By Mohammed Umar for Twocircles.net
State driven acculturation of minorities is often deemed as impinging upon the civil liberties, for the reason that it chokes the communities towards relinquishing their autonomy. It is thus often treated as something inappropriate for the ideals of a democracy. For the secular and the democratic republic of India, under the present dispensation, the situation has assumed alarming proportions. Especially after the Law Commission’s release of questionnaire last year, discussions on the Uniform Civil Code (UCC) have been quite heated up.
In recently concluded Uttar Pradesh elections, the laid out narrative has been that Muslim women saw Modi as their Messiah who would pull them out of the tyranny of triple divorce and restore their dignity and status; and thus, voted for his party in large numbers. An alternate understanding of this assertion can be that more than their family members and the community itself, those women have suddenly discovered a compassionate sympathizer and a friend in Modi.
We will test the narrative in this article. But, first, let us briefly assess the position of triple divorce in Islamic Law itself.
No sanction in primary sources of Islamic Law
Be it the Quran, or sayings of Prophet Muhammad, triple divorce finds no place in Islam. The Quran has a set procedure of talaq (divorce by husband) and khula (divorce by wife) mentioned in its 2nd and 65th chapter. Prophet Muhammad (PBUH) condemned this pre-Islamic practice of the Arab community and as the record goes, he stood up in anger when he heard of one such incidence of triple divorce and said: “Are you playing with the Book of Allah who is Great and Glorious while I am still amongst you?”
For further exposition of the legalities, one can refer to Professor Tahir Mahmood’s “The Muslim Law of India”. Professor Mahmood is one of the leading authorities on the subject and has explained the step by step procedure in his work.
Indian Judiciary
There is a long thread of judicial observations by learned Indian judges, disapproving the triple divorce. It would suffice to cite some of them to make the point clear.
Justice Krishna Iyer in Yousuf Rawther v. Sowramma said-
[T]he view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions.
Then, Justice Baharaul Islam in Sri Jiauddin Ahmed v. Mrs. Anwara Begum pointed out that a plain reading of Chapter IV Verse 34, 35 of the Quran makes it clear that divorce cannot be assigned without a reasonable cause and also it must be preceded by “attempts at reconciliation between the husband and the wife by two arbiters one from the wife’s family the other from the husband’s”. He also rejected the theory that the whimsical and capricious divorce “is good in law, though bad in theology” and observed that such a statement renders the women as chattel belonging to men, which the Holy Quran does not brook. In 2002, the Supreme Court of India in Shamim Ara v. the State of U.P cited this observation with cent percent approval.
In yet another relatively recent judgment –Masroor Ahmed v. State (NCT of Delhi), authored by Justice Badar Durrez of the Delhi High Court, it was categorically emphasized that the triple divorce is considered to be sinful. It was deprecated by Prophet Muhammad and is “definitely not recommended or even approved by any school”.
The judicial position is thus settled. After Shamim Ara case the law of the land does not approve triple divorce. It is, therefore, useless to have a political debate on the issue. Nevertheless, given the suitability of the topic to the political interests, the topic remains in the circle.
Social Movements and Politicization
Collectives like Bhartiya Muslim Mahila Andolan (BMMA) and Muslim Women Rights Network (MWRN) have time and again asserted that the majority Muslim population rejects the idea of triple divorce. They have even done extensive empirical studies on the subject. Contrary to the popular belief that they are fighting the patriarchy triggered by Islamic dogmas, their articulation rather claims the rights given in Islam itself.
On the other hand, the BJP has realized the potential political dividends of the issue. Firstly, it will divide the Muslim opinion and put the community in a catch-22 situation, ensuing an internal conflict between nontraditionalists and Maulvis. Secondly, it will help the BJP in an image makeover so as to shed the accusations of being ideologically communal. Thirdly, it will reap tangible benefits in the form of an increase in the Muslim vote bank, as it has already been claimed by the party after the Uttar Pradesh elections (however, this hypothesis stands severely challenged). Fourthly, it will help keep alive the issue of the UCC, even if we know that in a multicultural, multi-religious and multi-ethnic Indian society it is impossible to have a uniform code regulating the personal matters of individuals. Fifthly, singling out Muslims in the garb of patriarchy and excluding the shortcomings of the Hindu law is an intelligent card to gain Hindutva vote bank; much like when Congress reversed the Shah Bano judgment in order to retain its Muslim vote bank.
Thus, there is a bigger question mark on the intention than on the action per se. Precisely because of this, Shaista Amber, the head of the All India Muslim Women Personal Law Board petitioned the Election Commission of India, demanding action against the BJP for using the issue for the furtherance of its political interest, devoid of any genuine concern.
Now, if Hindus can agree to be governed by Hindu Code Bills, why can’t Muslims agree for umbrella legislation? As far as a codification of Muslim law is concerned, I don’t think there should be much of a problem with that. In fact, most of the law is already written and available in text since Islamic jurisprudence is a well-established discipline. When Hindu code bills were passed, much of the Hindu law was traditional and scattered and it was because of this major factor, the need of uniformly codifying the Hindu law was felt.
When it comes to the UCC, three questions must be asked- Can a directive principle of the Indian constitution (regarding the UCC) trump the fundamental right? OR Can we make a hierarchy in fundamental rights themselves placing Article 15 (prohibiting gender discrimination) above Article 25 (right to freely profess and practice the religion)? OR More fundamentally whether at all, there is a conflict between the equality clause (Article 14) and Muslim law?
Few more questions must also be asked. Should we give a chance to the ongoing social movements towards the abolishment of triple divorce to evolve? Reputed Muslim legal experts like Professor Tahir Mahmood, Professor Furqan Ahmad, and Professor Faizan Mustafa have already made enough juristic literature available in public domain that is now frequently cited by reformist members of the Muslim community to build a public pressure on the religious authorities in the country. Secondly, empirical data has often shown that social evils find their treatment only in those reforms which come from within. Why is it that in spite of prohibiting dowry and domestic violence, these socio-legal offences still remain a norm in our society? Why is it that in spite of the codification of succession laws, Hindu women have still not acquired the courage to claim their share in the property? Why is Modi and Co. silent on twenty lakh Hindu women who are abandoned and separated, with the corresponding numbers in Muslims and Christians being 2.8 lakh and 0.9 lakh respectively? Just after Modi became the Prime Minister, Jashodaben had filed an RTI application seeking details of the security that she was entitled to as the PM’s wife. She was denied the answer. She was even denied the passport copies of her husband as she failed to produce her marriage certificate or a joint affidavit with her spouse.
Marriage is an institution in itself; and family – the basic unit of the society. So unless there will be a mass scale societal reforms we cannot expect the things to change merely through straight jacket laws. The majority of the issues related to personal law continue to be decided by the clergy and in all likelihood, the status quo will remain no matter what uniform code is imposed on the religious communities. If the triple divorce was such a burning legal issue, why then in 2015 only two triple divorce related cases were reported in the entire higher judiciary?
The government in its affidavit submitted to the Supreme Court has itself conceded that triple divorce “cannot be regarded as integral to practices of Islam”. The ongoing petition was filed by the RSS’s Rashtrawadi Muslim Mahila Sangh which in itself is questionable (for the reasons of petition’s content and timings both). Their argumentation is different from BMMA that wants the triple divorce to be struck down as being un-Islamic and antithetical to Islam itself. In fact, what RSS says in the petition (now referred to the Constitutional bench)is seen as a covert attempt from the saffron lobby to push for the UCC.
In this entire debate, therefore, we must not fail to appreciate that Muslim women are seeking their rights with no waiver of the pride that comes from being a Muslim, and again, with no desire to have any superimposed reform that has malicious underpinnings. They have once succeeded in pressurizing the All India Muslim Personal Law Board to have more women members in decision making. Nothing stops us from being hopeful, for their potential success in the issue of triple divorce too.
The author is Assistant Professor at the School of Law, Galgotias University, Greater Noida, Uttar Pradesh