Having recorded here a viewpoint on ‘triple talaq’ when the
Supreme Court took cognisance of a divorced Muslim woman’s plea in March
and issued notices to various parties, it is only fair to seriously
look at the views of one of the principal parties asked to respond, All
India Muslim Personal Law Board (AIMPLB).
It is important because it pertains to a community that accounts
for 170 million of the country’s population. The media-conducted debate
has so far yielded diametrically opposite views among those who want to
perpetuate with this practice and those who want to end it.
Positions may have hardened due to perceived fear among minorities
over recent incidents of sectarian violence and allegations of
intolerance. However, the triple talaq issue should be viewed separately
and dispassionately. The court’s action is certainly not the first as
there have also been past rulings.
The NDA government has reportedly finalised its response, viewing
it as one of women’s rights and welfare, skirting the larger issue of
uniform civil code. Its political intent would be known when the court
takes up the issue for hearing. We have the AIMPLB response. It has
reiterated that the practice is based on Islamic scriptures and that it
cannot be changed by the law of the land.
On the face of it, it has advanced no new argument. However,
seeking to enlarge its ambit, it has argued on polygamy that is strictly
not related to divorce and on a Muslim woman’s place in the society.
They must be noted for being totally out of the sync with democratic
norms that govern a modern society.
The Board, perhaps anticipating strong opposition, takes any
proposal to end triple talaq as a challenge to polygamy norms that allow
a Muslim to take four wives. It warns that ending polygamy would
“encourage illicit sex.” There is no social, legal or scientific reason
to justify this, nor has the Board put forward any.
"Since polygamy is endorsed by primary Islamic sources, it cannot
be dubbed as something prohibited," it says. "Where women outnumber men
and polygamy is not permitted, women will be forced into leading
spinster's life. In sum, polygamy is not for gratifying men's lust, it
is a social need," the board said.
This is sexism and patriarchy at their worst and put so brazenly.
It calls into question the credibility of the learned men who are
members of the Board. The board has said: "Quran, Hadith and the
consensus view allow Muslim men to have up to four wives." Islam
permitted polygamy but did not encourage it. "However, polygamy meets
social and moral needs and the provision for it stems from concern and
sympathy for women," it said.
On triple talaq, it claims that Sharia has granted this mode of
oral divorce to husbands because “men are better at controlling
emotions.” This smacks of sexism, to say the least. How it reached such a
sweeping conclusion it has not explained, perhaps, leaving it for the
court battle it foresees.
It claims that the triple talaq practice is actually meant “to
protect women” and has provided “an easy mode to end marriages that may
have irretrievably broken down.” Keeping the husband and wife “together
when the husband did not want the woman” made the husband and his family
“to inflict mental and physical torture on the woman.”
One can imagine heads (male) shaking sagely at this line of
argument. There is not even an allusion to the right of the distressed
woman to consent. The Board calls triple talaq “a very private method of
divorce without going to court and making public the differences
between the couple and then awaiting a long process for the outcome.”
Court proceedings and trading of charges by the couple “harms the
reputation of the woman more than that of the man.”
The rights bestowed by religion couldn’t be questioned in a court
of law, it has said. The Quran didn’t fall within the expression of
“laws” that could be challenged. The Supreme Court, it argues, cannot
interfere with “religious freedom” and “rewrite personal laws in the
name of social reform.” “It is better to divorce a woman than kill her.”
In case of a discord, divorce was “a better option available to a
Muslim man than him resorting to “criminal ways of getting rid of her
(wife) by murdering her.”
This is fantastic logic. By the same inverted yardstick, is it
better to whip a child than to behead the child? Is it better to make a
person a slave than to kill that person? The AIMPLB would know that at
least 20 Muslim majority countries, including Pakistan and Bangladesh,
do not allow triple-talaq. Polygamy is banned in Turkey.
The Board wants that "women should appreciate this point that if
the ratio of women is higher, would they prefer wedlock, or let them be
illicit mistresses of men, without any of the rights which a wife gets."
In which century, one may ask, the learned members of the Board are
living? Through advocate Ejaz Maqbool, the Board argues that it was a
“misconception” that Muslim men enjoyed unilateral and unbridled power
to divorce.
“As per Quran, divorce is essentially undesirable but permissible
when needed.” Fine, but does that give the woman any right, any relief
when it is the man, and man alone, who is saying ‘talaq, talaq talaq”
thrice, possibly in anger, possibly in a drunken state? Saying it
through telephone, SMS and Internet is using modern technology for
something medieval.
The affidavit is totally silent on the constitutional rights of
Muslim women. It comes at a time when more and more women are
approaching courts against age-old discriminatory practices. The 68-page
affidavit has argued that the court’s concern for protection of Muslim
women from alleged arbitrary divorce was erroneous as their rights were
protected by Muslim Women (Protection of Rights on Divorce) Act, 1986.
This was enacted by the Rajiv Gandhi government to annul the apex
court's Shah Bano judgment in 1985. That government took a U-turn on the
judgment, pandering to the Muslim orthodoxy. This prompted Bharatiya
Janata Party’s campaign against ‘appeasement’ of the Muslim community. L
K Advani’s ‘Rath Yatra” and a massive launch of the ‘Hindutva’ campaign
followed. The rest is contemporary history.
The Board sagely warns the Muslims. As a result of gender parity
and securing divorce through courts alone, theWestern world’s divorce
rate had shot up. This argument implicitly denounces the universal
principle of man-woman equality. The Board seems oblivious of the fact
that India is not a theocracy, but a secular country. The beliefs and
norms, howsoever sacred, cannot trump the country’s Constitution.
Ironically, the Board recognises the role of the Supreme Court,
but only to ‘assign’ it the “duty to protect its all citizens and act
according to the Constitution.” Then, it declares: “The Quran is not
Indian Constitution. It is applicable in Sharia Court, but Indian
Constitution is democratic and secular, not based on the Muslim laws.”
By implication the Board questions both democracy and secularism.
What is AIMPLB? It is a non-government body set up in 1973 with no
sanctity in law. It cannot speak for all Muslims as the Shia Muslims
have their own Board. It is not clear if the court has given it a notice
to respond or whether it would seek to intervene as a party.
Eminent persons like Prof Tahir Mahmood, on whose interpretation
the Supreme Court had based its verdict in the 1985 Shah Bano case is
among the select few who have demanded that the Boards be scrapped.
Their representative capacity has been questioned. Notably, the Board
has opposed many of the modern legislations like the Right of Children
for Free and Compulsory Education Act, 2009. It has supported child
marriage and opposes the Child Marriage Restraint Act. Should such
bodies be given the right to represent their community?
By Mahendra Ved
Courtesy: The HansIndia
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