Tufail Ahmad, New Age Islam
27 May 2016
On May 18,
it emerged that a Muslim woman from Jaipur, Afreen Rehman, has moved the
Supreme Court of India after she was divorced via Speed Post. Afreen Rehman
also said that she was mentally harassed and beaten up by her husband's family
members who were allegedly demanding dowry. In another case, Shayara Bano from
Uttarakhand has petitioned the Supreme Court to ban Triple Talaq.
cases, two issues emerge. One, the affected women are not demanding reforms in
Islam. Instead, they are asking for the Shariah laws to be codified so that a
husband's arbitrary power to divorce is removed. Two, India is predominantly a
Hindu society in which people have traditionally looked down on divorced women.
So, the presumption behind the voices against Triple Talaq is that divorce is
bad. The fact is this: divorce is good and should be made easy for women and
men to exit a bad relationship.
women want an easy solution, there does exist a stress-free solution in the
Indian Constitution. For example, Muslim women and Muslim men can marry under
the Special Marriages Act under which marriage is a civil contract. Such a
course will eliminate all problems associated with Islamic marriage and
divorce. Islamic scholars agree that in Islam, marriage is a civil contract
between a man and a woman. So, marrying under the Special Marriages Act will be
valid as per Islam. But women's groups do not approve of the Special Marriages
Act as something good for Muslim women.
at these issues from a husband's perspective. There are three Shariah-compliant
laws that govern marriage, divorce and alimony among Muslims in India: one, the
Muslim Personal Law Act, 1937; two, the Dissolution of Muslim Marriages Act,
1939; three, the Muslim Women (Protection of Rights on Divorce) Act, 1986.
1937 law, Muslims can marry and divorce in informal ways deemed correct by
Islamic clerics. A Muslim husband must divorce under this law, which means he
cannot go to court for divorce. If he goes to court, his application for
divorce is dismissed. He is forced to effect his own divorce through a letter,
phone call, video or internet.
1937 law, there are two ways to divorce: first, utter triple Talaq
unilaterally, thereby ending the marriage instantly. It is dehumanising for a
Muslim husband to go through this process. A more self-respecting step for a
husband will be to go to court to obtain divorce. Second, deliver Talaq in
three monthly instalments – a three-month period during which reconciliation
can occur. But if a husband sends the first instalment of Talaq, the wife will
file a dowry harassment case. Due to fear of 498A dowry cases, Muslim husbands
are advised by lawyers to choose Triple Talaq.
the 1937 law, only the husband can divorce. As per Shariah, only the husband
can "give" divorce. So, a law was enacted in 1939 to empower Muslim
women. But even under the 1939 law, a Muslim woman cannot "give"
divorce; she can only "seek" divorce either through Islamic clerics
or through courts. Then there is a third law, known as Shahbano legislation,
enacted in 1986. It nullified a Supreme Court order to grant alimony to the
destitute divorced woman Shah Bano. This law upheld Shariah code that a
divorced woman can get alimony only for three months.
Muslim women's groups are debating these issues, ideas about women's rights
must not be dependent on religion. Let's consider the following points. One,
Nikah (marriage mediated through Islamic clerics) must be abolished because
Islam does not require the role of an Islamic cleric for marriage. In Islam,
marriage is a civil contract agreed in the presence of two male witnesses. Two,
the requirement that the witnesses be male must be also abolished because it is
against women's equality in today's democratic era.
Bharatiya Muslim Mahila Andolan advocates that the amount of Mehr (money paid
by the husband to wife in order to marry) be a year's salary of the husband.
This is an extortion, a regressive idea meant to uphold Shariah. Why Mehr
should be paid only by the man, not by the woman? Mehr is an instrument of
women's subjugation. The worry is that Muslim girls will start looking for a
rich man to buy their subjugation for a bigger amount of Mehr. Whether one
month's or one year's salary, Mehr cannot improve women's situation. Gender
equality means that husband and wife should work. Mehr must be abolished. It
serves Islamic Shariah, not women.
Four, it is
clear that many Muslim women are badly affected by Triple Talaq, an ambush form
of divorce. All forms of Talaq without the involvement of an Indian
government-run court must be declared illegal, whether or not Islam permits it.
Some Islamic groups are running parallel courts as per Shariah which is
illegal. Also, divorce must be made easy, especially to ensure that women do
not file dowry harassment cases after divorce is initiated. Under any new
legislation, both Muslim husband and wife should be forced to seek, not give,
divorce only through a court. The parallel Shariah courts operated by Islamic
organizations such as the Bharatiya Muslim Mahila Andolan are unconstitutional
and strike at the democratic ethos of the Indian republic.
case of children, husband and wife should share the cost of their upbringing
proportionate to their incomes. Under Shariah laws, upheld by the Shah Bano
legislation, a Muslim husband has to pay alimony to wife for three months.
Also, in modern times it is against gender justice that former husbands should
pay for their past wives. A more secular and gender-neutral approach must be
this: no husband and wife, whether Muslim or not, should have any links after
destitute women will need support. One idea could be this: insurance companies
should offer government-mandated maintenance payments after divorce – similar
to the accidental death insurance paid by banks. Couples must pay the insurance
premium during the course of marriage, possibly as part of a bank account
maintenance fee. A similar innovative idea of an insurance pool was mooted
within the context of the Civil Liability for Nuclear Damages Act, 2010. India
has already launched a Rs. 1,500-crore national insurance pool for nuclear
reforms happen in Islam, Muslim women and Muslim men must marry under the
Special Marriages Act to avoid problems because, as per Islam, marriage is
civil contract. Seven, in cases of disputes between a wife and a husband, the
Special Marriages Act must be applied, irrespective of under whichever personal
law a marriage was solemnised initially. The Supreme Court should pass an order
to this effect. Eight, India needs to bring in a Universal Bill of Rights for
Indian Citizens (Ubric) that will protect human rights of all citizens, of all
conclude, problems associated with Muslim societies regarding marriage, divorce
and other issues need surgery, not tablets. In India, Muslim women fighting for
justice must know that they can be meaningfully empowered only if they are into
income-generating employment and if their daughters go to schools – not
madrasas – to study mathematics, economics and physics from grade 1 through 12.
of this article was published by Dainik Jagran, the largest Hindi-language
daily, on May 27, 2016)
Tufail Ahmad is Director of South Asia Studies
Project at the Middle East Media Research Institute, Washington DC. He is the
author of "Jihadist Threat to India – The Case for Islamic Reformation by
an Indian Muslim."
Age Islam, Islam Online, Islamic
Muslim News, Arab
World News, South
Asia News, Indian
Muslim News, World
Muslim News, Women in Islam, Islamic
In Arab, Islamophobia
in America, Muslim
Women in West, Islam
Women and Feminism