The divorce debate

Published : Sep 10, 2004 00:00 IST

The All India Muslim Personal Law Board's hesitation to curb the triple talaq system of divorce, apparently owing to pressure from certain sections of the community, comes under criticism.

in Mumbai

* Four years ago, Zaheera Sheikh's husband walked into her room and told that he was divorcing her. She would have to take their one-year-old son and leave the house immediately to spend the three-month separation (iddat) period at her parents' home. The reason for divorcing her was that she had become unlucky for him. "By uttering three words (talaq, talaq, talaq) in less than a minute my whole world collapsed around me. I felt it was the end of my life."

* Four years ago, Afreen Mohammed decided she had had enough of her marriage. Her husband did not work and he was violent and abusive. She had a good job as teacher at a school and saw no reason to put up with the man. Afreen Mohammed applied to the family Maulana to help her get a divorce and recover her mehr. It took two years of aggressive persuasion, forgoing the mehr and giving a bribe to get the divorce approved.

WHY is it that it took Zaheera Sheikh's husband a minute to get a divorce, but it took Afreen Mohammed two years?

Triple talaq has been a contentious issue for decades and many Muslim women have been its victims. Although several attempts were made to curb it, nothing has worked. In early July, the All India Muslim Personal Law Board (AIMPLB) met in Lucknow and debated the issues of scrapping the triple talaq system, introducing a model Nikahnama (a marriage contract) and a new Talaqnama. The triple talaq issue would have been resolved at the meeting as the AIMPLB had approved the draft of a new Talaqnama when it met in Patna in October 2003. But the final nod, which was awaited from the 41-member working committee, the AIMPLB's main decision-making body, never came.

The AIMPLB appeared to have buckled under pressure from a section of Muslims who said that they would not accept the removal of triple talaq and that they would start a nation-wide agitation against the move. Following this controversy and owing to other reasons, the AIMPLB avoided making an announcement stating that a decision would be taken in December when it meets again. Meanwhile, AIMPLB members said that they would try to spread awareness among the community that triple talaq was a "social evil" and that men must restrain from using it.

The board's decision to put off the announcement disappointed activists and women's organisations in Mumbai. For almost a decade these groups have been pushing the AIMPLB to adopt a model Nikahnama, which they had drafted. This would eventually help outlaw a practice, which they believe is completely un-Islamic. At a public meeting held in Mumbai soon after the AIMPLB's announcement, women activists, lawyers and scholars said that triple talaq had ruined the lives of innumerable women and that it was the board's duty to denounce it. "Unless the board publicly says they are against this form of divorce, no amount of `spreading awareness' is going to stop the triple talaq," said Asghar Ali Engineer, a well-known Islamic scholar.

Comprising more than 400 members, the AIMPLB is a representative body of all Muslim sects in India. Every time the board meets, the procedure for divorce is debated and there is hope that it may forbid the triple talaq. Yet each time the outcome is disappointing.

"They chickened out owing to various compulsions, including some political ones. Instead of caving in to the Sunni Barelvi Ulama's threat to launch an agitation against the abolition of triple talaq, the AIMPLB should persuade the Barelvis to see the benefits of advocating the removal of this practice. So much injustice is done to women by allowing triple talaq to exist. This is considered a sinful practice in Islam and we need to educate people about it," Engineer told Frontline. He said that triple talaq is an interpretation of the holy text and divine law that exists only in India. Unfortunately, since the Hanafi law (one of the four schools of religious law in Sunni Islam), which is practised by almost 80 per cent of Muslims in the country, accepts triple talaq, it would be a mammoth task to change it. This is why the AIMPLB's influential role in the community is required for any change to take place, said Engineer.

Ten years ago, a group of seven academicians and scholars in Mumbai drafted a model Nikahnama and presented it to the AIMPLB. It would eventually become the model on which the AIMPLB would draft a new Nikahnama. Uzma Naheed, a member of the AIMPLB, an Islamic scholar and educationist working with Muslim women, is part of the group and has been lobbying with the board to adopt the model Nikahnama. "Our effort is to see women benefit from within the framework of the Shariat. This is very important for any change," Uzma Naheed told Frontline.

The model Nikahnama proposed by the group recommends an arbitration clause in which both parties nominate a person to see whether reconciliation is possible or an amicable separation can be achieved. A three-month timeframe is fixed for arbitration. The Nikahnama, under the Talaq-e-Tawfid clause, gives the woman the right to divorce if the husband marries again without her permission or against her will. This right was given to Muslim women about 100 years ago, said Uzma Naheed.

What is perhaps the most radical clause in the model Nikahnama is the provision that in case a husband violates the couple's Nikahnama and pronounces talaq three times in one sitting, he would have to pay his wife double the mehr. Hence the husband would be forced to think about the penalties involved before calling the marriage off. "We took this provision from the Maliki school of jurisprudence [a school of religious law in Sunni Islam], so it is within the framework of Islam," said Uzma Naheed.

Unfortunately, this clause is causing trouble, said another board member. "It seems too aggressive and drastic. Besides it is believed that women are more emotional than men and they may make rash or hasty decisions." Asked Uzma Naheed: "So when a husband decides to divorce his wife because her cooking is not good, is that not hasty?" The Ulama and the board, she said, realise they have to spread the knowledge that triple talaq is un-Islamic, but they cannot seem to reach the people.

The Nikahnama of Uzma Naheed's group is one among many that have been submitted to the AIMPLB. Prominent Mumbai lawyer Nilofer Akhtar, who works closely with the board, proposed a model Nikahnama on similar lines. But under the Talaq-e-Tawfid clause, Nilofer Akhtar adds that a wife can "exercise her right of divorce on the happening of the following contingencies: [The husband] treats her with cruelty; fails to pay maintenance; deserts her for more than six months; and if he is impotent or is HIV+".

According to Yusuf Muchhala, senior advocate of the Bombay High Court and AIMPLB member, the board took all the proposed Nikahnamas into consideration before drafting the model Nikahnama. But, he points out that if the AIMPLB "wants to achieve social reforms it cannot do it only through legal methods. It has to work at the grassroots level".

"The problem of triple talaq is a non-issue if you use the law," said Flavia Agnes, a lawyer and founder of Majlis, a legal advocacy programme for women. "Muslim women have been protected by the law two decades before Hindu and Christian women," added Flavia Agnes. Legal recourse for Muslim divorce and triple talaq has been available under the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA). The former allowed Muslim women to seek a civil divorce much before their Hindu and Christian counterparts. The MWA came about after the controversial Shah Bano case, where the woman was granted lifelong maintenance by the Supreme Court. Community members approached the government and asked for legislation to rectify "the harm" caused by the judgment. The MWA removed Muslim women from the purview of the general law of maintenance and placed them under special legislation. However, it also gave Muslim women the right to appeal to the courts if she was not paid the stipulated maintenance.

"There is an impression that Muslim law is outside the ambit of the judicial process. This is not true," said Flavia Agnes. A Muslim woman has the right to stipulate conditions at the time of her marriage, which includes adequate mehr, restrictions on polygamy, and demand residence in the matrimonial or other home. She also has the right to challenge arbitrary divorce, said Flavia Agnes.

In fact, as recently as 2002 the Aurangabad Bench of the Bombay High Court ruled that the mere pronouncement of talaq by the husband, or his acts of having pronounced talaq, were not sufficient and did not meet the requirements of Islamic law for divorce. The court stated that the husband was required to satisfy the preconditions of arbitration and reasons for talaq. Asked Falvia Agnes: "Why is it that legal recourse has not filtered through the community and women continue to suffer arbitrary talaq? This is why the board's sanction is imperative. Only then will the heads of the community be forced to forbid triple talaq."

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