A monstrous wrong

“I HAVE no hesitation in saying that the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Muhammadan law.” Mohammad Ali Jinnah’s censure in the Central Legislative Assembly on February 17, 1925, was provoked by the opposition to Sir Hari Singh Gour’s motion for a Supreme Court in India, which he heartily supported. It was inspired no less by personal experience of over two decades as counsel at the Bombay High Court and as the successful mover of a Bill to override a manifestly wrong decision of the Privy Council. If not set at naught by legislation, it would have ruined many Muslim families all over India. It was in respect of family trusts, which were well recognised in the shari a (Islamic law) for centuries, the wakf alal awlad .

Legislation set right only this one wrong. Under British rule, none could have set right a monstrous wrong born out of sheer ignorance and arrogance of British judges by which they discarded for good, in one fell swoop, the centuries-old sharia in favour of secondary works by British writers. The consequences of their fateful errors are at the core of the current debate on a far more important aspect of Islamic law as practised in India today.

Not only the Muslims of India but the country’s entire legal community was fortunate in having in its midst in those times two judges of great learning in the sharia , Hindu law and also English law. One of them was Syed Ameer Ali of the Calcutta High Court, who was elevated to the Judicial Committee of the Privy Council. The other was Syed Mahmood of the Allahabad High Court. Both were erudite scholars in jurisprudence, steeped in Islamic theology as well as English literature, and modernists and rationalists who respected tradition. Any civilised country would have been proud to have them. English judges, sitting in London and ignorant of Hindu and Muslim law, felt uncomfortable when they were asked by Indian jurists to understand and appreciate the laws of their country. They dismissed the rulings of Ameer Ali and Mahmood with faint patronising praise because they knew no better.

Much more is known of Ameer Ali than Syed Mahmood. Ameer Ali’s Tagore Law lectures Mahommedan Law in 1884 , a work of authority, A Short History of the Saracens and The Spirit of Islam won him fame beyond the legal world. The last is a history of the evolution and ideals of Islam. It included The Life of Mohammed .

Syed Mahmood, the second son of the founder of Aligarh Muslim University, Sir Syed Ahmad Khan, wrote out its constitution at an early stage and asserted that the goal of the Mohammedan Anglo-Oriental College was a Muslim university. The best profile of the man was written in an excellent compilation entitled Indian Judges and published by G.A. Natesan of Madras in 1932. One hopes that the works on India’s freedom movement—compilations of important documents and speeches—will be reprinted. India owes a lot to Natesan. Fortunately, it is reprinted in the ably compiled Mahmood Number of the Aligarh Law Journal (Volume 5, 1973; 398 pages; Faculty of Law, Aligarh Muslim University, to which this writer is indebted).

In the Full Bench case of Jafri Begum vsAmir Mohammad Khan, when the Chief Justice and Justices Oldfield and Brodhurst merely answered the questions referred to them in the affirmative or negative without stating more, Justice Mahmood felt himself bound to reserve and deliver a full judgment after consulting the original authorities on Mohammadan law on the question. In doing so, he said:

“The only means of information consists of books of reference which are either incomprehensive compilations or abbreviated translations. Another difficulty is that the language of the people and consequently the vast majority of advocates who appear in those courts are those who must speak English and who, as a matter of fact, are not likely to refer to the original Arabic authorities . I reserve the grounds of my conclusion in the hope that I may perhaps be able to make my judgment of such a nature as might in some measure help to remove the existing cloud of judicial exposition on these important questions” (emphasis added, throughout).

A month later he delivered an elaborate judgment dealing not merely with the case law but explaining the principles of inheritance under Muhammadan Law as expounded in the Quran and the authoritative commentaries.

One finds a fuller exposition of this view in his speech at the 1894 session of the Mahommedan Anglo-Oriental Education Conference. Justice Mahmood said: “The courts in India are bound to apply and decide cases according to personal laws. Thus, even purely material considerations suggest that a respectable section of the Muslim community shall have a command over the Arabic disciplines and the laws of Islam in order to give quick and easy answers to all questions relating to their internal cultural and societal aspects so that there may arise no confusion in the minds of the courts in India on these matters. Indeed, all the books so far written in English on Islamic law supply such an inadequate, and at times spurious, information that great confusion is likely to arise in the administration of the personal law of the Muslims unless access to original and authentic books on Fiqh (Muslim Law) in Arabic is readily available.”

By then he had delivered judgments more than one in which he freely drew on the Quran, the hadith (compilations of Prophet Muhammad’s precepts and practice) and authorities in Arabic.

On February 9, 1885, he delivered his own judgment in a case decided by a Full Bench of five judges Gobind Dayal vsInayatullah (7 Allahabad 775). Four pages of this Official Report of the Case (pages 801, 802,806, 807) reproduce in footnotes quotations in Arabic from the texts he cited. His judgment testified to his learning and moral courage, for which the Great Dissenter was known, to the annoyance of the European judges. He said of the Hedaya which was commonly relied on by English and Indian judges: “I have to say that those materials appear to me to be in several respects inadequate. They are to be found in the Hedaya , or rather in the translation of the Hedaya made by Mr Hamilton about a century ago, under the orders of the Governor-General, Warren Hastings. It was not, however, a translation of the original Arabic text, but of a Persian translation. For that work gratitude is due to Mr Hamilton, but at the same time I am afraid it has been sometimes the source of mistakes by our Courts in the administration of the Muhammadan Law. … I could easily support every word of this definition by original Arabic texts of the Muhammadan Law itself, but I will confine myself only to such texts as bear immediately upon the main propositions involved in this case.

“Now, the main authority upon which the learned Judges relied for the view that the right of pre-emption does not exist before sale, is a passage in Mr Hamilton’s Hedaya to be found at page 568, Vol. III, of his translation. The translation is at its best a very loose one when compared with the original Arabic text.” How on earth could English judges have discovered such errors?

Little did this great judge know then that his erudition and that of Ameer Ali would be rendered irrelevant by a stroke of the pen wielded by judges of a court superior to them in the judicial hierarchy but far inferior to them in learning in Hindu law and Muslim law. The Indian judges’ reliance on relevant original texts was arbitrarily discarded, inflicting grave damage on the very people who had followed their laws for centuries. In one vital respect, the baleful consequences are still the Muslims of India; partly because of circumstances but largely because of the ignorance of the ones who profess to lead them.

In 1894, the Privy Council held that Wakf alul awlads, family trusts in Muslim law, to be invalid. English law abhors property tied up in perpetuity while Muslim law has always accepted family trusts in perpetuity with a dedication to charity on the failure of the settler’s family. InAbdul Fata Mahomed Ishak & Ors. vs. Russomoy Dhur Chowdhry & Ors. (22 Indian Appeals 76) it referred to two “elaborate judgments” to the contrary by “Mr. Ameer Ali” in the Calcutta High Court and the law he expounded in his “Tagore Lectures” (page 85) and proceeded in the very next page to dismiss them out of hand in words no English, French or German scholar on Islam would have used. But these were ignorant, yet opinionated, judges as, indeed, were English Counsel who could not instruct them, as the judgment pitiably reveals: “The opinion of that learned Mahomedan lawyer is founded, as their Lordships understand it, upon texts of an abstract character, and upon precedents very imperfectly stated. For instance, he quotes a precept of the Prophet Mahomet himself, to the effect that ‘A pious offering to one’s family, to provide against their getting into want, is more pious than giving alms to beggars. The most excellent of sadakh is that which a man bestows upon his family’. ..

“As regards precepts which are held up as the fundamental principles of Mahomedan law, their Lordships are not forgetting how far law and religion are mixed up together in the Mahomedan communities ; but they asked during the argument how it comes about that by the general law of Islam, at least as known in India, simple gifts by a private person to remote unborn generations of descendants, successions that is of inalienable life interests, are forbidden: and whether it is to be taken that the very same dispositions, which are illegal when made by ordinary words of gift, become legal if only the settler says that they are made as a Wakf, in the name of God, or for the sake of the poor. To those questions no answer was given or attempted, nor can their Lordship see any.” The distinction eluded them.

They claimed: “Clearly the Mahomedan law ought to govern a purely Mahomedan disposition of property. Their Lordships have endeavoured to the best of their ability to ascertain and apply the Mahomedan law, as known and administered in India; but they cannot find that it is in accordance with the absolute, and as it seems to them extravagant, application of abstract precepts taken from the mouth of the Prophet. Those precepts may be excellent in their proper application. They may, for aught their Lordships know, have had their effect in moulding the law and practice of Wakf, as the learned judge says they have. But it would be doing wrong to the great lawgiver to suppose that he is thereby commending gifts for which the donor exercises no self-denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protect so-called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words.” The sophistry is evident.

Next landmark

The Privy Council’s journey had begun. Its next landmark was Mahomed Jaffer Bindaneem vs. Koolsom Bee & Ors. (1897) 24 I. A. 196. The Privy Council ruled that a Muslim widow is not entitled to maintenance out of her husband’s estate in addition to what she is entitled to by inheritance or under his will. They rejected, once again, Ameer Ali’s opinion to the contrary, expressed “in his work on the Personal Law of Mahomedans”. He had expressed it “on the authority of a passage of the Quran” which he had quoted. They relied instead on dicta in the Hedaya and the Imameea (Baillie). What the Privy Council added immediately thereafter should even now bestir people who swear by the “Anglo-Mammedan” Law, enforced during British rule in preference to Islamic law, the sharia . After citing Hedaya and Baillie, the three judges (Lord Whatson, Lord Davey and Sir Richard Couch) pompously proclaimed that “they do not care to speculate on the mode in which the text quoted from the Koran, which is to be found Sura II., vv. 241-242, is to be reconciled with the law as laid down in the Hedaya and by the author of the passage quoted from Baillie’s Imameea. But it would be wrong for thecourt on a point of this kind to attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority .” This was an error of lasting consequence.

To these English Judges the Quran was not decisive, the Hedaya and Baillie were. The last sentence effectively and decisively shut the door to the development of the sharia in British India. India had Muslim lawyers and judges of the highest eminence besides scholars of erudition. They, apparently, meekly submitted to this outrageous ruling, in offensive language, by three judges, who were utterly unqualified in the law on which they ventured to pronounce. That submission has lasted for over a century, bar its rejection in Pakistan and by very few judges in India. We have noted Justice Mahmood’s sharp criticism of inaccurate translation in the Hedaya . In this, he was not alone.

Asaf A.A. Fyzee made a pointed comment in his work Outlines of Muhammadan Law on the Hedaya : “On its value, see the remarks of Mahmood J. in 7 All. 775,798; of Abdur Rahim in Muhammadan Jurisprudence , 41-2, of Ameer Ali, I, 335 and II, 561, of Wilson, 43-4, and of Aghnides, Preface, p.5.”

Fyzee wrote: “The Hedaya was translated by Hamilton and cited by the Bench and the bar. Baillie’s Digest, Vol. I, is based on the Fatawa Alamgiri, and Vol. II on the Shara I al-Islam. … The Fatawa Alamgiri , a collection of fatwas, or the replies of jurisconsults to the questions addressed to them, composed by Shaykh Nizam Burhanpuri and four others under the orders of the Emperor Awranzeb during the seventeenth century.”

The Privy Council affirmed its 1897 ruling in 1902 in Baker Ali Khan vs. Anjuman Ara Begam 30 I.A. 94. Rejection of the Quran was now coupled with rejection of the Hadith. “In Abdul Fata v. Russomoy Dhur Chowdhry (1), the judgment of this Committee delivered by Lord Hobhouse, the danger was pointed out of relying upon ancient texts of the Mahomedan law, and even precepts of the Prophet himself, of taking them literally, and deducing from them new rules of law, especially when such proposed rules do not conduce to substantial justice. That danger is equally great whether reliance be placed upon fresh texts newly brought to light, or upon fresh logical inferences newly drawn from old and undisputed texts. Their Lordships think it would be extremely dangerous to accept as a general principle that new rules of law are to be introduced because they seem to lawyers of the present day to follow logically from ancient texts however authoritative, when the ancient doctors of the law have not themselves drawn those conclusions.” Justice Mahmod was snidely accused of bias (page 113).

Bill moved by Jinnah

By now Indian Muslims had been agitating against the Privy Council ruling on the wakfs. It speaks for the times that the disquiet was shared by others as well. In 1906, Jinnah, while supporting the Wakf-alal-aulad resolution in the 22nd Indian National Congress, cited Ameer Ali to reinforce his criticism of the Privy Council’s decision. He said, “‘A very large number of learned Muhammedans, such as Mr Justice Ameer Ali, Mr Justice Mahmud and many other learned Mohammedans feel that their law is not rightly interpreted by the Privy Council.’ Before introducing the Mussalman Waqf Validating Bill on March 17, 1911, Jinnah presumably consulted Ameer Ali, who claimed that the draft of the Bill was prepared by him. How far Jinnah used Ameer Ali’s draft cannot be ascertained at this stage, but Ameer Ali’s contribution is undeniable. Ameer Ali wrote: ‘With regard to the Wakf Bill, my distinct opinion is that the representations which are being made by the Calcutta Mohammedan Societies to get Government to appoint a Board of Maulvis for expounding Mussulman Law will prove futile, as the Government will never entertain such proposals. The only means which are left to the Muhammedan people for obtaining the benefit of the laws regarding family wakf is to get the Bill which Mr Jinnah has introduced, and which I have drafted (I hope he has not altered it in any shape) passed into law, with modification which may be acceptable to the Mussalman people. But I may, I drafted the Bill with great care’” (Mohammed Yusuf Abbas; The Political Biography of Syed Ameer Ali ; Wajidalis, Lahore; page 281).

Jinnah moved the Validating Bill in the Governor-General’s Imperial Legislative Council in Calcutta on March 17, 1911. He said that the Privy Council’s “decision is not in accordance with the true principles of Mussalman [ sic ] law and their exposition of our law is opposed to the fundamental principles of Islamic jurisprudence.” He cited “the opinions of our greatest lawyers, such as the Right Honourable Mr Ameer Ali”. In the princely States like Hyderabad, the Privy Council had no say.

The Bill was referred to a Select Committee comprising among others Pandit Madan Mohan Malaviya. Surendra Nath Banerjee supported it. The Bill was passed on March 5, 1913.

The Privy Council’s Wakf ruling was nullified, but not its edict on the superiority of Hedaya and Baillie over the Quran and the hadith . That could also have been done by law. The damage that persisted became evident in a case in 1908 in which the sinful triple talaq was upheld. Its stinking corpse is still being carried with respectful chants on the shoulders of bigoted male supremacists.

Sarabai vs. Rabiabai was decided by Justice Batchelor of the Bombay High Court on December 9, 1905 (30 Bombay 537; 8 Bombay Law Reporter 35). Haji Adam Sidick, a Cutchi Memon, died at Bandra on February 11, 1904, leaving a widow, Rabiabai, and a daughter. He had divorced his second wife Sarabai on November 19, 1903, his heirs claimed. She denied this. They said that he had gone to the Kazi of Bombay with some witnesses there to pronounce the divorce of Sarabai. She was not present then. The divorce was pronounced only once. The Kazi was asked to prepare the talaqnama (the deed of divorce). The Kazi did so. Adam Seth, as he was known, signed it. The witnesses attested it. Steps were taken to communicate it to Sarabai, but she evaded it. On his death she sued for provision for maintenance and residence out of the estate. She lost.

Her counsel argued: “In Mahomedan law, there are three forms of divorce: talaqahasan , talaqhasan and talaq-ul-bidaat . In this case, the form of the divorce would be talaq-ul-bidaat . Our submission is that divorce is not complete because there is no valid pronouncement. Simply the words ‘talaqdia’ are not enough in themselves to constitute a valid divorce. See Hamilton’s Hedaya , pages 76, 77 and 80. There must be formal pronouncement. If the word talaq is used by itself and without the addition of the word bain , it would only be a reversible divorce, or talaqrajai .

“Moreover, divorce must be addressed by the husband to the wife; a mere statement in her absence is not enough. But supposing it is enough, then we submit that under the formality prescribed by the Mahomedan Law, there must be triple repetition, though the form may be repeated all at the same time. There must be three pronouncements to effect a valid talaq biddat. We submit that the doctrine of pronouncement must not be extended further. At first the rule was that these three pronouncements should be made separately during three successive tuhrs , but subsequently the Mahomedan lawyers extended it in favour of the husband by allowing these three pronouncements to be made at one and the same time. The rule is thus sufficiently extended in favour of the husband, and no English court should extend it further against the wife.” ( Tuhrs is the period between menses).

Justice Batchelor said: “Then it is said that since this was a final divorce the pronouncements should have been made three times, whereas the Kazi speaks of only one single pronouncement. … There can be no doubt that a talaq-ul-bidaat (or irregular divorce) is good in law, though bad in theology .” These words, which soon acquired fame, sufficed to damn the sinful triple talaq.

The precaution that disappeared

The judge continued: “It must be admitted that the three separate pronouncements alleged to be necessary may be made one after the other in as many seconds, and, the law having advanced thus far, it is difficult to see why everything should be held to depend upon the mere punctilio of repetition. …and it is tolerably clear that the only reason for the separate repetitions was exclusively applicable to the more approved forms of divorce, when there was a repetition in each of three succeeding tuhrs , thus affording the husband an opportunity of reconsidering his decision. Admittedly this precaution has disappeared out of the law , and, unless I am forced to do so, I shall be very reluctant to let important questions of right depend upon whether a formula was said once or repeated three times.”

When did the “precaution” based on the Quran “disappear”? If a rule is laid down in the Quran, can Hamilton’s Hedaya spirit it away? This faithful Hamilton’s Hedaya “appears plainly to support the view here taken. It is also relevant to know that we are dealing with a system where a divorce under compulsion or in a state of inebriation is valid and where divorce though only once pronounced may be effected by many kinds of far-fetched implication, of which the books abound in illustrations. So where the divorce is prescribed in words implying vehemence or amplification (i.e., “an enormous divorce”, a “divorce like a mountain”) an irreversible divorce is effected (Hamilton, Vol. I, pp. 228 et seq.); and here I find as a fact that Adam pronounced the talaq-ul-bain (final divorce) vehemently. This appears from the proof (Exhibit No.6) of which the Kazi admits the general correctness, and is most consistent with the acts and intentions and conduct of the parties. So far as I can gather from the authorities, the triple repetition is merely one of the many forms by which a talaq-ul-bain or irrevocable divorce can be effected, as the same result can be attained by any other words apt for the purpose and so understood. That the Mahomedan Law attaches no magic to the mere repetition of a formula is evident from the circumstance that even in the ahsan or most laudable form of divorce a single pronouncement is sufficient. On the facts of this case, looking to all circumstances, words and writing and intention and conduct, I cannot doubt that there was a valid bain divorce in the biddat form.” A single pronouncement sufficed because there was a three-month period of reflection.

Evident prejudice

Prejudice is not concealed. How authoritative is Hamilton’s “divorce like a mountain”? Of the four counsel in the case, three were European; the fourth was a Parsi. Hamilton and Baillie performed their wonders, page after page. The triple talaq is worse than talaq-ul-bain (final). Admittedly it is talaq-ul-biddat (sinful). Batchelor J. gratuitously remarked “we are not in medieval Arabia, but in modern India”—and Muslims of modern India cling to this sinful divorce.

Batchelor J concluded: “Then, is there anything in the authorities to assist the plaintiff? In the first place, the passage which I have already cited from Hamilton’s Hedaya and Baillie’s Digest are decidedly against her.” That sufficed.

It is cited as an authority on talaq in all textbooks. However, as far back as in 1943 even the founder of the Jamaat-e-Islami Abul Ala Maududi wrote: “Due to want of knowledge Muslims have been generally given to understand that a talaq can be pronounced only through the triple-divorce formula, although it is an innovation and a sin leading to many legal complications. If people knew that triple divorce is superfluous and even a single talaq would dissolve the marriage, of course, leaving room for revocation during the next three months and remarriage thereafter, innumerable families could have been saved from disruption.”

There are two valid forms of divorce and one invalid form. Talaq al-Hasan , the most approved form, consists of one single pronouncement in a period of tuhr , when the wife is free from her menstrual courses. It is revocable during idda , a period of three months’ continence from the date of the declaration. The husband may revoke the divorce at any time during the idda .

The Hasan form is also an approved form, but less approved than the first (Talaq al-Hasan). It consists of three successive pronouncements during three consecutive periods of tuhr . Each of these pronouncements should have been made at a time when no intercourse has taken place during that particular period. These are the Islamic forms of divorce.

Thus, in both cases there is a 90 days’ period for reflection and reconciliation. Shortly after Partition, courts in Pakistan began rejecting the Privy Council’s edict on the sharia and began to consult the Quran to ascertain the law. In Mst. Khurshid Jar vs. Fazal Dad (Pakistan Legal Decisions 1964; Lahore 558) it was explicitly rejected. In Mst. Khurshid Bibi vs. Muhammad Amir (PLD 19678 S.C. 97) the Supreme Court of Pakistan held that it was the duty of the courts to ascertain the law, sharia , from the Quran and the hadith for themselves in preference to the opinions of commentators. It upheld the wife’s right to demand divorce ( khula ) from her husband if she finds the union hateful; just as the husband can ask for talaq.

Quran rejects triple talaq

It is not at all difficult to ascertain the Quranic law on divorce. The Quran has a scheme entire which no Muslim can ignore. Its verses totally negate the triple talaq practised in India . However, even those who accept this overlook the very first step in the scheme of divorce proceedings. It is conciliation. Read this: “And if you fear a breach between the two, appoint an arbiter from his people and an arbiter from her people. If they both desire agreement, Allah will effect harmony between them” (4:35). This is a precise mandate which cannot be ignored. It destroys the very concept of an instant talaq, triple or other, in a temper or otherwise. The arbiters will hear both sides and try to effect a reconciliation. Failing that, either side can demand a divorce; divorce by the wife is called khula ; by the husband it is called talaq. This also averts publicity or mud-slinging. Section 7 of Pakistan’s Family Laws Ordinance, 1961, gives statutory force to the Quranic injunction for conciliation by two arbiters.

The Quran also says: “A divorce is only permissible twice; after that, the parties should either hold together on equitable terms or separate with kindness” (2:229). The two pronouncements are not final. There is still time for reflection for 90 days, when the wife observes continence as explained earlier. That is why Justice Batchelor said that the triple talaq is good in law—the Anglo-Muhammadan law—but bad in theology, the sharia . It is called bida, sinful.

The triple talaq violates the Quran. “And when you divorce women and they reach their prescribed time, then retain them in kindness or set them free with kindness and retain them not for injury so that you exceed the limits” (2.231).

First Indian repudiation

The first Indian repudiation of the Privy Council’s view came from Justice V.R. Krishna Iyer on June 24, 1970, in A. Yousuf vs. Sowramma (AIR 1971 Kerala 261). He quoted from the Quran and the hadith . Justice Baharul Islam also held that talaq must be for a reasonable cause. The Supreme Court agreed with Justice V.R. Krishna Iyer’s opinion “the view has been ventured by Muslim jurists that the Indo-Anglican judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture—law is largely the formalised and enforceable expression of a community’s cultural norms—cannot be fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. … It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him: ‘if they (namely, women) obey you, then do not seek a way against them’ (Quran IV:34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously. … Commentators on the Quran have rightly observed—and this tallies with the law now administered in some Muslim countries like Iraq—that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce.”

The Supreme Court proceeded to note the views of Justice Baharul Islam (later a judge of the Supreme Court), sitting singly in Jiaudin Ahmed vsAnwara Begum and later speaking for the Division Bench in Rukia Khatun vsAbdul Khalique Laskat . In the Jiauddin Ahmed case, a plea of previous divorce, that is, the husband having divorced the wife on some day much previous to the date of filing of the written statement in the court, was taken and upheld. The question posed before the High Court was whether there had been valid talaq of the wife by the husband under the Muslim law. The learned judge observed that though marriage under the Muslim law is only a civil contract, yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage tie, Islam recognises the necessity, in exceptional circumstances, of keeping the way open for its dissolution (paragraph 6). Quoting in the judgment several Holy Quranic verses and from commentaries thereon by well-recognised scholars of great eminence, the learned judge expressed disapproval of the statement that “the whimsical and capricious divorce by the husband is good in law, though bad in theology” and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be effected (paragraph 13).

In the Rukia Khatun case, the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is (i) that “talaq” must for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, “talaq” may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay view, which, in their opinion, did not lay down the correct law. “We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts. ” ( Shamim Ara vs. State of U.P. & Anr . (2001) 7 Supreme Court Cases 518 at pages 524-63.) This is extremely important. The triple talaq is no longer in issue.

Stark choices

Muslims of India cannot avoid or evade the stark choice that faces them. Do they want their law to be based on the Quran and the hadith or on the dicta of Hamilton, Baillie & Company? There is no Quranic sanction for the triple talaq at all. This is beyond dispute.

It is not they alone who face the peril posed by Prime Minister Narendra Modi and the Bharatiya Janata Party (BJP) chief Amit Shah ahead of the Uttar Pradesh elections. A uniform civil code is being made an issue in the elections, as Amit Shah said on November 8 in Lucknow: “An agenda in the U.P. Assembly elections.” Secular forces will support Muslims in the fight against such people.

The national convention of the All India Democratic Women’s Association (AIDWA) adopted a resolution on the issue on December 9 and 10, 1995, in New Delhi. It said: “This convention condemns the propaganda of the BJP for an immediate uniform civil code which is directed against the Muslim community. It protests against its hypocritical claim that it is motivated by concern for women’s rights, in this case, Muslim women. It is this very political platform which in its earlier incarnation as the Hindu Mahasabha and the Jana Sangh had led the opposition to any reform in Hindu laws leading to an opportunist compromise at the cost of women’s equality. … Today the BJP rules in many States. It is the largest Opposition party in Parliament but it has not taken a single step to ameliorate the legal inequalities and infirmities faced by Hindu women under Hindu personal laws.”

AIDWA general secretary Brinda Karat’s report on the convention recorded that “the recent Supreme Court judgment which had said that Hindu laws had been adequately reformed came in for sharp criticism. Women said that if the apex court was going to make such false assertions, it would be a great injustice to Hindu women struggling for justice.” ( People’s Democracy , December 31, 1995.)

A resolution on “Hindu Laws and Women” said: “The Bharatiya Janata Party’s constant critique of Muslim personal law and demand for a uniform civil code has sought to obscure the unequal and discriminatory nature of Hindu personal law. Even a recent pronouncement by the Supreme Court in Sarla Mudgal and others versus Union of Indiaand others states that while Hindus gave up their personal laws after Independence, the Muslims have refused to do so. This is, however, far from reality. Hindu laws, in most key areas, continue to be based on various retrogressive features of old and dharmic Hindu law.”

Not even the most bigoted of Muslim politicians who have opposed the reform of the Muslim personal law can question the impeccable secular credentials of such an organisation. All the more reason, then, for responding positively to its resolution on “Women and Muslim Personal Law”. It is extremely well-informed, makes allowances for religious susceptibilities and helps to crystallise the issues. Moreover, it has an added relevance which transcends the specific problem and relates to Muslims’ contribution to the secular ideal, generally.

For over half a century , the BJP and the Jana Sangh before it, made the uniform civil code a vital part of their election manifesto. In 1989 it was one of the three conditions that qualified its support to the National Front government. It has no issue with Article 371A on Nagaland which bars legislation by Parliament on “Naga customary law and procedure” and “administration of civil and criminal justice” involving that law. Mizoram enjoys a “special status” similar to Kashmir.

On October 28, 1931, Gandhi circulated a Memorandum for consideration by the Minorities Committee of the Round Table Conference in London. It said categorically that “personal laws shall be protected by specific provisions to be enshrined in the Constitution”, an explicit binding protection.

The Congress Working Committee declared in a resolution that “a minority is entitled to keep its personal law without any change in this respect being imposed by the majority”. As president of the Congress, Jawaharlal Nehru recalled, in a letter to Mohammed Ali Jinnah, as president of All India Muslim League, dated April 6, 1938, that the Congress “has also declared that it does not wish to interfere in any way with the personal law of any community”. These solemn pledges were thrown to the winds soon after Partition and Article 44 on a uniform civil code was enacted in 1948.

The BJP’s motive is not protection of Muslim women. It is obliteration of Muslim identity, indeed, the very concept of a minority. More candid is its partner the Shiv Sena whose boss, Uddhav Thackeray, demanded on October 22 that “they [the BJP] should first announce that this country is a Hindu rashtra and impose the uniform civil code”.

What a contrast to Modi’s characteristic hypocrisy. On October 24, Modi said at Mohoba in Uttar Pradesh that “getting Muslim women their rights as per the Constitution is the responsibility of the government and society”. He moaned: “What is the crime of my Muslim sisters when someone says talaq thrice over the phone and her life is destroyed?” This concern was not evident when they and their male relations were killed in the pogrom in 2002 in Gujarat when he was its Chief Minister. Uttar Pradesh goes to the polls early next year. Muslims comprise more than one-fifth of the electorate. He knew, of course, that Muslims would not be pleased with his remarks. But he has set his sights on the Hindu vote and wants to consolidate the Hindu community along religious lines cutting across the caste divide that afflicts Uttar Pradesh. This explains why, on November 23, Home Minister Rajnath Singh asserted that the “triple talaq is a burning issue of our time”. When did it begin to “burn”? For the Uttar Pradesh elections, obviously.

Against global trend

At a time when the world aims at pluralism, the BJP lusts for uniformity and dominance. To name a few, Kenya, Tanzania, Ethiopia, Israel, Sri Lanka, Singapore and the Philippines recognise Muslim personal law. Some of them even recognise sharia courts (see Abdullahi A. An-Naim (Ed.); Islamic Family Law in a Changing World: A Global Resource Book ; Zed Books; London; 2001; The Sharia in Israel by Aharon Lavish; Tel Aviv, 1973; and G.W. Bartholomew, “The Application of Sharia in Singapore”; The American Journal of ComparativeLaw (1964) Volume 13; pp. 385–413).

The Muslim Family Laws Ordinance, promulgated in Pakistan on March 2, 1961, provides for an Arbitration Council to bring about a reconciliation and a 90-day period for retraction. Talaq can be pronounced only by a notice in writing and communicated to the Council’s Chairman. The wife can also stipulate a right to divorce talaq tafwiz ) in the nikahnama (marriage contract). She has additionally the right to divorce ( khula ) and a right to put stipulations in the nikahnama such as a right to divorce if he takes a second wife, the right to visit her family and on finances.

The best course is to place before the Supreme Court a couple of alternatives to the triple talaq of the British era, which comply with the sharia. They must be publicised to educate young Muslim women, preferably in the form of a model nikahnama . However, the fundamental question remains: Is Muslim law to be reformed by judicial edict—of which there is no dearth in recent weeks—or by a legislation based on the consensus within the community itself, like the Shariat Act of 1937.