorce, both require agreement between husband and wife . The main distinction between Khula and Mubarraat is that in the former the aversion is on the part of the wife alone, but in the latter, the aversion is mutual. In a Khula divorce an offer has to be made by the wife to the husband for agreeing to divorce her on payment of compensation by her, vide Ghulam Sakuna v. Umar Baksh, A.I.R. 1964 S.C. 456 at p. 459.
In Mulla’s Principles of Mohameddan Law, 19th edition p. 265 it is stated that a Muslim marriage may be dissolved not only by Talaq which is done unilaterally by the husband, but also by an agreement between husband and the wife. This agreement to dissolve the marriage may take the form of Khula or Mubarraat. Thus, in both Khula and Mubarraat there has to be an agreement between husband and wife. It follows, therefore, that if the husband does not agree there cannot be a Khula or Mubarraat divorce. In other words, Khula and Mubarraat cannot be done unilaterally by the wife, unlike Talaq which is done unilaterally by the husband. Hence the wife does not have the right to get a divorce even in Khula form akin to the right of the husband.
All this indicates the inequality between man and woman in the Shariat law of divorce. The Shariat was a creation of medieval times, when women were regarded as inferior to men. However, when society changes, the law too has to change, because the law reflects the social relations in a society at a particular stage of its historical development. Surely, laws made in Arabia in the 7th or 8th century cannot be applied in the 21st century. In the 7th or 8th centuries women were regarded as inferior to men, but the modern age is an age of equality and now discrimination against women is unacceptable, and has to be abolished.
I have mentioned all this in great detail because most of those who have criticized me have, at least by implication, indicated that a non-Muslim cannot be learned in Muslim Law, while a Muslim , who may not have studied Muslim law at all, by the mere fact that he is a Muslim, is an expert in Muslim law. This is obviously nonsense.
Those who know little or nothing of Muslim law, just because they are Muslims, do not become an expert on Muslim law. Such persons need to learn to be a little more modest and polite.
India is a secular country. Non-Hindus have a right to criticize bad and oppressive Hindu customs e.g. the caste system and similarly non Muslims have a right to criticize bad Muslim customs or outdated, and oppressive Muslim laws and practices. Such criticism of bad customs and oppressive laws and practices do not amount to an attack on anyone’s religion.
DISCLAIMER: Views expressed above are the author's own.
Source: Satyam Bruyat | India