Only if the Indian Government stops Muslim appeasement and implements the secular civil-code uniformly upon all its citizens, irrespective of religious groups, would liberate its Muslim women from the oppression of harsh anti-women Islamic laws...

 


 

The Land mark Judgment by Delhi High Court

According a report appeared in the October 29, 2007 edition of the Indian Express, a leading English daily, Justice Badar Durrez Ahmed of the Delhi High Court ruled: “If a talaq is pronounced in extreme anger where the husband has lost control of himself, it would not be effective or valid.”

There is no doubt that this verdict has provided great relief to Muslim women across the country. His Lordship also observed that triple talaq or talaq-e-bidat (divorce in one go by merely repeating the term ‘talaq’ thrice) is sinful but valid, and such a mode for dissolution of Islamic marriages had caused “extreme misery to the divorced women and even to men, who are left with no chance to undo the wrong or any scope to bring about a reconciliation.”

While issuing an injunction on courts that Muslim Personal Law would supersede any contrary customs or usage, followed in dissolution of marriages, Justice Ahmed said, “From henceforth, triple talaq would only mean a single pronouncement of ‘talaq, revocable by the husband or wife if they decide to reconciliation.”

This is for the first time that a court has made “attempts for reconciliation” mandatory after pronouncement of talaq. Till now, efforts for reconciliation, if any, were to precede the divorce pronouncement”, observed Krishnadas Rajagopal.

Differing with the present law that expiry of the iddat period, or three menstrual courses, would act as the deadline for estranged spouses to save their marriages, the court held that couples could still settle their differences by contracting a fresh marriage even after the period was over”, Rajagopal added.

It is needless to say that the court, through the above verdict, had set aside talaq-e-bidat and asserted that mere pronouncement of talaq did not ipso facto, or on the face of the act, amount to dissolution of marital tie between the spouses. The court also observed, “The wife upon whom talaq has been pronounced has the right of residence as well as of maintenance and she cannot be disturbed, she continues to be the wife of the man in the iddat period during the marital tie remains in suspense.”

The court, thus, formalized the status of divorced woman so that she could not be driven out by the husband like a domestic animal.

The court was hearing a bail petition of a young man who, in the absence of his wife, declared talaq in anger after a marital dispute, but later resumed conjugal relation with her, forgetting the fact that he had divorced her. The marriage soured again and the wife, Ayesha Anjum, left the matrimonial home along with their minor daughter. It was only then, when she returned to her husband’s residence, she came to know that her husband had pronounced talaq against her in her absence. Following which she lodged a complaint of rape against her husband Masroor with the local Preet Vihar police station.

In her FIR, Ayesha alleged that her husband had played a fraud by subjecting her to sexual intercourse after divorcing her, in the guise of her lawful husband. But the court quashed the FIR, telling that Masroor’s pronouncement of talaq was in extreme anger and hence inoperative; therefore, the offence of rape did not arise. But reacting sharply to the above ruling, Abdur Rahim Qureshi, the spokesperson and assistant general secretary of All India Muslim Personal Law Board (AIMPLB), said: “Triple talaq is considered valid by all the four Sunni schools in India. I differ with the High Court’s order. Triple talaq pronounced in one sitting is valid and immediately enforceable. It is not revocable as held by the court.” But it is really amusing to note that the judge, who delivered the said ruling, was also a Muslim. However, Mr Qureshi agreed with Justice Ahmed’s ruling that talaq declared in ‘frenzy’ would remain invalid.

Commenting on the said High Court order, Syed Shahabuddin, a senior member of AIMPLB and the editor of Muslim India, said, “The battle is between those who go by the practice of talaq in one sitting and others who believe that such a mode of talaq is not according to the Quran. … The High Court order reflects the correct interpretation of triple talaq – an issue which is the subject of debate in the AIMPLB itself. Every pronouncement of talaq should be interspersed with proper intervals for affording couples an opportunity to reconcile. I support the order of the Delhi High Court in principle wholeheartedly.” (One may find the full text of the verdict.)

It is important to note here that, in 2004, Morocco, by the initiative of the foreign educated King Muhammad VI, adopted a progressive family status code which grants both sexes equal rights to seek divorce and to argue before a judge for custody of children. It also has placed such tight conditions on polygamy as to render the practice virtually impossible.

The Supreme Court Quashed the Allah’s Law of Hilla Marriage

Najma-Sheru-triple-talaq-indiaSheikh Sher Mohammad, alias Sheru, a mechanic by profession, a resident of Kantabania in the district of  Bhadrak in Orissa, was separated from his wife Najma (27) in July 2003, when he was drunk and pronounced “talaq, talaq, talaq” to his wife in a fit of anger. Sheru, a father of four children, pleaded that he did not want to divorce his wife, but the community declared that they could not live together unless Najma went for halala or hilla marriage, lived with the new husband, got divorced and then observed three months and ten days of iddat.

The incident sparked off controversy across the country. Social activist Sofia Seikh provided shelter for Najma and secured a decree from a local religious leader emphasizing that talaq given in an inebriated state or during unconsciousness is not valid. But the conservatives of community, determined to enforce the divine law, obtain another decree from a maulana, saying that a talaq is valid, even if pronounced in an intoxicated state. They also threatened to disfigure Sofia if she did not refrain from un-Islamic activities. They assaulted Sheru and forced him to declare that he had divorced his wife. Najma told the visiting journalists that her community had been forcing her to prostitution in the name of halala.

However, Sofia sent petitions to the National Commission for Women and the AIMPLB. She also moved the matter to court, and after a three-year legal battle, the matter went to the Supreme Court of India. Finally, on April 21, 2006, a Three Judge Bench, headed by Justice Ruma Pal, came down heavily on conservatives of the Muslim community. In a landmark judgment, the Supreme Court Bench ruled that no one can force them to live separately. This is a secular country. All communities, Hindu or Muslim, should behave in a civilized manner. The other two members of the Bench were Justice C.K. Thakker and Justice Markandey Katju. The Bench also directed the Orissa government to provide police protection to the Muslim couple. It should also be mentioned that the Bench also stressed upon the implementation of uniform civil code for all citizens of the country irrespective of their religion.

The response of Muslim groups to India’s apex court’s verdict was on expected lines. Taking strong exception to the ruling, the Orissa unit of Jamiat-ul-Ulema threatened to ostracize the couple further, if they went by the kuffar court’s decision. “The Supreme Court has no power to intervene in religious matters. The apex court should have confined itself to legal matters and litigations alone. It should have consulted religious institutions and clerics before taking such a decision”, said S Sajideen Quasim, the Aamir-e-Shariat (President) of the Jamiat-e-Ulema-e-Hind.

“The verdict seems to be the result of lack of understanding of Islamic laws. … We will certainly drive the couple out of Muslim society if they stay together defying the decisions of the clerics and abide by the Supreme Court verdict”, he added.

The Orissa chapter of Jamiat-e-Ulema-e-Hind, the highest religious body of the Sunni sect in the state of Orissa, also announced plans to write to the President, the Prime Minister, the Chief Minister and Law Ministers of both the state and central governments to look into the matter. It demanded that the whole issue should be discussed in Parliament. Most importantly, the residents in Najma’s native village Kantabania also opposed the reunion saying: “We will not let anybody to stay among us defying the religious fatwa.”

On the other hand, the verdict had come as a blessing for Muslim women, who are being treated like domestic animals and severely tormented by the Islamic law of easy divorce. It has been pointed earlier that, though the Indian judiciary is ready to extend its sympathy within the provision of the Indian civil law to offer relief to the misery of Muslim women oppressed by Islamic law, but most of them fail to bring their cases to court, mainly due to poverty, and lack of awareness and social support. Yet, Muslim women are rising up, slowly but steadily, against the blatant discrimination and inequality perpetrated upon them by Islamic law. Commenting on these developments, Sona Khan, a Supreme Court advocate, said: “The lives of Muslim women cannot be governed by archaic practices like triple talaq. Muslim women should be governed by laws that treat them as equal citizens of democratic India.”

Uniform Civil Code for All Religious Groups is the Only Remedy

Najma’s case was not an isolated one. There was the historic case of Shah Bano, which changed the political contours of the country, and there were the saga of Saddiqunissa and the soul-stirring tale of Gudiya, who have been at the receiving end of the obscurantist Islamic clerics, who have not even spared tennis sensation Sania Mirza, pronouncing a fatwa against dress on the court of play. A survey of Muslim women in Bihar’s Darbhanga district some years ago, Sabina Hussein of the Delhi-based Centre for Women’s Development, found that 8% of Muslim women were divorced. Only three out of eight received their mehr, and that too in paltry irregular installments.

It is not for the first time that the courts came to help unfortunate Muslim women. In 2002, the Bombay High Court, in landmark judgment had ruled, “A divorce between Muslim couples will have to be convincingly proved in a court of law under the civil procedure code and Indian Evidence Act. A mere statement, written or oral, by a man divorcing his wife won’t be enough proof of his having obtained a divorce.” The 88-page ruling by a full bench has now become a binding for the Maharashtra government. The judgment came after hearing in a case filed by Dagdhu Pathan, a resident of Latur, challenging the maintenance claims by his wife Rahimbi. The judgment clearly mentioned that for divorces to be deemed legal, husbands must prove in court all requirements of procedure of a divorce under Muslim laws, like reconciliation, arbitration and payment of mehr.

Saddiquinissa case, “the Lucknow Bench of the Allahabad High Court pointed out that talaq could not be given by the husband in one instance and only comes to force after a certain time which is meant for reconciliation and arbitration by friends and relatives. It also ruled that talaq has to be confirmed by a court, which has to hold that the marriage was dissolved on valid grounds. Only then the talaq would become legally acceptable. Over two decades back, another Muslim woman, Shah Bano, asked a court to ensure support from her husband who had divorced her after 43 years of marriage and thrown her out on the street. The Supreme Court had at that time ruled it could not accept her husband’s plea that he was only bound by Islamic laws. A husband must assist his wife financially after a divorce if she has no other means, it ruled.”

The reader should recall that, while a Division Bench of the Bombay High Court delivering its verdict on the Dilshad Begum and her husband Ahmadkhan Hanifkhan Pathan case on January 21, 2007, Justice B H Mariapalle ruled that, ‘talaq, talaq, talaq’, these three words were not enough for a Muslim man to divorce his wife. Justice Mariapalle observed that the talaq between Dilshad Begum and Ahmadkhan Hanifkhan Pathan was not valid as the husband had not gone through the preconditions of arbitration and reconciliation prescribed by the Muslim law. “The reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings and failure of such proceedings or a situation where it was impossible for the marriage to continue, have not been proved in this case”, the Justice added.

It is to be noted here that even though India is a secular republic, its citizens subject to uniform civil-law. Muslims enjoy a separate civil-code, which is at par with the shariah law, including in laws of divorce, which harshly oppresses Muslim women. But in criminal matters, they have chosen to follow the Indian Penal Code, just to avoid harsh Islamic punishments like flogging, hanging, beheading, stoning to death, amputation of limbs, and so on. The Indian Government practise this ‘double standard’ to appease Muslim leaders and clerics for their votes. As a secular and democratic state, India should implement a common civil code for all its citizens, but Muslim-appeasing political parties are reluctant to implement the same for fear of losing Muslim votes.

There are many influential Muslim dignitaries, who occasionally speak in favour of liberating Muslim women from oppressive Islamic laws, but do not dare raise their voice for the implementation of the secular civil code for Muslims like other religious groups. His Excellency APJ Abdul Kalam, the ex-President of India, once said, “As we all know, birds have two wings. Unless both the wings grow equally, the bird cannot fly. Similarly, the society has two wings, man and women. Both have to be developed equally. Then the society will fly.” But after the Supreme Court ruling on April 21, 2006, mentioned above, a strong debate across the country began regarding the implementation of uniform civil code for all. But, unfortunately, Dr Kalam maintained silence as a mark of his tacit support to orthodox mullahs.

However, only if Government of India would stop politics of Muslim appeasement and show courage to implement the uniform civil code upon all its citizens, regardless of religious affiliations, would liberate Muslim women of this country from the oppressive Islamic law of polygamy and triple talaq.

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