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India: Separate ’religious’ family laws for ’communities’ or uniform civil code for citizens?

Friday 3 June 2016, by siawi3

Source: http://scroll.in/article/809193/the-daily-fix-the-petition-to-end-triple-talaq-is-by-muslim-women-for-muslim-women-hear-it-out

The petition to end triple talaq is by Muslim women, for Muslim women. Hear it out

In her own voice

The Bharatiya Muslim Mahila Andolan has gathered 50,000 signatures in a petition to abolish the triple talaq system of divorce. The group, which says its surveys shows that 92% of Muslim women want the practice banned, now seeks the support of the National Commission for Women. Triple talaq is an "un-Quranic" practice, says the letter composed by the BMMA, and several informed commentators would agree.

Whatever its place in the scriptures, the practice has grossly undermined the civil rights of Muslim women. The original ritual provided for three months of dialogue but, in practice, it is considerably shorter – a man may utter "talaq" three times and divorce his wife in an instant. Indian courts have patrolled the boundaries of the religious ritual, pronouncing that the man would have to prove that he went through the proper paces – providing a valid reason for divorce, waiting for three months and appointing arbitrators – if the talaq was legally challenged by the woman. Other rulings have tried to safeguard the woman’s right to maintenance. But, in most cases, the courts can only guarantee protections after the woman has approached them. Very often, that does not happen, and triple talaq remains an arbitrary and exploitative practice.

The push to end triple talaq has raised speculation that India is inching towards a uniform civil code. The merits of homogenised civil laws are a separate debate and, for the moment, the code remains a distant prospect. Specific reforms to dated personal laws, driven by the respective communities, is an appealing alternative. The BMMA’s petition could be a rare and important moment: a suppressed voice from within the community is asking for change. It must be heard.

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Flavia Agnes writes that the debate on triple talaq is missing a few facts.
Tahir Mahmood argues that it’s no conspiracy if courts intervene in personal laws.
Ajaz Ashraf points out that Pakistan and 21 other Muslim countries have abolished triple talaq.

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Source: http://scroll.in/article/808588/the-debate-on-triple-talaq-and-muslim-womens-rights-is-missing-out-on-some-crucial-facts

The debate on triple talaq and Muslim women’s rights is missing out on some crucial facts
Reports about the Shayara Banu and similar cases make no mention of the legal recourse available to Muslim women within the existing framework.

May 25, 2016 · 10:30 am
Updated May 25, 2016 · 11:34 am

Flavia Agnes

In the last month or so, ever since news of a Public Interest Litigation against instantaneous triple talaq filed by 35-year-old Shayara Banu from Uttarakhand’s Kashipur district made headlines, there have been a slew of news reports about the validity of the triple talaq and the harm caused by it to women and articles by Islamic scholars calling for a ban on this practice and terming it un-Islamic.

Many reports have also provided us with graphic details about the violence Banu was subjected to since her marriage and on the plight of Muslim women who are routinely served a talaqnama by post that ostensibly leave them high and dry, with no recourse whatsoever under prevailing statutes.

An inaccurate representation

The picture being painted, however, isn’t quite accurate.

Though the violence suffered by most women – physical, mental (in the form of the constant threat of triple talaq, denial of permission to meet relatives or access to children), sexual (forced repeated abortions, as in Banu’s case), and economic (desertion, non-payment of maintenance) would fall under the purview of the Protection of Women from Domestic Violence Act, 2005, no mention of this statute is made in the numerous scholarly articles or news reports about the violence that Muslim women are subjected to.

The statute secures the rights of women, Muslim women included, to maintenance, child custody/access, residence in the matrimonial home or alternate shelter and compensation for violence inflicted upon them. The procedure for accessing these rights is simple – it requires the filing of an application in a local magistrate’s court, without necessarily engaging a lawyer. The state is mandated to provide women legal aid under this Act.

For years, women of all communities have been approaching these courts, which have routinely passed orders to secure the rights of women of all religions and marital statuses – single, married or divorced.

This statute can be regarded as a step towards a uniform civil code and had been enacted without any objection from the All India Muslim Personal Law Board (AIMPLB) or any other Islamic sect. If domestic violence is a problem faced by many women in India, across the religious divide, then it is logical to assume that this would be the primary legal recourse they would seek to secure their rights. Hence, the failure to link this provision to the current debate on triple talaq, by Islamic scholars, journalists and experts advocating enactment of a uniform civil code, appears to me a glaring lacuna.

The rights that no one talks about

I am baffled that a woman who has been subjected to violence and then deserted has been advised to challenge the triple talaq sent to her by post, but was not informed about the simple recourses available to her to secure her rights. Is Banu not a victim of domestic violence? Does her Muslim identity negate the routine violence she has endured? What would the response be had a Hindu woman been similarly violated?

By petitioning the Supreme Court, the recourse advised to Banu is a lengthier one. Further, if SC does ban the triple talaq, would Banu and thousands of other Muslim women like her not have to avail themselves of their rights in a local court?

What also surprises me is the complete silence in these articles and reports about the legal avenues Muslim women routinely take to uphold their rights. While most articles about Banu’s case make a reference to the (in)famous Shahbano ruling of 1985, the impression one may get is that in the 30 years since then, Muslim law has been static, and the only avenues for women are Darul Qaza (Sharia courts) which are seen as patriarchal, parochial, archaic and anti-women. The entire argument for enforcement of the uniform civil code or the codification of Muslim law rests on this premise.

It is almost as though the PIL pending before the Apex Court is the only recourse available to deliver women from oppressive personal laws. Though several articles stress on the need for non-religious (civil) judicial avenues to govern the rights of Muslim women, they overlook the fact that Muslim women approach such courts routinely to secure their rights either under a secular statute, The Domestic Violence Act, or the codified portion of the Islamic law – the Muslim Women (Protection of Rights on Divorce) Act, 1986.

In cases of domestic abuse or oppression, what women need is a competent and conscientious lawyer who is well-versed with existing legal measures and can help them claim their rights, without charging an exorbitant fee – something that is sadly lacking in our country.

Rulings that have paved the way

A brief summary of three landmark rulings that invalidated triple talaq, upheld the rights of Muslim women to post-divorce economic support and brought far-reaching changes to the Muslim family law in India stresses my point.

In a landmark ruling in 2002 – in the Shamim Ara vs State of UP case– Justice RC Lahoti (who later served as the Chief Justice of India) said that a mere plea of talaq in response to the proceedings filed by the woman for maintenance cannot be treated as a pronouncement of talaq. In order to be valid, talaq has to be pronounced as per the Quaranic injunction. The judge described “pronounce” as “to proclaim, to utter formally, to declare… to articulate”.

Around the same time that year, in the Dagdu Pathan vs Rahimbi case, Justice B Marlapalle, presiding over the Aurangabad Bench of the Bombay high court, invalidated triple talaq by citing the following words from the Quran: “To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is haram (forbidden).” The court declared that a Muslim husband cannot repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties – were followed when the wife disputes the talaq before a competent court.

Then, in the Daniel Latifi case, the Supreme Court, while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, affirmed that a Muslim woman’s right to recurrent maintenance under Section 125 of the Code of Criminal Procedure had been substituted in the Act by the right to a lump sum provision to be paid to her soon after the divorce, within the iddat period (a waiting period during which a widowed or divorced woman is not allowed to remarry). If the husband fails to make this provision, the woman has the right to approach the magistrate’s court.

These judgements (pronounced by non-Muslim judges) served as the basis for several later rulings that invalidated instantaneous and arbitrary triple talaq. However, since these and similar cases did not receive media attention akin to Banu’s case, misconceptions about the rights of Muslim women continue to exist.

If only due media attention was paid to the silent reform taking place every day in our courts, and if only those who provide advocacy and support to violated women had invoked them to secure the rights of Muslim women, the erroneous notion that Muslim women have no rights unless the Muslim law is codified or until a uniform civil code is enacted, would not prevail.

The writer is a women’s rights lawyer and director of Majlis, a forum for discussions and legal initiatives for women rights.

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Source: http://scroll.in/article/807891/why-its-no-conspiracy-if-courts-intervene-in-muslim-personal-law

Why it’s no conspiracy if courts intervene in Muslim personal law
The Constitution protects citizens’ rights to religion, but also empowers courts to ascertain if any religious practice is repugnant to constitutional ideals.

May 15, 2016 · 08:00 am

Tahir Mahmood

“Look! What he is saying – triple talaq will effect only a single revocable divorce – he is guilty of insulting the sacrosanct law of Islam.”

This is how a religious scholar of the Darul Uloom of Deoband reacted to my statement carried by the Urdu media on April 28 that the abominable practice of triple talaq is un-Islamic. Another Deoband scholar called my statement “an attempt to inflame sectarian differences” among Muslims and a “conspiracy to encourage judicial tampering with the sacred Shariat law.”

Two days later noted academic Badar Kazmi, also of Deoband, deprecated the response of both the critics saying that there is no “rahbaniat”, or monasticism, in Islam so as to clothe the clergy with a monopolistic role as exponents of the Quran.

Who has the cheek to say that Badar Kazmi is wrong?

No interpretation required

“We have certainly made the Quran quite easy for anyone to understand” ordains God in the Quran [LVIV: 17]. Defying him, the Muslim theologians claim: “No! Only we can understand the Quran and everyone else must blindly follow our interpretation.” Faithfully accepting the claim of these self-proclaimed exclusive interpreters of God’s words, the community calls them maulanas, or our lords, rejecting God’s assertion in the Quran that only He is the Lord of all human beings.

The language of the Quran is indeed so clear and lucid that for anyone who knows Arabic, it does not even need interpretation. But since the Holy Book was not revealed for the Arabs only, others have to read it in their own languages. In the Quran itself, God describes a multiplicity of human languages as one of “His signs”. How could he have used words that are difficult to be translated? So, read in Arabic or in any other language, the Quran is easily comprehensible. Thank God I know Arabic, and can check for myself whether the translation of any Quranic word is inaccurate, as the maulanas often claim.

This is what the Quran says about divorce: “al-talaqu marratan” (divorce twice) – and after that “either cohabitation as per the law or parting of ways in kindness.” In pre-Islamic society, men used to torment their wives by pronouncing and revoking talaq again and again. The Quran abolished the mean practice by proclaiming that a talaq can be revoked only twice, and that it should be pronounced the third time only if the marriage has irretrievably broken down and must be dissolved in the interest of both parties.

God alone knows how this humane Quranic law could be interpreted to mean that the word talaq uttered by a man thrice, even though unintentionally, will effect an instant dissolution of the marriage. And that the triple talaq will have such an effect that even if the man repents or pleads ignorance of law – and if the husband and wife want their relationship to continue – the woman must first face the indignity of a false marriage to another man followed by its pre-planned termination.

Courts and the Constitution

It was my exposition of this misinterpretation of the noble Quranic law that one Deoband maulana dubbed as “insult to the sacred law of Islam” and another saw as a conspiracy on my part to encourage the courts to interfere in sacred Islamic law. One of them also asserted that my statement about the abolition of triple talaq in Muslim countries is “haqiqat ke baraks”, or contrary to reality, since Saudi Arabia has not done that. It seems the rest of the countries which have abolished triple talaq – Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Libya, Oman, Qatar, Morocco, Sudan, Syria, Turkey, Tunisia, UAE and Yemen – are not Muslim enough for this purpose. I have in my possession the texts of all these laws and will be happy to supply them to my learned Deoband friends.

The problem for the maulanas is that I do not need to encourage the courts to “interfere in the sacred Islamic law” – if that law is a part of the Indian legal system the courts have to do that in any case. The Constitution of India protects each citizen’s right to follow religious practices but also empowers the courts to ascertain if any such practice is actually an essential part of the concerned religion – especially if it is clearly repugnant to constitutional ideals of equal protection of laws and gender justice. And the Constitution most certainly does not exclude Muslims from the scope of this judicial obligation.

Tahir Mahmood is a professor of law and former chair, National Minorities Commission.

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Source: http://scroll.in/article/806299/if-pakistan-and-21-other-counties-have-abolished-triple-talaq-why-shouldnt-india

If Pakistan and 21 other countries have abolished triple talaq, why can’t India?
A large section of Muslim women has been demanding an end to triple talaq. It is time the AIMPLB gave up its opposition to this.

Apr 18, 2016 · 08:00 am
Updated Apr 18, 2016 · 06:29 pm

Ajaz Ashraf

The All-India Muslim Personal Law Board has been mulishly opposed to abolishing triple talaq, which is a procedure a Muslim adopts to divorce his wife by pronouncing talaq three times in one sitting. Most recently, the AIMPLB has expressed disquiet over a petition requesting the Supreme Court to determine the constitutional validity of triple talaq.

The AIMPLB’s position is in sharp contrast to the dominant trend worldwide. As many as 22 Muslim countries – including Pakistan and Bangladesh – or their provinces have abolished triple talaq either explicitly or implicitly.

The list includes Turkey and Cyprus, which have adopted secular family laws; Tunisia and Algeria and the Malaysian state of Sarawak, which do not recognise a divorce pronounced outside a court of law; and Iran, where triple talaq doesn’t have validity under its Shia law.

The invidious procedure of triple talaq is confined to the Sunnis alone, not only in India, but around the world.

It has often been argued in India that religious minorities of any country are relatively impervious to change. They fear any alteration in their practices could lead to them losing their religious identity. But this apprehension doesn’t afflict the Muslims of Sri Lanka, where they constitute a little less than 10% of the population.

Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951, as amended up to 2006, doesn’t recognise instant divorce. This is because the law requires a husband wishing to divorce his wife to give notice of his intention to a qazi (Islamic judge), who should attempt reconciliation between the couples over the next 30 days. It is only then the husband can give talaq to his wife – that too, in the presence of the qazi and two witnesses.

In his paper, Reforms in triple talaq in the personal laws of Muslim states and the Pakistani legal system: Continuity versus change, Dr Muhammad Munir, Professor of law and Director of the Shariah Academy, International Islamic University, Islamabad, rates the Lankan law as the “most ideal legislation on triple talaq.”

Intense debate

Whether or not Sunni Muslims in India can or should reform triple talaq has been a matter of intense debate in the community for nearly a century. Even their jurists believe that the Ahsan (best) method of divorce requires the husband to give a talaq to his wife in her tuhr, or menses-free time. He can withdraw the talaq during the iddat, or waiting period, which is of approximately three months. Should he not do so, divorce kicks in after the expiry of the iddat. However, the divorced couple can remarry at a future date, precisely why this talaq is called Ahsan.

A talaq is called Hasan (good) when the husband divorces his wife a second time, following the same procedure adopted in the first instance. Once again, the husband is permitted to withdraw the talaq before the period of iddat expires. Once again, the divorced couple can remarry in the future should they so wish.

However, a talaq given the third time dissolves the marriage forthwith. There is no waiting period, no room for reconciliation, and the divorce is irrevocable. The divorced couple can remarry only if the woman marries another man and who subsequently divorces her. This system of an intervening marriage before the triply divorced couple can remarry each other is called Halala.

The Halala system is often exploited to overcome the Islamic prescription prohibiting couples from remarrying after they have been divorced thrice. Typically, the ruse involves the triply divorced couple entering into an underhand agreement with another man who marries the woman and divorces her thereafter. She is then legally free to marry the man who had divorced her thrice previously.

It might seem amusing that a woman would wish to marry the husband who has divorced her thrice, but this is precisely where the harshness of the procedure which has the husband pronounce talaq thrice in one sitting is brought out vividly. Called Talaq-ul-Bidat, it is perhaps as old as Islam itself.

Under Talaq-ul-Bidat, the husband adds “triple” to the word talaq, or simple repeats three times thus, “I am giving you talaq, I am giving you talaq, I am giving you talaq.” This has the same consequences as an irrevocable divorce and the marriage is dissolved immediately. The couple can re-marry only through the system of halala. Paradoxically, Talaq-ul-Bidat is deemed “sinful but effective.”

Usually, the quickest way a husband can irrevocably divorce his wife is to pronounce talaq in three successive tuhrs, or menses-free time. In their book, Introduction to Islamic Law, Dr Tahir Mahmood and Dr Saif Mahmood, note, “Three consecutive tuhrs (menses-fee time) are the minimum period allowed for this period – certainly not a fixed period for it to be followed in every case.”

The authors quote the famous Deobandi theologian Ashraf Ali Thanvi (1863-1943) on this count: “A man pronounces a revocable talaq. He reconciles and resumes cohabitation. A few years later under some provocation he pronounces a revocable talaq once again. On recovering from provocation he again resumes cohabitation. Now two talaqs are over. Thereafter whenever he pronounces a talaq it will be counted as the third talaq which will dissolve the marriage forthwith.”

It is said that Talaq-ul-Bidat, or the procedure of giving three talaq in one sitting, was an innovation undertaken to ensure an incorrigibly acrimonious couple could part ways as quickly as possible. It is also claimed that this innovation was resorted to provide relief to women wishing to escape from their exploitative husbands inclined to pronouncing talaq to threaten their partners and then withdrawing it.

Nevertheless, it did become an acceptable procedure of divorce in the Muslim world. There are traditions dating back to the times of Prophet Muhammad and immediately thereafter. There was indeed consensus among the scholars of the four Sunni schools of jurisprudence – Hanafi, Maliki, Hanbali and Shafii – over the legal validity of pronouncing talaq thrice in one sitting.

Three equals one

This consensus was broken by the Hanbali scholar, Ibn Taimiyah (1268-1328), who argued that three talaqs in one sitting counts as one. The three-in-one position was considered a minority view, but over the last century more than 20 countries have adopted it.

The first country to deviate from the majority opinion of Muslim jurists was Egypt, which through Law No 25 of 1929 declared that a talaq, regardless of whether accompanied by a number, will be counted as one and will be considered as a revocable divorce. The only exception to this law is when three talaqs are given in three successive tuhrs. Sudan followed suit in 1935 with some additional provisions.

Dr Munir writes, “The Syrian law of 1953 combined the provisions of the Egyptian and the Sudanese laws by providing that if a divorce is coupled with a number, expressly or impliedly, not more than one divorce shall take place and every divorce shall be revocable except a third divorce, a divorce before consummation, and a divorce with consideration, and in this law such a divorce would be considered irrevocable.”

Most of the Muslim countries – from Iraq to Jordan to Indonesia to the United Arab Emirates and Qatar – have accepted Taimiyah’s position on triple talaq.

In fact, Tunisia has gone beyond even Taimiyah. Its Code of Personal Status, adopted in 1956, does not recognise a divorce given outside a court of law, which is required to investigate the reasons for a couple parting ways and seek to reconcile them. Only at its failure to bring about reconciliation is the divorce decree given. Algeria, too, adopted this code, besides earmarking 90 days for completing the reconciliation process.

On quite another track went Turkey, which under Mustafa Kemal Ataturk adopted the Swiss Civil Code in 1926. The Swiss Code was considered Europe’s most progressive law – obviously, Islamic laws governing divorce and marriage were cast aside. The Turkish Civil Code was revised in 1980s, but it remained insulated from undue religious imprint. Subsequently, Cyprus adopted the Turkish Civil Code.

In undivided India, however, triple talaq grew deep roots in the popular consciousness. Whether out of ignorance or notions of patriarchy, the procedure of pronouncing talaq three times in one sitting became the dominant norm. In fact, many Muslims still erroneously believe that Talaq-ul-Bidat is the only procedure of divorce available to them.

Thus, in moments of extreme anger, husbands have known to pronounce triple talaq in one sitting – and then live to rue their act. Clerics tell them that there is no possibility of withdrawing talaq and that they can cohabit with their wives only after they have been through an intervening marriage and a divorce, in accordance with the rules of halala.

Change in Pakistan

In Pakistan, however, a relook at triple talaq was initiated because of a controversy. In 1955, then Prime Minister Muhammad Ali Bogra married his secretary even though he hadn’t divorced his first wife. It triggered protests by the All Pakistan Women’s Association, prompting the government to establish a seven-member Commission on Marriage and Family Laws.

The Commission recommended in 1956 that pronouncement of three talaqs in one session should be counted as one. That a divorce to be effective must have the husband pronounce talaq in three successive tuhrs, and that he could not divorce his wife till the time he secures an order to this effect from a matrimonial and family court.

The last recommendation came under stringent criticism by a Commission member, Maulana Ehtesham-ul-Haq Thanavi. In his dissent note, the Maulana said the recommendation requiring the husband to seek an order from a court before giving talaq amounted not only to “tampering with the injunctions of the faith but also putting obstacles in the way of dissolution even when it becomes necessary and desirable.”

It was primarily because of his objection that the Pakistani government did not provide for court intervention in divorce when it issued the Muslim Family Law Ordinance in 1961. Section 7 of this Ordinance relates to talaq and has six subsections:

Any man after pronouncing “talaq in any form” has to give notice to the Chairman of the Union Council (an elected local government body) informing him about it and also supply a copy to his wife.
Failure to do so could invite punishment up to one year or a fine of Rs 5,000.
A talaq will not be effective until the expiry of 90 days after the man had served notice to the chairman.
Within 30 days of receiving the notice, the chairman is required to constitute an arbitration council for reconciling the couples.
If the wife is pregnant, the talaq shall not be effective until the expiry of 90 days or the pregnancy, whichever is later;
“Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time, so effective.”

Jurists were of the view that Section 7 (6) of the ordinance had implicitly abolished the system of triple talaq or Talaq-ul-Bidat. This is because even though subsection (1) speaks of “talaq in any form” – thereby including Ahsan, Hasan and Talaq-ul-Bidat – the other provisions of the ordinance makes the procedure of reconciliation mandatory. However, since no reconciliation is possible when triple talaq is given in one session and the marriage stands dissolved forthwith, the ordinance is said to have impliedly abolished Talaq-ul-Bidat.

Second, it is deemed to have been also abolished because subsection (6) allows, as Dr Munir notes, “remarriage between the two parties after the divorce without an intervening marriage or halala, which, under section 7, becomes imperative following the third such pronouncement (of talaq).” In other words, the MFLO doesn’t envisage a person giving talaq thrice in one sitting. Each has to be separated in time to allow the process of reconciliation.

The view that the MFLO had impliedly abolished triple talaq in one session was upheld by the Supreme Court in Syed Ali Nawaz Gardezi v Lt. Col Muhammad Yusuf. It remains abolished till date.

When Bangladesh was born in 1971, the new country inherited the MFLO regulating marriage and divorce laws. Consequently, triple talaq remains abolished in Bangladesh as well. Judicial verdicts on cases involving the MFLO pertains to – as it does in Pakistan too – whether or not the failure to give notice to the chairman of Union Council leads to automatic revocation of divorce.

Verdicts in India

It is not that judicial verdicts in India haven’t led to the annulment of triple talaq. For instance, in a 2008 case titled Masroor Ahmad v state, a Muslim judge of the Delhi High Court, Badar Durrez Ahmad ruled that triple talaq in India should be deemed as a single revocable talaq. Again, in Jiauddin Ahmed v Anwara Begum, the Gauhati High Court said that a talaq must be “for a reasonable cause” and must be preceded by attempts at reconciliation.

Given that a large section of Muslim women has been demanding an end to triple talaq, brought out through several opinion polls, the AIMPLB’s refusal to reform the Muslim Personal Law on this aspect is ostrich-like. It should study the reforms several Muslim countries have adopted in order to abolish triple talaq.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid. It is available in bookstores.