‘It is time for the ulema to introspect’

PROF. TAHIR MAHMOOD is not a man of casual words. Everything about him is measured, from his words to his time. What is uninhibited, though, is his view on the Muslim religious leaders whose rigidity, he believes, has forced the highest court to intervene to grant justice to aggrieved women. What is more, he does not foresee the ulema getting into introspection mode anytime soon following the Supreme Court judgment invalidating instant talaq. “Though the ulema have been restrained in their reaction to the Supreme Court judgment, some of them regard it as an intervention in the personal laws of the community. I read about the imam of Fatehpuri Masjid being critical of it. Others, though, have been cautious and pragmatic in their response.”

Mahmood finds the judgment of the five-member bench “half-hearted”. “The judges have merely put aside triple talaq but not provided a clue beyond it. Triple talaq at one go, or instant talaq, is not the only form of biddah,” he says. A fierce critic of orthodoxy, Mahmood, who has been the Chairman of the National Commission for Minorities (NCM), is well known for taking on the establishment. As the NCM chief, he had suggested that Kashmiri Pandits be given the minority status in the State, and ensured that the Christians who suffered incidents of violence in Odisha and Gujarat got justice. Even as the triple talaq debate unfolded inside and outside the highest court, he was that rare intellectual who pointed out that divorce could not be held as an essential part of Islam, and hence triple talaq had to go. Mahmood stands vindicated after the Supreme Court judgment. Incidentally, the Chief Justice of India J.S. Khehar has quoted him extensively in his judgment. Excerpts from an exclusive interview with Frontline :

As a legal expert who had said as early as last year that triple talaq was not an essential part of Islam, how do you look at the Supreme Court judgment?

Not just triple talaq, talaq itself is not an integral part of Islam. Talaq itself is to be avoided. Talaq is the worst of the permitted things in the sight of Allah. It is allowed only after all avenues of reconciliation have been explored. The Prophet had nine wives. He did not divorce any of them. There were many provocations, but he did not divorce them. He set an example for the rest of us. And yet we have the Chief Justice of India saying that it is an essential practice of Muslims, that it has been around for 1,400 years and therefore enjoys constitutional protection. I have never heard of such a thing earlier. Fortunately, he remained in a minority on the bench. Other judges openly dissented from this view. They had to; it is common sense.

Is the judgment a step in the right direction?

The judgment is absolutely fine. It could have been better, though. The judges stopped with saying that they were setting aside talaq-e-biddat. But instant talaq is only one of them. According to the Quran, every divorce has to be revocable within three months, and preferably be revoked as well. They did not talk of that.

There is a view that the government of India wanted the complete divorce procedure to be stopped by the court, but stopped short of saying that maybe talaq-e-ahsan and talaq-e-hasan have to go too.

I have not heard that. We must remember that the government of India was asked by the court to respond. It did not go there on its own. Be it led by the Congress or the BJP, the government was duty-bound to respond. And what could it have said? That it was okay with triple talaq at one go? It is not possible. In the Quran, men are not just advised; they are more than advised; there is a persuasion to the husband to reconcile in case of differences or even revocable divorce. That makes instant talaq null and void. A period of three months is given to the husband to consider wisely, calmly. If the man takes the divorce back within those three months, either through word or action in the privacy of his home, it is fine, with no third-party intervention. This is talaq-e-ahsan. It is not a form of divorce.

Now supposing after some time, one or two years later, he has another quarrel and divorces his wife—once again, this divorce is revocable within three months. Again, the wife will remain with the husband to give reconciliation a better chance. It is like an incentive for patch-up, but often people throw out the wife. It is nonsense. However, if the husband agrees to reconcile, there is no problem. Since something like this can happen many times, this was a way in which Islam took care of it. Before Islam, it was a rampant practice: men would marry and divorce, then take back divorce. Islam reformed it. Revocable divorce is permitted only twice. After the third divorce, a man cannot revoke it or marry the woman again.

It is a matter of ignorance that people think triple talaq is the only way of divorce. After the first divorce and the conclusion of iddat (waiting) period, remarriage is possible. Within the iddat period, a man can annul divorce with private intimate conduct. The ball is in the husband’s court during the iddat period. After the iddat period, the ball is in the woman’s court. It is the prerogative of the wife, whether she wants to continue or not. If she does, no problem. There can be a simple nikah afresh, without the need for halala and so on.

Here a concession is given: in the Arab world, most divorcees and widows were married immediately after the iddat period. Many used to marry five-six times. No widow used to stay single. Even the Prophet’s wives, except one, were either widows or divorcees. After the third divorce, there is no remarriage. Now the woman is a single independent woman. She may choose to marry another man of her own will. Now supposing he dies or they have a divorce after some time, then she performs the iddat of the second husband. After that, if she chooses to marry her first husband again, it is allowed. It has been distorted into halala, a sort of marriage with the precondition of divorce. Islam has sanctioned a liberal, pro-women law, but it is so badly messed up by our ulema.

The judgment is like the reiteration of the famous Shamim Ara case.

Justice Kurian referred to the Shamim Ara case, saying we have already decided the Shamim Ara case and that in case of divorce, only the Islamic way has to be followed. He was right. They only needed to make one addition, that there is no provision for instant triple talaq in Islam.

The Chief Justice of India did not need to write 272 pages to say that triple talaq is an essential practice of Islam. It is not. He has referred to Christian and Parsi reforms, Hindu reforms and so on. He has quoted 22 pages from my book Muslim Law in India and Abroad . He has spent 30 pages on Quranic verses. But there are only a handful of Quranic verses on talaq. He has quoted all the judgments on talaq. If you delete irrelevant material, only 50 pages would be left of the judgment. Maybe that is why it took more than three months to write the judgment. And Justice Nazeer went along. He merely signed it.

The All India Muslim Personal Board claims that the court agrees that personal laws are fundamental laws and cannot be infringed upon. What is your opinion?

That was said not by the court but by Justice Khehar. What Justice Kurian said has led to the deduction by the AIMPLB that personal laws are fundamental. However, in the same case, the judges have said triple talaq is unconstitutional. There is a paradox there.

There is an interpretation that it will lead to empowerment of women.

That is another extreme. Some women are saying that it is Eid for them. It is stupid. The court has only set aside instant triple talaq. It has not stated clearly what the legal condition will be, if, say, somebody gives triple talaq today. The Court should have said that in the case of triple talaq, whether you say it three times or 30 or 40 times, it will be considered one divorce. But the court has not said so clearly. At the social level, neither the maulvi nor the family will allow this.

We cannot ignore the gender aspect of the judgment. Even the Prime Minister has talked of gender equality after the judgment.

Well, he was waiting for it. But it is time for the ulema to introspect. The ulema claim that the divorce rate among Muslims is extremely low. The fact is that most divorces are not reported. The court is the last resort. Young Muslim women and old Muslim women alike were facing cruelty. The Supreme Court has sought to stop this. But it is a half-hearted attempt.

But do you think the ulema will introspect now?

Who can tell them this? You cannot reason with them. This time they are more cautious. The AIMPLB claims that the decision is in their favour; only Khehar’s judgment is in their favour. They have linked Kurian’s word with his. You cannot blame them for this.

Does the judgment give primacy to the Quran ahead of tradition?

Yes, 100 per cent. It is true of both minority and majority judgments. There is nothing wrong with it. Even Zakia Soman pleaded for a Quran-based law. The judges said the same. When there is no instant talaq among the Shias, members of Ahl-e-Hadith sect and 22 Muslim countries, on what basis can anyone claim that it is an essential part of the faith?

There are fears that it might lead to a uniform civil code.

People will always say that. They said the same thing with the Special Marriage Act, 1954. UCC is not easy in this country. It is not about Muslims alone. The Sikhs have had their own law since 1909. Limited civil code is already there with respect to child marriage, dowry, etc.