By Mohd Asim
April 18, 2016
Saira Banu is in her mid-30s. A sociology postgraduate and mother of two, she is just one of the many victims of the tyranny of triple Talaq. Her story, as reported in the media, is gut-wrenching. Saira Banu endured a bad marriage, an abusive husband, forced abortions and physical and mental agony for over 10 years. Then, last year, her husband sent a letter to her parents' home where she was staying for almost a year. Inscribed on that piece of paper were three words: "Talaq, Talaq, Talaq".
Saira Banu has decided to fight. But instead of approaching a court and asked that it order her husband to pay maintenance, she has opened up a much larger front. Saira Banu has boldly challenged the validity of her husband's action of whimsically kicking her out, using the triple Talaq formula. She has petitioned the Supreme Court to declare triple Talaq, polygamy and Halala (the custom that mandates that if a woman wants to go back to her husband following divorce, she must first consummate her marriage with another man) illegal.
Muslim women have on a number of occasions asked the top court to grant them maintenance in wake of an instant divorce, including Shah Banu in the late 1980s, whose case became historic, but this is for the first time a Muslim has raised the wider issue of rights of Muslim women being trampled on in the name of Islamic practices.
The All India Muslim Personal Board, that I often describe as Jurassic Park for its insistence on clinging to some of the most outdated and medieval customs, has acted predictably, urging the central government not to share its opinion, as requested by the Supreme Court.
But the government must intervene. It should make it clear that either the Muslim Personal Law Board fall in line with modern secular law when it comes to the rights of women, or it should just perish. The board can't be let to carry on with its patriarchal and whimsical ways in the name of securing the Sharia or Islamic law.
In any case, the interpretation and implementation of the practices such as triple Talaq go against the Sharia itself. The Islamic way of divorce is an elaborate procedure, which includes a mandatory period of arbitration. The utterance of Talaq, Talaq, Talaq thrice at a go is plain un-Islamic. Period. So the Muslim Personal board defends an un-Islamic practice in the name of Sharia. Their bluff must be called.
Some Sunni clerics who recognise the practice of triple Talaq point to the practice being sanctioned during the reign of the second Caliph Omar. True that Caliph Omar sanctioned triple Talaq, but what these self-serving mullahs do is adopt the letter of the law, and junk its spirit. Caliph Omar pronounced triple Talaq as final in a few cases where women wanted to walk out of bad marriages desperately and their husbands were delaying the divorce by misusing the long-drawn procedure prescribed in the law. So it was for the sake of women that Caliph Omar gave legal sanctity to instant talaq in the 7th century. But what the later mullahs have done is to twist it to suit their own anti-women and patriarchal ends.
Another illustration to further explain how mullahs have twisted and turned Islamic laws and robbed them of their just spirit is the rape law. This is not followed in India, thankfully, as it's only the laws related to family issues and inheritance that are allowed as Muslim Personal Laws, but it is a good example of how a fine law is hijacked to give it a completely anti-women meaning. The rape law that is applied in some parts of the world, including in parts of Pakistan in the name of Sharia, puts the onus on the woman to produce four witnesses who substantiate her rape allegation against the accused. In the event the woman fails to do so, the man walks free, and the woman is punished for adultery. It's a common practice. No woman can ever produce four eyewitnesses to the rape, and no rapist will ever get punished.
Now, where did this come from? There is a famous episode in Islamic history involving one of the Prophet's wives, Aisha. It is known as "The Affair of the Necklace". As the story goes, while returning from a trade trip, Aisha lost her precious necklace of pearls. As she searched for it in the desert bushes, her caravan moved ahead and she was left behind. She was escorted back to the city by a stranger who helped her in her hour of need. But rumour mills and misogyny were as strong in the seventh century as they are today. People started whispering about the Prophet’s wife travelling with a stranger all alone in the desert. To shut down these rumours and character assassination attempts, the Prophet ruled that whoever raises an allegation on Aisha must produce four eyewitnesses to the misconduct or face punishment.
But trust mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today, we have a perverted version of the above-mentioned law in the name of Sharia. This example is just to illustrate how dangerous it is to just stick to the letter and not the spirit and context of any act of the Prophet or the early Caliphs.
The laws in Egypt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have totally derecognised the concepts of triple Talaq and Halala. Why should the All India Personal Law Board be allowed to parade these inhuman and illegal practices in the 21st century?
A 2015 survey of about 5,000 women across 10 states by the Bharatiya Muslim Mahila Andolan (BMMA) found that over 90% wanted an end to polygamy and triple Talaq. Of the 525 divorced women surveyed, 78% had been given triple Talaq; 76 of these women had to consummate a second marriage so that they could go back to their former husbands.
Saira Banu's case is a great opportunity to usher in a much-needed reform. The government and the Supreme Court must weigh in on the side of the Muslim women. The Muslims Personal Law Board must be shown it place. Saira Banu must not meet the fate of Shah Banu.
Mohd Asim is Senior News Editor, NDTV 24x7