By R. Upadhyay
October 19, 2016
For the first time in the constitutional history of India, the Central Government through its Law Ministry filed an affidavit impressing upon the Supreme Court to do away the prevalent practice of polygamy and triple Talaq on the plea that they are not an integral part of the religion and is also against the constitutional guarantee of gender equality.
The Case against Triple Talaq
Since more and more women and their organisations were approaching different courts on the issue of triple Talaq in different parts of the country, the Supreme Court last month asked the central government to submit its reply to a batch of petitions including that of one Shayra Banu of Uttarakhand who challenged the practices like triple Talaq, polygamy and Nikah Halala as unconstitutional. The apex court had also initiated suo motu proceedings to examine the need for protecting the rights of all Muslim women.
The AIMPLB (The All India Muslim Personal law Board) is now all set to become a party to the case to oppose the legitimate grievances of Indian Muslim women.
The Muslim feminist organisations and a sizeable section of intellectuals in the community have welcomed the stand of the government but the Muslim orthodoxy led by AIMPLB that has institutionalised the religion for their hegemonic control over the community are seen to be enraged and have declared that it is an interference in their personal laws. In fact, the All India Muslim Personal Law Board had already filed an affidavit that “Court cannot interfere in personal law and “Personal laws cannot be re-written in the name of social reforms”.
Instead of arguing the issue on merit, they have rather challenged the right of the judiciary to “interfere” in the matter of personal laws.
Triple Talaq Has No Place in Quran
The Muslim organisations favouring ban on triple Talaq on the other hand maintain that it is not against Sharia as there is no provision of triple Talaq in the holy Quran. Zakia Soman of Bhartiya Muslim Mahila Andolan which is opposing triple Talaq in Supreme Court said, “As far as the Quran is concerned, there is no mention of triple Talaq. It is a later addition….” (Indian Express dated October 12). Shaista Amber of the All India Muslim Women’s Personal Law Board Maintains, “There should be a law ….. where the first utterance of triple Talaq has to be followed up after three menstrual cycle of the women and attempts to reconciliation. ….”. (Ibid.).
A Muslim newspaper “The Siasat” daily published from Hyderabad in its issue dated October 9, 2016 maintained that the affidavit of the government in Supreme Court is “against Muslim Personal Law” and an attempt to “directly interfere into the Islamic Shariah”. “This has created apprehensions among the Muslims. They feel that Muslim parties and associations should unitedly fight against such nefarious efforts against Sharia.
The paper has added that those opposing Supreme Court move feel that Deputy Chief Minister Mohammed Mahmood Ali should represent to Chief Minister K Chandrasekhar Rao against interference in Islamic Shariah. If TRS government is pro-Muslims and is in favour of protecting Islamic Shariah then chief Minister should send a letter to Prime Minister Narendra Modi opposing the affidavit, which is against Islam”. (http://www.siasat.com/news/rajnath-singhs-assurance-regarding-muslim-per…)
Veteran Bollywood lyricist and poet Javed Akhtar on Saturday said the organisation was the biggest foe of its own community. “I condemn Muslim personal law board in the strongest words for justifying instant divorce”.( http://english.newstrack.com/tag/triple-talaq) It may be mentioned that Bhartiya Muslim Mahila Andolan had already sought a ban on “triple talaq” and spearheaded a petition which was signed by about 50,000 Muslims from different states. They had even urged the National Commission for Women to intervene and end this ‘un-Quranic practice’.(Ibid.).
Enter the All India Muslim Personal Law Board
Scared of the anti-triple Talaq voices from within the community, the AIMPLB held a press conference on October 13 in Delhi where Ulema of Jamiat Ulema-e-Hind and Jamaat-e Islami Hind strongly criticised the stand of the government and said that they would launch a country wide protest against it. They even announced to boycott the questionnaire of Law Commission on this issue. Surprisingly the Barelvi sect of Muslims who are known opponents of Deobandis also announced on October 15 that they would also organise a massive protest and signature campaign against the Uniform Civil Code and in favour of triple Talaq. Enraged mood of the Muslim orthodoxy suggests that they are determined to mobilise the community as they had done in Shah Bano case in the mid-eighties of the last century and forced the then Congress Government led by Rajiv Gandhi to amend the constitution and undo the Supreme Court judgement.
Reforms In Muslim Personal Law Considered And Allowed To Die
The debate over for and against reform in Muslim Personal Law is going on for years in India. In view of the discriminatory provision in this law, some liberal Muslim intellectuals championed for reforms as was done in a number of Islamic countries.
Accordingly, taking into account of the changing attitude of a number of Muslim majority countries towards the Shariat, the Union Cabinet appointed a committee comprising of Muslim leaders like Humayun Kabir, Hafiz Muhammad Ibrahim, Muzaffar Hussain and then Jamia Vice Chancellor Mohammad Mujib in 1963 for suggesting reforms in the Muslim Personal Law. The move opened the floodgate for debate on this issue. Tahir Ahmad, then Associate Professor at Indian Law Institute, carried out a survey on the state of Muslim Personal Law in twenty countries and found that Shariat was not applied uniformly in all these countries. The issue also figured at the International Congress of Orientalists in Delhi in 1964, which stirred a countrywide debate on the subject.
Article 15 of the Indian constitution prohibits any discrimination among its citizens on the ground of sex but the Muslim women do not get constitutional protection on the issue of polygamy and divorce. ‘Muslim Personal Law permits a man to marry four wives. It gives a husband a right to divorce his wife without going to a court of law or without giving any reason or justification for the divorce. This practice makes the legal position of a Muslim woman extremely insecure. (H.A.Gani, Muslim Political Issues and National Integration, 1978, p.92.)
Asaf A. A. Fyzee, a noted Muslim writer and internationally known authority on Islamic jurisprudence maintained, ‘Islam, in its orthodox interpretation has lost the resilience needed for adaptation to modern thought and modern life.’
He also observed: ‘The law of divorce, whatever its utility during the past was so interpreted that it has become the one sided oppression in the hands of the husband-and almost everywhere Muslims are making efforts to bring the law in accordance with modern ideas of social justice. (A Modern Approach to Islam, 1963, p.105)
Fyzee is the first Muslim Indian courageous enough to contend that Muslim law in India is not based on the Sharia but was introduced by the British for political reasons.’(M.R.A. Baig, Th e Muslim Dilemma, 1974, p.20.12)
Begum Sharifa Tayabji in her presidential speech in the Maharashtra State women conference (Pune, 27 December1971) maintained, ‘the Muslim personal law as practised under the Shariat Act had brought untold miseries to Muslim women should be discarded forthwith in favour of a common civil code’. She added, ‘if Rasul Allah is to appear in person before us he would roll his head in shame over our performance. … .
Contrary to rational views of Muslim intellectuals, the Islamic orthodoxy particularly, Deoband Ulema of Jamaat-e-Ulema-e-Hind and Jamaat-e-Islami Hind reacted sharply against the move pleading that change in Muslim Personal Law was tantamount to infringement of the religious rights of the followers of Islam. The then JUH leader Maulana Asad Madani viewed the plea for reform as a ‘mask for Jana Sangh’s (now B J P) sinister designs to exterminate the Muslim community from India’. (Mushirul Hasan, Legacy of a Divided Nation, 1997, p.248)
The Working Committee of JUH in its resolution in April 1970 maintained: ‘Th e Muslims consider the personal law to be an essential part of their religion and stand therefore for status quo.’(H.A.Gani, Muslim Politics and National Integration, 1978, pp.94-95.) The no-change Muslim group cite Surah 33, verse 37 of Quran in support of their stand. It says, ‘It is not open to a believing man or a believing woman, when Allah and his messenger have decided a matter, to exercise their own choice in deciding it.’(Ibid. p.95). They argue that no one is competent to change or amend the explicit provisions of Quran, which is divine. They went to the extent of declaring that any change would amount to an attempt to Hinduise Muslims.
Radiance, an organ of Jamaat-e-Islami dated 25 June 1972 observed: ‘the risk of interference will hang over our head like Damocles’ sword and the demand for enforcement of Directive Principles relating to common civil code will intensify’. Taking the issue as a conspiracy of the government to subvert Shariah, the Muslim orthodoxy organised a wide range of seminars and conventions in early seventies, aggressively opposed the move, and thus forced the government and the committee constituted in 1963 to place the issue in cold storage.
History of AIMPLB: They Are Not the True Representatives of the Majority
It was in 1972 that Darul-Uloom Deoband is said to have only about 20 to 25 percent of Indian Muslims as its followers, first organised a two-day ( convention at Mumbai and decided to form All India Muslim Personal Law Board (AIMPLB). The Board was formally established on 7 April 1973 at Hyderabad with Maulana Taiyab Qasmi and Maulana Syed Shah Minatullah Rahmani as founder president and secretary respectively.
Since then AIMPLB claimed to be a sole representative body of the Indian Muslims though not more than 20 tp 25 percent of Indian Muslims are its followers. Soon it came under the control of the Islamists, who have since then been using it as a tool for exploiting the Muslim masses for their self-seeking political interests. The irony was that the government in the centre has also been treating them as if they are the only true representatives of Muslims in India.
More surprising, no non- Deobandi organisation challenged this claim of the Board. Formation of AIMPLB was therefore, the first victory of Muslim orthodoxy in post Independent India not only over the enlightened people in the community but also over the government which succumbed to their pressure.
Despite this hegemonic control of Muslim orthodoxy over the community, in 1973 M. C. Chagla said, ‘in secular India, everyone should have equal rights and polygamy should be abolished’ (H. A. Gani, Muslim Politics and National Integration, 1978, p.88). Similar views were expressed by Justice Y. V. Chandrachood, who said, ‘one law of marriage for all would be an important step towards national integration’ (Ibid.).
Muslims in non-Muslim majority areas always believe that ‘they are a state within a state and a society within a society. Islamic personal law runs contrary to the modern notions of human rights. Its anomalies are obvious to anyone except Muslim males.’(Hamid Dalwai, Muslim Politics in India, 1969, p.87)
According to Rafique Zakaria, ‘Muslim Personal Law is strictly not based on the Quran; it is a bunch of interpretations and traditions compiled by a group of Maulvis at the instance of Lord Macaulay.’(Rafi que Zakaria, Th e Widening Divide, 1995, p.234.).
Asghar Ali Engineer, a writer of repute observed, ‘Today the Muslim leadership in India has converted the question of change in Muslim Personal Law primarily to their political advantage. It would be wrong to argue that Muslim Personal Law is immutable as it is divine.’ He further said, ‘Maulana Abul Kalam Azad in his commentary on the holy Quran makes distinction between Din (essence of religion) and Shariat (Islamic legal code, rituals etc); only the former is immutable while the latter is not.’(A.A.Engineer, Indian Muslims, 1985, p.288) Engineer also emphasised on genuine modernism against pseudo-modernism, which is often manifested through vulgar ostentation, laxity of morals and similar, other traits.
Muslims intellectuals in India like M.C.Chagla, A.A.A.Fyzee, Iqbal A.Ansari, Hamid Dalwai, M.R.A.Baig, H.A.Gani, Moin Shakir, Mushirul Hasan, Rafiq Zakaria, Asghar Ali Engineer and others often expressed their views in support of the transformation of Muslim society and its Personal Law. However, in the absence of any unified and assertive role, their voice remained mute against the high pitched dominance of Muslim extremists, whose war cry of ‘Islam is in danger’ in the clergy-controlled Muslim society in India carried the day and the fancy of poor masses.
Shah Bano Case- A Retrogressive Step: Should It Be Repeated?
Unfortunately, instead of honouring the saner voice of these scholars the government led by Rajiv Gandhi succumbed to the pressure of the voice of Mullahs who successfully organised countrywide aggressive protests against the verdict of Supreme Court in the Shah Bano case in 1985 and amended the constitution to pass the Muslim Women Bill. Rajiv Gandhi did not even allow Arif Mohammad Khan, Minister of State in his cabinet to speak against the Bill, which was passed to undo the Supreme Court verdict. This was not only a marked departure from the Nehruvian tradition of non-interference in the matter of Muslim’s faith but also a signal that Mullahs power in India was stronger than the government.
The victory of Muslim fundamentalism on the issue of AIMPLB and the Shah Bano case worked as a catalyst for consolidation of Hindu votes and the decline of the Congress. It also proved that Muslim intellectuals were not ready to confront the Mullahs. Although, they were the by-products of the Aligarh movement, in absence of the courage of its founder Sir Sayed Ahmad Khan to face the challenge of the fundamentalists boldly they failed to break the power of Mullahs. Had the enlightened Muslims who constituted a significant number in the community countered the protests led by Mullahs and propagated the views of scholars in the community for reforms in Shariah, they would have done a great service not only to the community but also to the nation.
Muslim masses would be glad if their personal laws were altered to conform to the modern concept of justice but unfortunately they are helplessly caught between the slogans of secularism and communalism as their leaders fail to initiate any genuine move to awaken them from their slumber. Knowing the weakness of the government almost all Muslim organisations in India have now linked the Shariat with the religious identity of Islamic community and the All India Muslim Personal Law Board is always ready to resist any move by the government for its reform. The Board was expected to initiate a debate on this issue within the community but no activity on this issue has ever come to notice.
Exceptional Muslim intellectuals of true nationalist Indian tradition like M. C. Chagla, former President Dr A. P. J. Kalam and Hamid Dalwai unfortunately did not find space in Muslim society dominated by fundamentalists. Indian Muslims responded positively to the advice of Sir Sayed Ahmad Khan and accepted a number of changes in Shariat particularly the Quranic punishments. ‘On the eve of British Raj; they accepted the replacement of Quranic punishments with those provided by the new rulers in their civil and criminal codes that were imposed in them; prohibited by the Quran; they acquiesced in the banning of stoning to death for adulterous, though it violated the Quranic injunction; they strongly protested against enactment of Shariah Act, which invalidated child marriages.’ (Rafiq Zakaria, Indian Muslims: Where Have They Gone Wrong? Mumbai: Bhartiya Vidya Bhavan, 2004, p.xxxviii)
The British Changed Criminal Laws but Left Personal Laws Alone
With the advent of British rule, the colonial government invalidated a number of prevailing Islamic criminal laws pertaining to crimes like theft, murder, adultery and law of evidence and replaced them with Indian Penal Code, Criminal Procedure Code and Evidence Act in 1862.They ignored the protests of the Muslim clergy and there was hardly any effective resistance.
The British however, did not replace the family laws like inheritance, marriage and succession based on the religious scriptures of both the Muslims and the Hindus who gradually accepted this change. Later, the British enacted the Muslim Personal Law (Shariat) Application Act 1937. It also enacted the Dissolution of Muslim Marriage Act 1939 to allow Muslim women to divorce their husbands: (i) if the whereabouts of husband are unknown for four years (ii) no maintenance is paid for two years (iii) the Quranic sanction of giving equal treatments to wives in violation as well as other circumstances.
There was no resistance from the Muslim community to these laws. But in post-independence India, the Muslim leaders of Constituent Assembly took a strong stand and ruled out any interference with the Muslim Personal Law. The then Government in ower failed to take a bold step as the British had taken and allowed the issue to fester. Since then it was and continued to remain as an important issue for the separatist politics of the Muslim.
Stage Set For Confrontation between Government And Muslim Orthodoxy
In the present case also, despite the views expressed by various Islamic scholars against triple Talaq and polygamy, the Muslim orthodoxy is found determined to oppose the move of the government in Supreme Court. This suggests that once again the stage is set for another confrontation between the Muslim orthodoxy and the Government as had happened in mid- eighties of the last century in Shah Bano case. It is a fact that the Muslim community is divided on this issue for long but the Mullahs belonging to any sect are found to get united if there is any move for reform in Islamic personal laws.
The prevailing scenario shows that Muslim orthodoxy is unequivocally opposed to any change in Muslim Personal Law. The saner voice of liberal Muslims is so feeble that it is hardly audible to common Muslims. ‘Secularist’ political parties have no interest to solve this vital problem because of their vote bank compulsions. This time too they are cautious in issuing statements. Muslims suspect the BJP’s voice as a move to Hinduise the Muslim society. The Leftists support the Muslim fundamentalists, as they do not have any ideological conviction in Indian nationhood.
Islamists all through have been maintaining pressure on the government to keep its hands-off in their Personal Law. The argument of Muslim fundamentalists that Islamic laws are immutable—is not based on sound logic. In fact, a number of Islamic countries made certain reforms in Shariat to meet the changing social environment. ‘As many as twenty-two Arab countries and some eighteen non-Arab Muslim countries have systems of personal law that have been codified and reformed in variety of ways, some of which are not discriminatory against women, outsiders and so forth’. (Tahir Mahmood, ‘Personal Law in Islamic Countries’, 1987. Quoted in Gerald James Larsen, ed., Religion and Personal Law in Secular India, p.2)
Muslim majority countries like Morocco, Tunisia, Syria, Turkey and Iran took up measures to prohibit polygamy, which shows that there is enough scope for transformation of Muslim Personal Law. ‘Turkey, Cyprus, Tunisia, Algeria, Iraq and Iran do not give a Muslim husband right to divorce his wife unilaterally. A Muslim husband seeking divorce from his wife must apply to the court of Law. (H.A. Gani, Muslim Politics and National Integration, 1978, p.115)
Prof. Tahir Mahmood, former Chairman of the National Commission for Minorities who is also an internationally recognised expert on Muslim Law in an interview said that the “Maulvis have thwarted reforms in the community and the need for judiciary to step in”. Suggesting to ban triple Talaq he also said, “Frankly, I want the Board to be abolished. Its members are paranoid and they speak rubbish. Every time the Supreme Court delivers a judgement, the Board members say it is interfering with Shariat. They are doing disservice to the community”. (http://scroll.in/bulletins/22/how-the-the-science-of-biodegradability-ca…).
The pity is the Board represents a minority and no one has cared to check the views of the vast majority who are outside the hold of these orthodox Muslims.
The ongoing debate in media has provided an opportunity for the majority of the Muslims including the women who are the main victims to initiate a campaign against this practice of Talaq.
Such campaign can transform this debate into a social movement for scientific interpretation of Islam with the sole agenda to educate their community and fight against the hegemony of Mullahs. For this, they should be extra cautious against political parties particularly the Leftists, who may like to infiltrate in the movement for their own political interests. Muslim organisations like JUH, JEIH, All India Muslim Majlis—Mushawarat, All India Muslim Personal Law Board and others have caused more harm to Muslim society than the RSS or the BJP.
The thoughtless politicisation of Muslim Personal Law since Independence has now reached a stage when it is getting out of hand and making the emotional integration of the two major religious communities more and more difficult. No one can deny that it is detrimental to the national interest and well being of its people. In view of the complexity of the problem, the only ray of hope lies in the honest and unified efforts of liberal Muslims. Without a strong assertive Muslim leadership in the nationalist and secularist Indian tradition launching an aggressive movement for democratic liberalism to free the Muslim women from their plight, they would continue to cling to medievalist obscurantism. The need of the hour is to de-politicise all the Muslim issues and free them from the Mullahs..
Let the reforms in the Muslim Personal Law be the starting point.