For Justice’s Sake

The apex court has the opportunity to enforce the true Islamic law on divorce.

Written by Tahir Mahmood | Updated: March 23, 2016 6:32 pm
supreme court, Islamic law on divorce, Muslim divorce law, muslim group, Islamic organisation, human rights, identity rights, personal law, judicial legislation, india news, nation news The Supreme Court of India.

Bai Tahira, Fuzlunbi, Zohra Khatoon, Shah Bano, Shamim Ara, Iqbal Bano, Khatoon Nisa, Shabana Bano, Shamima Farooqui. This is not a list of female Muslim names taken from Wikipedia but hapless victims of the Muslim law on “triple divorce” who have, since 1976, fought legal cases right up to the Supreme Court to secure measly amounts of money for their sustenance. The stories of their miseries are etched in the pages of the law reports of India.

The latest among the countless Muslim women in the country suffering the pang of “talaq, talaq, talaq” is Saira Bano, who is now before the apex court. Instead of traditionally invoking judicial mercy of ordering the divorcing husband to pay her maintenance, she has boldly challenged the constitutional validity of his action of kicking her out by using the so-called triple divorce formula. Entertaining her plea on February 29, the court has sought the government’s response.

The practice of talaq was most certainly not introduced by Islam; it was rampant in the Arab society of the time and Islam tried to gradually reform in a very humane way. There is nothing in the law of Islam that suggests that the husband is free to pronounce talaq in an irrational or unreasonable manner. It allows talaq, subject to several conditions that are of a dissuasive nature, their purpose being to discourage
the husband from exercising his right without careful consideration.

The Quran enjoins men not to act in haste and to coolly think before deciding on talaq, since “you may dislike something about your wife but, maybe, God has put in her some good for you.” There is nothing in the holy book that shows this provision is discretionary.

Just like nikah, talaq too is not just a word the mere utterance of which will terminate the marriage, but a procedure which must be meticulously followed. Only if all the prescribed steps of this procedure have been duly undertaken will a marriage be dissolved. Unfortunately, traditional interpreters of Muslim law give effect to a talaq pronounced by a man even in sheer violation of the true Islamic law and procedure for divorce, calling it talaq-ul-bidat (innovative divorce). According to them, a talaq-ul-bidat is “sinful but effective” — a strange proposition rendered into English as “bad in theology but good in law.”

If, after pronouncing a talaq-ul-bidat, a husband wants to reunite with his divorced wife, a wholly unlawful practice, based on a very distorted view of the concept of halala, is to be followed. Halala is, in fact, a concept very different from what it is erroneously believed to be. The rule takes care of the rare eventuality of a thrice-divorced woman remarrying but ending up with a failed marriage once again. It is certainly not meant to force a divorced woman to suffer the indignity of sleeping for a while with someone else before returning to the man who has inflicted on her the cruelty of unilateral talaq not recognised by the Quran. Halala, as practised in India, is clearly repugnant
to the fundamental duty of citizens to “renounce practices derogatory to the dignity of women” under Article 51A of the Constitution of India.

The laws in Egypt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have totally derecognised the concepts of triple talaq and halala. It is high time India followed suit and saved countless Muslim families from devastation. The judiciary must act in the matter as no legislative reform seems possible.

If Saira Bano’s plea, now before the Supreme Court, is accepted, there will be nothing “un-Islamic” about it. On the contrary, the court would be enforcing the true Islamic law on divorce and answering the Quran’s call for absolute justice and fairness in society.

The writer is distinguished jurist chair and professor of eminence, Institute of Advanced Legal Studies, AmityUniversity.

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  1. S
    Sirius
    Mar 22, 2016 at 7:36 am
    Great ? So , you can convince the community elders to codify it ? Then it is used by SC to adjucate ..
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    1. S
      Sirius
      Mar 22, 2016 at 7:31 am
      Mr. Mehmood suggestions cannot be agreed to. It's not the job of Judiciary to 'interpret' a religious law and God's word, neither is it to set a precedent that becomes a defacto law. This is a trap for SC and the executive which they should deflect back to the Muslim community . Their community leaders should get together, resolve contradictions and theologies, and, codify their personal laws in a modern way. Else declare that they allow the Parliament to frame laws relating to women's divorce rights. In either case, that becomes the basis for SC and lower courts to adjudicate. The writer says that other nations have successfully resolved the issue, so there is no reason why the Muslim community in India cannot work this out . The priority for the executive . The executive's priority should be economic progress in the theme of 'sabka saath sabka vikas ' ....
      Reply
      1. S
        Sirius
        Mar 22, 2016 at 3:12 pm
        May not be, but the courts are free to adjudicate (and have done so on numerous occasions) applying the rights of citizens under the Consution . Do they have this power in case of Muslim litigants ?
        Reply
        1. M
          MyTake
          Mar 22, 2016 at 8:21 am
          Solution is simple: don't marry Muslim men if you are so concerned! Let the law sort or not sort it out - it does not matter! End of story.
          Reply
          1. K
            K SHESHU
            Mar 22, 2016 at 12:03 pm
            Like any other religion, Islam has some loops. The scriptures have something and the patriarchal clergy dish out something. Reform is needed not only in Islam, but other religions - specially Hindu - too!
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            1. A
              Afzal Ahmad
              Mar 22, 2016 at 8:45 pm
              Quran is perfect otherwise the Islam would not have spread so quickly. It reached to India within the life time of Prophet and a Hindu King of Kerala converted. Please keep in mind that as Swami Vivekanand said that it will be wrong to say that Islam was spread by sword, instead it was adopted due to freshness of approach and right of equality and this was the reason that a large potion of our country converted to Islam. Please read thoroughly then write with open critical mind. As the saying goes, Neem Hakeem Khatre Jan, due semi knowledge the educated Hindus have become more communal than illiterate ones
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              1. A
                Aslam
                Mar 23, 2016 at 1:41 pm
                I don't understand why the non Muslims are shedding crocodiles tears towards the status of Muslim women. If you all are so serious, then please address other more critical issues affecting Muslims such as socio economic backwardness, lack of education, etc. But their hypocricy just wrap them around and they are advertently playing the RSS agenda. Sic of such people.
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                1. B
                  Babu Gupta
                  Mar 22, 2016 at 7:42 pm
                  I do not know which Supreme Court this mullah is talking about. But, if it is Supreme Court of India, then Indian consution has to be forced with no consideration of vote bank politics. And better yet will be to go for Uniform Civil Code after ping it consutionally.
                  Reply
                  1. G
                    G YAGNESWARAN
                    Mar 22, 2016 at 2:34 pm
                    Ridiculous. Why does the blogger wants the Supreme Court direction for reforms in Muslim Personal Law. Doesn't it strike on him that the Muslim leaders should take the lead in religious reforms.
                    Reply
                    1. G
                      Ghulam Muhammed
                      Mar 24, 2016 at 7:01 am
                      The author is from fi Maslak. He wants to impose fism on other Muslim maslaks; 90% Hanafi Maslak followers in India. He wants Indian States to compromise, interfere and subvert Indian Muslims' consutional Freedom of religion. The government and judiciary is rightly reluctant to follow his vested interests in promoting fism through various ruses and pretexts. With Saudia now increasing its stratagic interest in India, Government will do well to keep a vigilant eye on other matters that accompany fi Baggett.
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                      1. G
                        Garry
                        Mar 22, 2016 at 12:35 pm
                        The article shows the sad state of affairs of the so called secular brigade. The author is talking about rules and explaining it from the point of view of Quran instead of consutional position. The thrust of the argument is that Quran is perfect and infallible. What a shame it is.
                        Reply
                        1. I
                          indian
                          Mar 22, 2016 at 3:36 am
                          Isnt it time to enforce Consutional rights, irrespective of religious code ? Should religious code not be confined to spiritual matters ? Why should religion enter social matters such as marriage, divorce, estate creation etc. ?
                          Reply
                          1. J
                            jayaram reddi
                            Mar 22, 2016 at 11:43 am
                            There should be one uniform law for everybody in the country,regardless of religion.
                            Reply
                            1. K
                              khan
                              Mar 22, 2016 at 2:13 am
                              If Supreme Court enforce divorce law then it is bound to endorse other Islamic laws and at the end you will get Islamic consution ...please go ahead
                              Reply
                              1. P
                                pamohamedameen
                                Mar 25, 2016 at 6:43 am
                                What is needed is NOT A CHANGE in the basic laws given in the Quran but a new or reinterpretation of the laws . No one including a great scholar like Tahir Mahmood has the last word on the interpretation. In Islam marriage is a civil CONTRACT so What we need in India as well in other Muslim countries is well drafted Marriage contract proformas that the prospective couple can choose and agree on. Without a contractual condition on the maintenance of a divorced wife, Islamic law does not allow such maintenance to the wife(YES TO THE CHILDREN)
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                                  pamohamedameen
                                  Mar 25, 2016 at 9:09 am
                                  Despite the fact that the author of this article is one of the leading experts on secular and Islamic law, what he says is quite controversial and subject to arguments, his word is definitely not the last word on the subject of divorce and maintenance. He has given his reasons for his interpretations Does the author imply that Muslim Personal Law has become outdated and needs to be modernised. But this contention is debatable as Muslim Personal Law has for centuries pioneered a number of progressive principles which even today are accepted. For example: 1. The principle that marriage is a civil contract involving no change in the legal status of the woman. 2. The wife’s retention of her full legal personality with preliminary capacity to contract and to acquire, hold and dispose of property without reference to her husband. 3. The wife’s continuance in her father’s as distinct from her husband’s family, after marriage as before and her right to inherit from her parents. 4. The wife’s right to demand from her husband, as an essential precondition of marriage, a marriage settlement or mahar (dower). 5. The wife’s right to hizamat (custody of young children in case of separation from her husband with the latter remaining liable for maintenance of the children. 6. The women’s right to re-marry after divorce or widowhood. 7. The women’s right to stite conditions in the marriage contract. 8. The women’s preempatory right of divorce in case of unchasy imputed to her, aside from other cases of cruelty. 9. Divorce by mutual consent. The Muslim Personal Law leaves the parties free to put in the marriage contract appropriate terms to secure the wife’s right. Such terms may include a stition that the husband could not take a second wife and that the wife shall have the right to divorce herself if he did. In view of this, any dispionate observer will find that Muslim Personal Law is quite modern, flexible and adequate enough to suit any developing society.
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                                    anandap
                                    Mar 22, 2016 at 5:37 am
                                    What is the true Islamic law? It always depends up to each Islamic sects beliefs and practices ! As long as Islam do not tolerate liberal mindset, modern civilized ways of life, and gender equality, whatever interpretations it opts, may not be enough for a w reform!
                                    Reply
                                    1. B
                                      Bharati
                                      Mar 22, 2016 at 2:42 am
                                      As is clear from this article, "true Islamic law on divorce" and "the Quran’s call for absolute justice and fairness in society" are totally loaded in favour of the male, and Islam gives no equal and similar right to the female.
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                                        Pujit
                                        Nov 3, 2016 at 9:19 pm
                                        Agree with you dear. But the contention is maintaince and right of women to divorce. There should be some well defined ground on which women could be enled for the alimony , even if it is not written in the marriage contract. It is because fraudalatory contracts are/should not allowed. It is also because of social conditions of women, where women may not be in the condition to define the laws of the marriage at the time of her marriage. Talaq should not be orbitary , person need to tell women that why he can't live with her. There should be some prespecified grounds. And there should be clear provision of women's right in husband's property in the case of divorce and second marriage of the husban.
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                                        1. M
                                          Mukund
                                          Mar 22, 2016 at 7:12 am
                                          Its time supreme court acted according to the consutional law rather then the religious beliefs and values. As such these islamic laws are tking things too far and its disgusting that they misuse the indian laws. In the past Supreme court has acted indifferently and contrary to the laws of land. If these judges do not have a backbone to take decision according to law they must recuse from the hering and leaving the decision to those judges who are worthy of it.
                                          Reply
                                          1. Y
                                            Y U Ask
                                            Mar 22, 2016 at 2:10 am
                                            With due respect to the author, the supreme court of India is a consutional body and it has nothing to do with Islamic law!
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