By Sultan Shahin, Founding Editor, New
Age Islam
02 March 2017
The Hon’ble Supreme Court has done well to
delink the issue of instant divorce among Muslims from the larger question of a
common civil code. This brings the focus back to the vexed issue and stops the
All India Muslim Personal Law Board (AIMPLB) from obfuscating it to garner
Muslim support.
Many ordinary Muslims, including women, are
unaware of Islamic jurisprudence, so think that this is a universally accepted
religious dogma which they must support. This misunderstanding emanates from
the unity displayed by Indian Ulema of all sects on their male chauvinist
“rights” to treat their wives as slaves.
India's central government has argued that triple talaq is 'misplaced' in
a secular country
While ulema keep fighting among themselves
on minor theological differences, there is perfect unity on this issue. Even
ulema whose school of thought does not allow this evil practice support
AIMPLB’s un-Islamic position. Ahl-e-Hadithis, for instance, follow Hanbali Law
and, like Saudis, do not accept triple talaq in one sitting as valid. But the
general secretary of the Ahl-e-Hadith, Maulana Asghar Ali Imam Mehdi is adamant
that “the Centre and the courts should not interfere in personal matters of
religion.” Same is the case of Maulana Kalbe Sadiq, renowned Shia Muslim cleric
and vice-president of the (AIMPLB). The Ja’fri school of thought that Shias
follow invalidates the practice of instant triple talaq.
A man in West Bengal raises a sign against the ban on triple talaq: The
All India Muslim Personal Law Board decided to oppose Union Governments
initiative against the triple talaq and the imposition of Uniform Civil Code in
the country.
Shias themselves do not practice it.
Maulana Sadiq advises Sunnis to rethink the issue, but remains with AIMPLB that
endorsed Triple Talaq in its counter affidavit to the Supreme Court.
Other prominent Muslim clergymen in India
also take this self-contradictory position. Maulana Abdul Hameed Nomani, of
Jamiat-ul-Ulema, for instance, admitted in a TV discussion: “Imam Abu Hanifa
has gone to the extent of saying that “Jis Ne Ye Kaam Kiya Wo Haram Fail Ka
Murtakib Hua,” meaning whoever does this has committed a haram (forbidden)
act.
Imam Abu Hanifa is the founder of the
Hanafi school of thought that most Muslims of the Indian sub-continent follow.
He considers triple talaq a haram act. No wonder, immediately after its
creation Pakistan took steps to abolish the practice, along with other
un-Islamic practices in the Anglo-Mohammedan Law that still goes by the name of
Muslim Personal Law in India.
AIMPLB’s own position is no less
self-contradictory, and is indeed quite bizarre. While endorsing it, it also calls instant
triple talaq an abhorrent and prohibited practice. Its law book
Majmooa-e-Qawaneen Islami, says in Article (267):
Talaq-e-bidat (the hateful, un-Quranic way
of giving talaq i.e. triple talaq in one sitting) is prohibited [mamnoo’];
however, if one does give such a talaq-e-bidat, the talaq will be valid, and
the talaq-giver will be sinful.”
Article 269 of the Qawaneen, however, takes
the cake. As an average Muslim understands, in Islam intention is
all-important. So much so, that when a Muslim stands up for prayer, it’s not
considered enough that he is doing everything that is done in prayer. He has to
specifically state that he intends to pray. Now read what AIMPLB’s law book
says in the matter of triple talaq:
“Talaq-e-Sareeh i.e. Talaq by using clear and plain words effect divorce whether
one intends divorce by them or not.”
It must have been based on this that the
Deobandi fatwa told a young Muslim husband that even if you wrote the word
talaq thrice in jest while chatting playfully with your newly wedded wife
online, your divorce is final and you cannot remarry her unless your wife
performs halala, that is, marries someone else, consummates her marriage,
sleeps with the new spurious husband for a few nights, and gets a divorce from
him later.
Kashmiri Shi'ite Muslim women
Halala is the most obscene social practice
among Indian Muslims which has the blessings of all sections of Ulema. This
practice will be automatically eliminated if triple talaq is abolished or three
talaqs uttered in one session are considered as one Quranic talaq, as is done
in 22 Muslim countries including Saudi Arabia, Pakistan, Bangladesh, Egypt,
Syria, Jordan, Iraq, Sudan, Morocco, Kuwait, Yemen, Afghanistan, Libya, Kuwait,
Qatar, Bahrain, and the United Arab Emirates.
Even Sri Lanka with less than 10 per cent
of Muslims in its population, has managed to reform Muslim Personal law and
make it more gender just. India alone has been unable to move forward.
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)
If the
government keeps waiting for approval of Ulema, it is never going to happen.
Ulema are not going to accept Quran as their guide anytime soon. For them
Sharia with 90 percent of its rules based on Arab tribal customs is the source
of legislation. They call Sharia divine, even though it was first codified 120
years after the demise of the Prophet (pbuh) and has been changing since from
time to time and place to place. All hope now lies with the Supreme Court.
Sultan Shahin is the founding editor of a Delhi-based progressive Islamic
website NewAgeIslam.com.
This article appeared first in Mail
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