Reform Muslim Personal Law, Use Debate on Triple Talaq as an opportunity to Breach the Stagnation in

A Story by New Age Islam

Faced with a barrage of questions, the ulema have now decided to challenge the progressive Muslims on their theological knowledge and more importantly, the courage, to stand up to their beliefs.

Pakistan reformed Muslim personal laws more than half a century ago, while Bangladesh, after its independence from Pakistan, has instituted further reforms.

Muslim personal law is once again facing legal challenge. But most ominous for the self-declared guardians of Islamic Sharia in India is the societal challenge. Unlike the Shah Bano case three decades ago, Saira Bano’s plea now has many outspoken supporters within the community. Ulema from Muslim Personal Law Board are facing tough theological questions even on television debates. I myself asked a Board member to show in the Quran where it allows instant divorce even as “Isharat al-nas” (alluded/indicative meaning).

Faced with a barrage of questions, the ulema have now decided to challenge the progressive Muslims on their theological knowledge and more importantly, the courage, to stand up to their beliefs. At the same time, they are blaming progressive Muslims for encouraging courts to intervene, while taking their regular subversive position that courts and government should not intervene in matters of Muslim Personal Law as it is a matter of faith.

Rather than being cowed into silence or even dismiss this challenge as an effort to obfuscate matters, progressive Muslims should pick up the gauntlet and battle it out. This should be used as a great opportunity to breach the total stagnation that has prevailed in Islamic theological debates in the country. This will not only help the victims of our Anglo-Mohammedan Personal Law but also help open up issues related to violent extremism that is attracting our youth more and more in the absence of debate. For instance, accepting that triple talaq is not a part of Quranic teachings or even Hadith (sayings of the Prophet). A classical Muslim scholar, Hafeez Nomani, has asked if Quran alone is legitimate Islamic scripture and whether a bid’at (innovation) like triple talaq ordered by the second Caliph Hazrat Umar cannot be considered legitimate. He then goes on to ask that if triple talaq cannot be accepted, as it is a bid’at, then what about Quran, which in its present form is itself an innovation ordered by the same caliph and completed by the third Caliph Hazrat Usman.

These are among the issues that Muslims need to debate urgently for the wider good of the community as well as the nation and the world. We must never forget the solemn warning issued by Canadian scholar Winfred Cantwell Smith in mid-20th century that a healthy, functioning Islam is crucial for world peace. Clearly, the Islam today is not healthy and functioning. So it is not only the Muslims but the nation at large that should welcome an opportunity to debate and understand Islamic theological issues.

But first some facts related to the backdrop in which this debate is taking place. A victim of instant triple talaq, Saira Bano, has sought mandamus in Supreme Court declaring the practices of instant divorce called Talaq-e-Bidat, Nikah-Halala and polygamy under Muslim personal laws as illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution. The Muslim Personal Law Board has decided to oppose any move to scrap triple-talaq.

Saira Bano is not alone. A new study indicates that 92.1% of Muslim women in India want a total ban on instant oral divorce. The report was released by Bharatiya Muslim Mahila Andolan (BMMA). The report gives the following details: “Women are being informed of their divorce via telephone, text message, and even social media with reasons ranging from poor cooking skills to wardrobe and accessories choices under the current system.”

Among several progressive Muslim scholars, including from BMMA and New Age Islam Foundation agitating for reform in Muslim Personal Law, noted jurist Tahir Mahmood has also said that the triple talaq is an absurdity that militates against the words and spirit of the Quran and sayings of the Prophet.

In a comment on NewAgeIslam.com, Naseer Ahmed, a researcher devoted to Quranic studies describes the process of a Muslim divorce in this way: “The divorce process starts with a verbal divorce followed by a period of 4 months or three menstrual cycles during which the woman stays in her husband’s home. If during this period or before the actual physical divorce, if they cohabit the divorce is off. The actual physical divorce means living separately as a divorced couple after the final pronouncement of the divorce at the end of the 4-month period. The number of times ‘talaq’ is said is immaterial. It must be said at least twice with a gap of 4 months as described above. The final pronouncement should preferably be in the presence of arbitrators if the arbitration has failed to make them change their minds. They can reunite and call the divorce off any time before the final separation takes place and they start living separately as a divorced couple. Once the physical divorce has taken place and they start living separately, they cannot reunite except through a fresh marriage which has conditions attached. Any other process is not in accordance with the shariat of the Quran.”

Renowned Islamic scholar Javed Ahmad Ghamdi interprets the Quranic concept of divorce, explained in several verses, in the following words: “If a husband has decided to divorce his wife, he should first wait until she has completed her menstrual cycle and then desisting from any further carnal relationship, he should utter the divorce sentence just once. The wife, after she has been divorced in this way, must stay in her husband’s house for a period of three menstrual cycles... If after this period of Iddat, a man is still firm in his stance, his wife shall be considered as separated permanently. She is now a free woman and if she wishes to marry some other person, she has all the right to do so and must not be inhibited in any way.”

However, the issue is not just triple or instant divorce, but reform of Muslim personal law itself. Consequently, the demand should not be made only to ban the rampant tyranny of triple talaq. This is one of the evils emanating from the personal laws instituted for Muslims by the British. Hardly any Muslim in India follows the Quran-based practice of divorce in three stages, encompassing three menstrual cycles.

After Independence from the British, a united Pakistan had refused to accept the Anglo-Mohammedan Law and reformed its personal law in 1961. These reforms have passed the test of time. Pakistan has since gone through much upheaval including an era of Nizam-e-Mustafa under President General Ziaul Haq, in which even traditional pre-Islamic forms of punishment like whips and lashes and public flogging were practised. So what progressive Muslims in India should be and indeed have been demanding for long is reforms in Muslim personal law itself.

Reform of Muslim personal law is the need of the hour. A demand for this has been made for decades in conferences, seminars and marches, organised by several progressive Islamic organisations including New Age Islam Foundation. These demands need to be intensified and peaceful demonstrations organised on a large scale, demanding that the government reform these laws. It will inevitably be opposed and equally inevitably expose the two-facedness of Islamic fundamentalists in the country. This would lead to a much needed debate on the hypocrisy of our ulema.

It is for Government of India to take a call in the matter. Why should Indian Muslim women not deserve the protection of Islam provided to their counterparts in Pakistan, Bangladesh and elsewhere, practically in the entire Islamic world, except Saudi Arabia? Countries like Egypt, Iran, Jordan, Morocco, even Yemen and Sudan have more modern Muslim personal laws. Why should Indian Muslims suffer the indignities imposed by the British under an Anglo-Mohammedan law? Particularly so as the Muslim-majority countries formed as a result of the unfortunate partition of the country have already thrown away the yoke of the British imposed personal laws. Indeed, Pakistan reformed Muslim personal laws more than half a century ago. After its independence from Pakistan, Bangladesh has instituted further reforms, making it a more modern country. Indian Muslims are the only one in the region lagging behind.

The government should forthwith promulgate a reformed Muslim personal law on the basis of President Ayyub Khan’s reforms in Pakistan in the early 1960s, though this too will require slight changes, particularly in the ages of marriage fixed for boys and girls fixed at that time. For the moment, I am not suggesting Moroccan or Tunisian reforms, though they are the latest and more modern, as this might give our ulema an excuse to claim fiqhi (jurisprudential) differences. But with Pakistan and Bangladesh we have no such differences. I am giving here a summary of the Ayyub Khan-amended personal laws. You will notice that even in these amended laws the marriage age is fixed at 14 for female and 16 for male. This must have been progressive for the time, perhaps even today in Pakistan. I hope that is not the case in India. But when Saudi Arabia allows girls to be married at one and for marriages to be consummated at nine, this certainly was progressive. But India should not accept that and the age of marriage should be fixed according to contemporary standards.