By Tufail Ahmad, New Age Islam
27 May 2016
On May 18, it emerged that a Muslim woman from Jaipur, Afreen Rehman, has moved the Supreme Court of India after she was divorced via Speed Post. Afreen Rehman also said that she was mentally harassed and beaten up by her husband's family members who were allegedly demanding dowry. In another case, Shayara Bano from Uttarakhand has petitioned the Supreme Court to ban Triple Talaq.
From such cases, two issues emerge. One, the affected women are not demanding reforms in Islam. Instead, they are asking for the Shariah laws to be codified so that a husband's arbitrary power to divorce is removed. Two, India is predominantly a Hindu society in which people have traditionally looked down on divorced women. So, the presumption behind the voices against Triple Talaq is that divorce is bad. The fact is this: divorce is good and should be made easy for women and men to exit a bad relationship.
If Muslim women want an easy solution, there does exist a stress-free solution in the Indian Constitution. For example, Muslim women and Muslim men can marry under the Special Marriages Act under which marriage is a civil contract. Such a course will eliminate all problems associated with Islamic marriage and divorce. Islamic scholars agree that in Islam, marriage is a civil contract between a man and a woman. So, marrying under the Special Marriages Act will be valid as per Islam. But women's groups do not approve of the Special Marriages Act as something good for Muslim women.
Also, look at these issues from a husband's perspective. There are three Shariah-compliant laws that govern marriage, divorce and alimony among Muslims in India: one, the Muslim Personal Law Act, 1937; two, the Dissolution of Muslim Marriages Act, 1939; three, the Muslim Women (Protection of Rights on Divorce) Act, 1986.
Under the 1937 law, Muslims can marry and divorce in informal ways deemed correct by Islamic clerics. A Muslim husband must divorce under this law, which means he cannot go to court for divorce. If he goes to court, his application for divorce is dismissed. He is forced to effect his own divorce through a letter, phone call, video or internet.
Under the 1937 law, there are two ways to divorce: first, utter triple Talaq unilaterally, thereby ending the marriage instantly. It is dehumanising for a Muslim husband to go through this process. A more self-respecting step for a husband will be to go to court to obtain divorce. Second, deliver Talaq in three monthly instalments – a three-month period during which reconciliation can occur. But if a husband sends the first instalment of Talaq, the wife will file a dowry harassment case. Due to fear of 498A dowry cases, Muslim husbands are advised by lawyers to choose Triple Talaq.
Also, under the 1937 law, only the husband can divorce. As per Shariah, only the husband can "give" divorce. So, a law was enacted in 1939 to empower Muslim women. But even under the 1939 law, a Muslim woman cannot "give" divorce; she can only "seek" divorce either through Islamic clerics or through courts. Then there is a third law, known as Shahbano legislation, enacted in 1986. It nullified a Supreme Court order to grant alimony to the destitute divorced woman Shah Bano. This law upheld Shariah code that a divorced woman can get alimony only for three months.
While Muslim women's groups are debating these issues, ideas about women's rights must not be dependent on religion. Let's consider the following points. One, Nikah (marriage mediated through Islamic clerics) must be abolished because Islam does not require the role of an Islamic cleric for marriage. In Islam, marriage is a civil contract agreed in the presence of two male witnesses. Two, the requirement that the witnesses be male must be also abolished because it is against women's equality in today's democratic era.
Three, the Bharatiya Muslim Mahila Andolan advocates that the amount of Mehr (money paid by the husband to wife in order to marry) be a year's salary of the husband. This is an extortion, a regressive idea meant to uphold Shariah. Why Mehr should be paid only by the man, not by the woman? Mehr is an instrument of women's subjugation. The worry is that Muslim girls will start looking for a rich man to buy their subjugation for a bigger amount of Mehr. Whether one month's or one year's salary, Mehr cannot improve women's situation. Gender equality means that husband and wife should work. Mehr must be abolished. It serves Islamic Shariah, not women.
Four, it is clear that many Muslim women are badly affected by Triple Talaq, an ambush form of divorce. All forms of Talaq without the involvement of an Indian government-run court must be declared illegal, whether or not Islam permits it. Some Islamic groups are running parallel courts as per Shariah which is illegal. Also, divorce must be made easy, especially to ensure that women do not file dowry harassment cases after divorce is initiated. Under any new legislation, both Muslim husband and wife should be forced to seek, not give, divorce only through a court. The parallel Shariah courts operated by Islamic organizations such as the Bharatiya Muslim Mahila Andolan are unconstitutional and strike at the democratic ethos of the Indian republic.
Five, in case of children, husband and wife should share the cost of their upbringing proportionate to their incomes. Under Shariah laws, upheld by the Shah Bano legislation, a Muslim husband has to pay alimony to wife for three months. Also, in modern times it is against gender justice that former husbands should pay for their past wives. A more secular and gender-neutral approach must be this: no husband and wife, whether Muslim or not, should have any links after divorce.
But destitute women will need support. One idea could be this: insurance companies should offer government-mandated maintenance payments after divorce – similar to the accidental death insurance paid by banks. Couples must pay the insurance premium during the course of marriage, possibly as part of a bank account maintenance fee. A similar innovative idea of an insurance pool was mooted within the context of the Civil Liability for Nuclear Damages Act, 2010. India has already launched a Rs. 1,500-crore national insurance pool for nuclear damages.
Six, until reforms happen in Islam, Muslim women and Muslim men must marry under the Special Marriages Act to avoid problems because, as per Islam, marriage is civil contract. Seven, in cases of disputes between a wife and a husband, the Special Marriages Act must be applied, irrespective of under whichever personal law a marriage was solemnised initially. The Supreme Court should pass an order to this effect. Eight, India needs to bring in a Universal Bill of Rights for Indian Citizens (Ubric) that will protect human rights of all citizens, of all religious communities.
To conclude, problems associated with Muslim societies regarding marriage, divorce and other issues need surgery, not tablets. In India, Muslim women fighting for justice must know that they can be meaningfully empowered only if they are into income-generating employment and if their daughters go to schools – not madrasas – to study mathematics, economics and physics from grade 1 through 12.
(A version of this article was published by Dainik Jagran, the largest Hindi-language daily, on May 27, 2016)
Tufail Ahmad is Director of South Asia Studies Project at the Middle East Media Research Institute, Washington DC. He is the author of "Jihadist Threat to India – The Case for Islamic Reformation by an Indian Muslim."