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Islam, Women and Feminism (04 Jan 2018 NewAgeIslam.Com)

The Bill on Triple Talaq May be Bad in Law; But it is the Mullahs Who Should be Blamed for This Mess


By Arshad Alam, New Age Islam

04 January 2018

The debate on the triple Talaq bill has divided the Muslim community right through the middle. There are vociferous opinions opposing the bill as being detrimental to Muslim women themselves and there are those who are hailing the bill as progressive as it will effectively curb the incidence of instant triple Talaq within the Muslim community. There is a sense in which it can be argued that the way in which the government proposed the bill leaves much to be desired. What was the seeming hurry in going through the bill without properly scrutinizing it as was demanded by the opposition parties and even some women groups themselves? What did the government want to prove by not admitting to a wider debate within the Lok Sabha? Is it that the government was sure that it will be welcomed by one and all and hence there was no need for a debate at all? Or is it that there were some deeper strategies at play?

It is a fact that Muslims in jails exceed their share in population. This has been historically true and no single party can be blamed for this sad state of affairs. It is also true that over the years, the condition of Muslims has deteriorated due to a number of factors and now their socio-economic indicators are very much similar or lower than the scheduled castes of the country. This gives an added sense of relative deprivation to the community which continues to battle religious stereotypes and now increasingly bears the brunt of being a permanent marker of anti-national identity. The targeted killing of Muslims over cow and love jihad has made the community jittery and therefore any move by the government would largely be seen with an element of suspicion within the community. It is not without reason therefore that Muslims have been arguing that the triple Talaq is nothing but a ploy to overpopulate the jails with Muslims.

These fears are not to be taken lightly. After all, the bill makes the act of triple Talaq non-cognizable offence which would give the police wide powers to arbitrarily arrest Muslim youth just on the basis of a complaint. Added to this level of harassment, is the very real possibility that women themselves would be prone to abusing the provisions of the law as it has happened with anti-dowry law, etc. For the Muslim man therefore there will be hardly be any recourse, neither at the state level nor at the family level and that does not portend well for our family structures. It was realisation such as these which made Muslim women’s groups demand that the offence be made into a non-cognizable one. But for a government in a hurry to promulgate this bill into a law, there was no need to pay heed to such reasoned arguments. It might sound ironical but it seems that the real targets of the bill were not Muslim women but some other group which wanted to punish Muslims as a whole.

In many ways, this was coming and Muslim religious figures are to blame for this. Firm in their view that Islam is the best religion and practising Islamic supremacy from the pulpit, they never realised that Muslims as community had become backward and their religion was now synonymous with all that was regressive within many religions. Through their practice of Islam, they had transformed it into a faith of social conservatism and orthodoxy. It is not that they did not get their chance at reforming this outmoded system. In recent memory, it was the Shah Bano moment when they should have given the call for reforming the personal law. Instead, they browbeat the Congress government into believing that the Supreme Court has committed a cardinal sin by venturing into the Muslim personal law and passing a judgment which ensured some minimum maintenance to Muslim divorcees.

 All hell broke loose when the judgment was passed and predictable slogans of Islam in danger were raised. Champions of minority rights, who had no understanding of the Muslim religion, threw their might with the regressive stand of the Muslims and colluded with the Mullahs to ensure that Muslim women remain in chains and at the beck and call of their husbands.

 The current debate on instant triple Talaq, initiated by Muslim women themselves, was another opportunity which the community missed. Instead of paying heed to the just demands of Muslim women, the clergy started calling them names and putting motives to their political action. Again, it was their firm belief that they follow the best religion on the planet that became their undoing.

Had the clergy paid some attention to the demands of Muslims and reformed the personal law in tune with the demands of modernity, things would not have come to such a pass. Instead, what we got from the clergy was the shaming of the entire Muslim community by levelling baseless and anti-women arguments in the Supreme Court. Despite the whole world now knowing what kind of a backward religion Islam is, the clergy remains steadfast in their belief in the superiority of Islam. Even after the Parliament is debating the bill to criminalize triple Talaq, the clergy still is more interested in pointing out the ‘nefarious’ designs of BJP led government and claiming that Muslim women, who spearheaded the movement for reform are nothing but agents of the ruling government. Absolute nonsense.

Yes, it is true that Ishrat Jahan has joined the ruling dispensation. So what? And how does this single act delegitimize the struggle of Muslim women for gender justice. Everyone is free to join any political party of his or her liking. In doing so Ishrat has exercised her fundamental right and the clergy has no business casting aspersions on her motive. After all, there are many Muslim men in BJP, but such vituperative statements are never made against them.

The problem is perhaps mush deeper. The more important question that needs to be asked is this: why is it that reformers like Ishrat Jahan and others find space only in BJP and not in Congress and other so called secular political parties? After all, why is it that a reformist like Arif Muhammad Khan did not find space in Congress or the Left parties who cry hoarse over their ‘progressive’ and ‘pro-minority’ politics?

The fact remains that these parties have no vision for the Muslim community. Also, they firmly believe that being pro-Muslim must translate into appeasing the Mullahs since it is the Mullahs which control the Muslim community. Whether it is the SP or BSP in Uttar Pradesh or it is the Trinamool in West Bengal, they all think alike when it comes to Muslims. And their thinking does not go beyond the Mullahs and their madrasas. They need to realise that the tide is turning within Muslim community. That now there are many within the community who are ready to challenge the monopoly of the Mullahs and there are many who now want to move in a different direction from the sectarian agendas which had hitherto defined Muslim politics. The sooner these so called progressive parties realise it, the better it will be for their own political fortunes.

Again, the clergy must realise that this is not the end of the struggle for women. This is just the beginning and in the coming years we will have similar legitimate voices raised on the evil practices of polygamy, Nikah Halala and even the unilateral right of divorce which Muslim men enjoy. It is time for a comprehensive reform of the Muslim personal law. The Mullahs would do good to at least start debating these issues within their circles if they want to remain relevant in the Muslim society.   

Related Articles:

1. Triple Talaq Controversy: Male Chauvinist Indian Ulema Are Subverting Islam to Mislead the Supreme Court


2.  Triple Talaq Row: Social Boycott as Punishment Is Juvenile; AIMPLB Scholars Must Follow Quran and Accept Inevitability of Change


3.  Triple Talaq Must Be Invalidated Constitutionally and Criminalized – Inclusion of Prohibitive Clause in Nikahnama Could Allow Its Perpetuation by Defaulters


4.  AIMPLB Advocates Of Instant Triple Talaq Are Gender Terrorists And Traitors Of Islam And May Be Sued For Human Rights Violation Under Cover Of Religion


5.  The Process for Divorce in the Quran


6Sultan Shahin Raises Triple Talaq Issue at UNHRC, Asks Muslims to Engage In Serious Rethinking Of Islamic Theology and Bring It In Line With the Needs of 21st Century


7.  The Triple Talaq Case: The Unjust Muslim Men and Their Unjust Leaders


8.  Instant Triple Talaq Judgment and After


Arshad Alam is a columnist with NewAgeIslam.com

URL: http://www.newageislam.com/islam,-women-and-feminism/arshad-alam,-new-age-islam/the-bill-on-triple-talaq-may-be-bad-in-law;-but-it-is-the-mullahs-who-should-be-blamed-for-this-mess/d/113812

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  • Muslim Women (Protection of Rights on Marriage) Bill, 2017

     I spoke to our MP on the subject and he asked me to tell him what our objections are. Here I have redrafted the Bill as I feel it should be: Please take up: 

    Govt. Draft above and my suggestions below each section/point. 

    A BILL to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.
    My Objections/suggestions (Manzurul Haque)
    A BILL to protect the rights of married Muslim women and to prohibit the misuse of Talaq by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.
    (Note: Sure enough, Govt of India, does not want to selectively close the option of divorce to a Muslim couple)

    Statement of Objects:
    Point 3. In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.
    (Note: Too much of  a substandard clerical language really)

    My Objections/suggestions (Manzurul Haque) 
    Statement of Objects:
    Point 3. Supreme Court has declared void and illegal, what is popularly known and pracised amongst Indian Muslims as talaq-e-biddat , which in other words means, pronouncing of the word talaq three times in one sitting, by husband, giving finality to the divorce. Since this practice is widely prevalent in India, it is imperative to attach penal provisions to punish the promoters of such practice, be that the husband or his accomplices, in the furtherance of this practice. 

    Point 4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them.”

    My Objections/suggestions (Manzurul Haque)
    Point 4. (Note: Not needed being  redundant)

    Section 2. In this Act, unless the context otherwise requires,— (a) "electronic form" shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000; (b) " talaq-e-biddat”  or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and (c) "Magistrate" means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides. 

    My Objections/suggestions (Manzurul Haque)
    Please add this after (a) to (c) of Section 2 (definitions): 
    (d) Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat perid.

    (e) Halala: Halala should be understood as that kind of farcical halala, reportedly practiced in India, in which, after the talaq, the wife in question, intentionally contracts a marriage with another person, to premeditatedly seek similar talaq, from that another person she so marries, so that she becomes eligible and available to marry her ex-husband. 

    (f) Iddat: The iddat is a time period intervening between pronouncement of   and legal effectiveness of talaq, with certain obligations, during which the divorced wife cannot re-marry with another person. The iddat of a woman, divorced by her husband is three monthly periods, unless she is pregnant in which case the iddat shall last until she gives birth. If the marriage was not consummated  or if she does not menstruate, then in such cases, there is no iddat, and therefore a constructive period of three lunar months shall be deemed as the iddat for effecting reconciliation and reconsideration.  
    For a woman whose husband has died, the `iddah is four lunar months and ten days after the death of the husband, whether or not the marriage was consummated.
    (i) Consent: In the case of a farcical halala taking place, the consent of a woman though given freely for the farcical halala,  under influence of religion, would be legally deemed as obtained under psychological duress and would therefore be treated as  ‘no consent'

    Section 3 of the draft legislation reads,
    Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

    My Objections/suggestions (Manzurul Haque)
    Section 3. Any pronouncement of talaq, intending to be talaq-e-biddat, by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat period. Before expiry of  iddat-period, the husband shall not disturb or would be compelled to disturb the status quo of residence of wife, custody and residence of children, expenses of household and family members etc, the essential concomitants of a married life;  and the husband shall have to undergo a formal counseling by a committee of two relatives, the proceedings of which shall be duly recorded as a legal document. During this period husband can re-establish relationship , called rujoo, with wife and has a right to do so. After Iddat period, man and woman by mutual consent alone, can perform fresh nikah and any interference in their performing fresh nikah would be deemed as perpetuating and promoting  talaq-e-biddat . This opportunity of nikah with ex-wife, will however seize after the third talaq in the life time of the couple. 

    Section 4 of the Bill states;
    "Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.

    My Objections/suggestions (Manzurul Haque)
    Section 4. The impact of this criminal Act is not aimed at the interpersonal conjugal relationship between husband and wife, but on the social space in which the couple is situated, which leads to serious injustices to Muslim women. Therefore, upon utterance of 'Talaq' three times or more, by husband to wife,  if any religious cleric or person, including a  local ‘maulvi’ or ‘maulana’,   is provenly found engaged in advising and or  abetting separation from the wife of the husband, whatever may be the theological position on the question, which has already been divested of any legal persuasion   by the Supreme Court judgment in Shayara Bano v. Union of India & Ors, 2017, then such advising person  shall be punished with three years of imprisonment. If the relatives of the husband have been noticed of talking of halala and been found involved in the disturbing the status quo of the residence of the family etc., then each one of such relatives  should be punished with   one  year of imprisonment . If a person  knowing the facts of the case, actually performed so-called  farcical halala with the ex-wife, irrespective of permission of wife or husband for doing the same,  then the person who did  halala and the maulvi who performed  nikah-e-halala,  shall be punished for ten and five years of imprisonment respectively.

    Notwithstanding clause: 
     Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.

    My Objections/suggestions (Manzurul Haque)
    Following observations of the Honorable Supreme Court in similar social criminal legislation could have been incorporated.
    [Supreme Court directed that the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code. Further, "The magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," ]

    Available  at manhaq@yahoo.com 

    By Manzurul Haque - 1/8/2018 7:00:41 AM

  • Mr Arshad..sad truth is muslim personal law cannot be reformed in India..Why doesnt the community itself draft a law which is better and more suitable ? instead of trying to blame and criticize the government...
    But problem is the clerics will shoot any law which reduces their POWER over women...so stalemate will continue...at least the BJP tried.

    By indiewater - 1/8/2018 3:14:37 AM

  • Much relevant discourse! 
    Arshad ji, it’s time Muslim community is allowed to become harbinger of change!!

    By Meera - 1/5/2018 8:46:17 AM

  • Will the mullahs learn their lesson and do the necessary reforms on  halala, polygamy, inheritance laws and minimum age for girls to marry before the government comes in and imposes its version of reforms?

    By Ghulam Mohiyuddin - 1/4/2018 1:29:49 PM

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