Why the triple talaq case before Supreme Court is different from Shah Bano’s in 1986 - Review triple talaq :
Opinion
11/08/2016.
660.
All Members,
Respected family members of this great holy Nation.
1.
Sub : Why the triple talaq case before Supreme Court is different from Shah Bano’s in 1986 :
Ref : Media reports -New set of petitioners in Shayara Bano reflect the change in issues and attitudes from three decades ago.
by Seema Chishti
seema.chishti@expressindia.com
The Indian Express
Supreme Court of India
In October last year, a two-judge Bench of the Supreme Court, while hearing another matter having little to do with Islamic law, decided to suo motu ask the Chief Justice to set up a Bench to examine gender discrimination against Muslim women, especially “arbitrary divorce”.
The case snowballed with the addition of other petitions, and after all impleadments were considered by Chief Justice T S Thakur recently, hearings have been scheduled for September.
The matter comes 30 years after the controversial Shah Bano maintenance case, which resulted in Parliament passing a law to override a Supreme Court verdict giving a divorced Muslim woman a fairer maintenance than what she got under personal laws. Muslim clerics led by the All India Muslim Personal Law Board (AIMPLB) — enraged by what they saw as interference at a time when politics in India was almost tinderbox like — were able to convince Rajiv Gandhi’s Congress that the court’s judgment eroded Islamic identity.
The debate was successfully framed as an Islam-versus-women’s rights issue, and Shah Bano became a part of the Babri Masjid-and-Kashmir idea of injured Hindu pride in India. The argument being, when Hindus have had to codify and reform laws (something which the Hindu Right opposed tooth and nail when Law Minister B R Ambedkar and Prime Minister Jawaharlal Nehru proposed it in the 1950s, leading to Ambedkar’s resignation), why then should Muslims be allowed to get away without similar codifications and laws.
Now, three decades on, is the re-emerging debate still going to go the Shah Bano way — and is it likely to end up as a victory for both the Hindu Right and the Muslim Right?
In the petition before the court now, some things do indeed appear to mirror the 1986 scenario. Such as the view of the RSS-driven Rashtriya Muslim Manch, which argues that its opposition to triple talaq and the nikah halala (an intervening marriage necessary if the old marriage has to be restored) means that there has to be a Uniform Civil Code. The AIMPLB is there too — arguing, as it did then, that there can be no debate or intervention by courts on a matter of personal law.
But there is another set of petitioners who make this case different. The Bhartiya Muslim Mahila Andolan (BMMA) is intent on making it a triple talaq versus Islam debate — which would change the rules of the game for the older set of rivals.
The BMMA’s arguments begin with wanting triple talaq and nikah halala to be struck down as being unIslamic, and antithetical to Islam itself. It is not as though scholars have not argued this earlier — and to those familiar with Islam, inheritance rights, and the notion of marriage as a contract being evidence of the religion treating women as equals, are equally familiar. The fact that the Prophet’s wife was a widowed businesswoman, fifteen years older to him, and his youngest wife Ayesha led a contingent to battle, have been cited as ‘proof’ of Islam being inherently equalising. Practices from ‘jahiliya’, the so-called age of ignorance before Islam, like the purdah, chador, etc., having left their mark on regional practices and being confused with Islamic practice, have made it considerably difficult to argue that position, though.
What is likely to sneak into and impact the argument also are changes that have taken place since the 80s — both within the Islamic community and outside of it. Before Shah Bano came Nikaah, the 1982 film by B R Chopra, which popularised and framed the problem for many — in which the Pakistani actress Salma Agha played the divorced and crushed Muslim woman and the now Congress Rajya Sabha MP Raj Babbar, the second husband. Things have moved on since.
In today’s age of connectivity, with the Quran and scores of its interpretations being available on mobile phones, Muslim women have more agency, their literacy rates have risen, and their participation in the workforce, though still not at a desirable level, is much higher, say petitioners who have conducted campaigns and raised awareness levels. Debate and conversation about these matters is more prevalent. In the aftermath of the 9/11 attacks, several mainstream Muslim clerics who might otherwise not have made a case for gender equality, found themselves citing Islamic feminism to back the presentation of their faith as a modern idea. A combination of these factors working outside India, and a proliferation of role models and their popularity, have encouraged Indian Muslim women to interrogate ‘the spirit of Islam’, and their place in it.
As far as the specifics of what is being argued in the current Shayara Bano matter goes, the disagreement is between those who see Islamic law itself as opposed to the idea of equality enshrined in the Constitution and those who argue that triple talaq and nikah halala are not Islamic, only have credence among a section of Muslims — the Hanafi tradition — and are not held as rightful by Quranic verses.
And what of the Uniform Civil Code argument? The fact that most see the Code as just an extension of the Hindu law is a problem, and there is little chance of other faiths accepting it, or agreeing to practices that may not draw at all from their respective faiths. The Special Marriages Act anyway exists for those for whom faith is not central to companionship, or for those who marry across faiths, or even caste.
The RSS-inspired petitions would likely want to use the opportunity to make a case for Islam versus good sense. And it is up to Muslim clerics — mostly men who said ‘do not interfere’ three decades ago — to back the statements they make on their faith having been egalitarian even in the seventh century. Falling back into jahiliya is not an option.
2.
Sub : Review triple talaq :
Ref : Media Reports - Indian Muslims must find a solution in accordance with the teachings and spirit of Islam.
by Waris Mazhari
Some Muslims incorrectly believe that any rule whose origin is from outside the four schools of Sunni jurisprudence is prohibited, and that is why they oppose the argument for making three talaqs in one sitting to be counted as just one.
The issue of triple talaq in one sitting has once again become a subject of heated discussion. Many Muslims continue to oppose the argument that uttering the word talaq in one sitting cannot dissolve a Muslim marriage. This is because triple talaq in one sitting as constituting an irrevocable divorce has been the position of many (though not all) of the scholars affiliated with the four major schools of Sunni jurisprudence for centuries.
Some Muslims incorrectly believe that any rule whose origin is from outside the four schools of Sunni jurisprudence is prohibited, and that is why they oppose the argument for making three talaqs in one sitting to be counted as just one. However, this concept has no authentic foundation in Islamic jurisprudence. In Sunni jurisprudential history, there are many instances of practices which were followed earlier by others and were later adopted by the Sunni ulema or scholars of Islamic jurisprudence due to changes in socio-historical circumstances.
Since the period of the companions of Prophet Muhammad, a considerable number of Muslim scholars and jurists have insisted that if a Muslim husband utters the word talaq three times in one sitting, it constitutes one talaq. According to Ibn ul-Qayyim (d.1350), the Islamic jurist and theologian, some noted companions of the Prophet such as Ali (the fourth Caliph of the Sunni Muslims), Abdullah bin Masood, Abdullah bin Abbas, Zubair bin Awwam and Abdur Rahman bin Awf, viewed the utterance of the word talaq in one sitting as one, not three, and, thus, as not resulting in an irrevocable divorce (al-talaq ul-mughallaza).
When formulating the law about divorce, it appears that the Quran tends to restrain quick divorce since it clearly suggests that “a divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness.” (2:229)
According to this verse, there must be room for retaining the wife after uttering the word talaq. This would not be possible if triple talaq in one sitting were considered irrevocable. It seems illogical and unnatural that a marital relationship of, say, 30 years breaks off within 30 seconds, without leaving a chance for reconciliation. The Quran (4:22) refers to the agreement which a husband and a wife pledge together as a ‘strong covenant’, and obviously, that cannot be so vulnerable and easily broken by a one-sided decision taken in a state of anger or depression.
Those who claim that three talaqs in one sitting count only as one, and not three — and so does not result in the end of a Muslim marriage — infer their opinion from a hadith recorded in the Sahih Muslim, a collection of hadith reports widely respected among Sunni Muslims. According to this report, Abdullah bin Abbas, a companion of the Prophet, said that triple talaq in one sitting was considered as one in the period of the Prophet, the period of the first caliph Abu Bakr, and during the early years of the second caliph Umar (Sahih Muslim, 1482).
Another tradition relates that a companion of the Prophet, Rukanah bin Yazid, divorced his wife thrice in one sitting. He then regretted what he had done and approached the Prophet. The Prophet asked him how he had divorce his wife. Rukanah answered that he had done so by pronouncing the word talaq thrice. The Prophet asked him if he had pronounced it in a single sitting, to which he replied in the affirmative. The Prophet then said that it had the effect of one divorce and that if he wanted to take his wife back he could.
Defenders of triple talaq in one sitting often cite the enforcement of this practice by Umar, the second Caliph. In response, it can be said that this was intended for the welfare of society in that particular socio-historical context. Umar thought it an appropriate ruling as men had made talaq a joke by taking back their wives even after uttering the word talaq several times, because of which their wives had to suffer, being stuck in a vicious circle and not being able to gain their freedom.
The issue of triple talaq is a sensitive one. Traditionalist Muslim scholars wrongly regard even the slightest deviation from the opinion of their school as unlawful. On the other hand, are the thousands upon thousands of Muslim women whose lives are being destroyed by the effects of this method of divorce.
It is incumbent upon Muslims to find a balanced solution to this in accordance with the teachings and spirit of Islam. Muslims must take initiatives for the reform of the practice of talaq. This reform needs to happen at the level of laws.
Many Muslim-majority countries have reformed their laws and consider three talaqs in one sitting to be just one. Indian Muslims must come forth to support this sort of reform, realising that it is essential for their own welfare.
The writer, a graduate of the Dar ul-Uloom Deoband, is a Ph.D from the Department of Islamic Studies, Jamia Millia Islamia, where he is presently teaching.
My view
1. Uniform Civil Code is the Answer, which Muslim Women will agree and welcome;
2. Because they knew that this will safe guard their interests like any other Bharathiya.
Thank you for reading
JAIHIND.
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