By Firoz Bakht Ahmed*
Shayara Bano, 35, a post-graduate in sociology, the eldest of four siblings, is the most educated in the family who was divorced by her husband Rizwan in a single sitting utterance of the horrendous word, talaq which is un-Islamic being a bida’at (the wrong way). Her case is in the Supreme Court.
In her petition, Shayara has challenged “instantaneous triple talaq” and not triple talaq itself, which is allowed by the Quran as long as the three utterances are spread over 90 days. There have been PILs filed by NGOs and individuals in the Supreme Court but, he says, those didn’t stand as they weren’t filed by an affected party or because they pleaded that Uniform Civil Code be introduced. Shayara’s is the first such case where a Muslim woman has challenged a personal practice citing fundamental rights guaranteed by the Indian Constitution.
With the All India Muslim Personal Law Board deciding to oppose any move to scrap triple talaq in a single sitting and contest the Shayara Bano case that has called it unconstitutional in the Supreme Court, the stage is set for another Shah Bano-like confrontation that had turned into a hot-button issue in the 1980s.
Justices Anil R Dave and Adarsh K Goel sought responses from the Attorney General and the National Legal Services Authority of India on whether “gender discrimination” suffered by Muslim women should not be considered a violation of fundamental rights. Let’s hope that the cart is not put before the horse this time to save the lives of umpteen Shayaras.
As a law abiding Indian, I am often shocked to see the television channels today hovering around the lumpen mullahs of All India Muslim Personal Law Board who are certainly not the voice of sanity but insanity! It is owing to such obscurantist platforms pretending to represent Muslims that the Islam baiters have a field day.
They dictate terms and espouse views on issues that extend from the public domain of Indian Muslims to the privacy of their bedroom. They are wise and venerable men but their physical appearance on television and in newspapers just confirms the unjust prejudices against the majority community. Stoke a controversy involving Indian Muslims and the usual suspects start emerging from the murky and infested woodwork of the AIMPLB. Now there are going to be four of them!
For a start, most Hindus make up their mind about Muslims on the basis of the Muslim faces they see and the Muslim voices they hear in the media which invariably are 80-90-year old men insisting on the status quo. These men (women not seen!) seem to come from antidiluvian times. They are a set of disgruntled, disorganized and divided individuals. Consider the convulsions over issues like triple talaq, family planning, nikahnama, polygamy, Babri Masjid etc. A board member from Kerala, one politician, has also been found guilty of the horrendous crime of rape some time ago.
All that AIMPLB has managed, is tarnish the image of Indian Muslims. Most negative statements the media quotes on behalf of the board, are taken to as trusted by the community. Truth is that an average Muslim is not governed by them. What the board says is a non issue for him. The five personal law boards AIMPLB, AIMPLB Jadeed of the Barelvi sect, AIMPLB (women) and the Shia Muslim Personal Law Board, are no more than a mockery.
As rightly put forward by eminent Muslim lawyer, M Atyab Siddiqui, reality is that Muslims need no law boards, rather the issues of Muslim educational, economic and social backwardness are to be immediately addressed. Time has come that all such wheelers and dealers must be sidelined and the community itself shoulders the burden of bringing itself into the mainstream.
The board is a tower of Babel whose members are incapable of taking a unanimous decision besides indulging in messy deals. A smooth Babri Masjid transaction with Swami Jyendra Saraswati assured two board members Rajya Sabha seats by the then ruling BJP.
The AIMPLB formed in 1972, is a motely collection of 201 members including clerics and some professionals of which 101 are permanent while the rest are on a three-year term. It is felt that the community has to change with the times but most of the board members represent the more orthodox male opinion. They don’t have a progressive viewpoint. Need of the hour is that enlightened lawyers, academicians, social activists, journalists, teachers and clerics are taken in so that the voce of sanity is also heard.
A common Muslim has always objected to the AIMPLB’s plea of representing the community. What’s still more shocking is the manner in which the media people take each and every word of the Muslim board as gospel giving them larger than life importance than their actually extremely dwarfed and iniquitous impression on the Muslim community. “What authority do the board members have to speak for us?” ask Indian Muslims.
Indian Muslims face multiple problems, possibly more than any other prominent religious group in our secular sovereign. Some of the baggage they carry is owing to the angle at which the majority community views them which, in fact, is negative, inaccurate, retrogressive, made of half truths, propaganda, outright lies and trumpt up charges. The other baggage is a result of their own inaction giving rise to lip-serving and opportunistic interlocutors in the form of the personal law boards and their manipulative leaders (so called!).
If the AIMPLB members are told of the progressive measures and reforms regarding talaq, polygamy or family planning even in countries like Pakistan (Family Law Ordinance), Iran or Indonesia, they denounce saying that they don’t follow these countries.
Religious but moderate people in the community believe that the community has to address issues like birth control, taking interest from banks etc in its own interest. The AIMPLB should hold a referendum on such important issues. Broadly, the board’s members are incapable of saying anything that is less than fundamentalist, orthodox, damaging and inflaming.
But the tragedy is that in the din of chaotic pandemonium, the voice of sanity is lost and the media pays no heed to it. Fact is that for those Muslims who choose to embrace modernity, the AIMPLB is an anachronism. What’s still more shocking is that by projecting the entire community as obscurantist, the board even harms the cause of the faithful whom it claims to serve.
Fact is that time and again the Indian Muslims have been cajoled on matters and terms regarding the triple talaq, appeasement, family planning, polygamy, jehad, kafir, jazia, conversion, personal law board etc. As the inhabitants of the land, their joys and sorrows are no different from their Hindu brethren. But what is lamented is that the media has been after Muslims and Islam portraying them as irrational. Media is responsible for distorting Muslims and Islam.
The plight of the average Indian Muslims stems primarily from their myths and misconceptions that the majority community nurtures about them. If not more, we are as adjusting as the other communities.
However, all is not well with the Muslim personal law as it is practiced in India today. Though considered sinful the triple divorce is legally enforceable in the Sunni Hanafi law. Since vast majority of Muslims in India follow Sunni Hanafi law, many Muslim women become victim of this innovated form of divorce. In talaq, it is advisable that the Hanbali, Shafai or Jaffariya dictates are followed since they are lenient systems of Islamic law.
Even the new draft of the AIMPLB’s model nikahnama doesn’t ban the triple talaq. It just calls it unethical. Triple talaq in single sitting has to be dealt with iron hand. If Muslims themselves are involved in the process of reform, it will be seen as having emanated from within. How to involve Muslims in the process? The Pakistani enactment of family law ordinance of 1961 can act as a guideline.
They could issue a similar questionnaire keeping the Indian conditions and specificities in view and evaluate the Muslim public opinion before recommending the necessary reforms. If triple talaq is not abolished right away at least some provisions could be made in the nikahnama to avoid its abuse by man either through enforcement of talaq-e-tafwid i.e. delegation of right to divorce to the wife, or through stipulation that only Qur’anic form of divorce will be given.
A seven-member Commission on Marriage and Family Laws was appointed by the government of Air Marshall Ayub Khan in Pakistan. Among the terms of reference was included whether existing laws governing marriage, divorce, maintenance and other such matters among Muslims require modification in order to give women their proper place in society according to the fundamentals of Islam.
The government of Ayub Khan after a favourable popular response promulgated the Family Law Ordinance that benefited a large number of women. This is a good model for India. One could constitute a commission comprising Muslim women, judges, community workers and lawyers along with one or two ulema.
Also, the wife could stipulate in the nikahnama that the husband will not take another wife during her lifetime and if he does, she will exercise delegated right to divorce that is quite absolute in Shariah. This way of bringing reform may be more acceptable than enforcing it from above.
*Commentator on social, educational and political issues, a community worker; grandnephew of Maulana Abul Kalam Azad