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India: Hindu-Right government, Communalism and the Reform of Muslim Personal Law

Wednesday 10 May 2017, by siawi3

Part 1.

Source: https://scroll.in/article/836745/faizan-mustafa-supreme-court-has-already-declared-triple-talaq-invalid-it-may-just-reiterate-that

‘Supreme Court has already declared triple talaq invalid’: Legal expert Faizan Mustafa

Now it should mandate that the nikahnama reject outright triple divorce and polygamy.

May 9 2017· 08:00 am.

Ajaz Ashraf

On May 11, the Supreme Court is set to decide whether triple talaq is unconstitutional. Should it indeed declare the practice unconstitutional, as is widely expected, what would be the implications? What does unconstitutional mean? Will the system of halala, or intervening marriage, stand annulled? And, above all, will it uplift Muslim women economically and socially?

Scroll.in put these questions to Dr Faizan Mustafa, vice chancellor of Nalsar University of Law, Hyderabad. He explains all you would want to know about Muslim Personal Law, the forms of divorce in Islamic law, and the implications of the Supreme Court declaring triple talaq unconstitutional. Excerpts from the interview:

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The Supreme Court has been petitioned to declare triple talaq unconstitutional. What does the word “unconstitutional” mean?

The Indian Constitution has not explicitly conferred the power of judicial review, which also includes the power to declare any law unconstitutional, on the higher judiciary. This power is, basically, implied in Article 13(1) of the Constitution, which says that any law inconsistent or in contravention of the fundamental rights shall be void to the extent of inconsistency or contravention.

The Indian judiciary, as custodian of the Constitution and guarantor of the fundamental rights, has not only assumed this power under Article 13(1) but held it to be the basic structure of the Constitution. Moreover, Article 13(3), in its definition of “law”, neither mentions enacted law, that is, Act of Parliament or state legislature, nor talks of “personal laws”. Nevertheless, in several cases courts did strike down laws passed by competent legislatures. It is unfortunate that Indian courts have been indulging in the strict scrutiny of laws passed by competent legislatures and, at times, sitting on judgements even on policy matters best left to the wisdom of government.

Article 13(3) basically talks of “laws” made by the executive such as ordinances, bye-laws, orders, rules, notifications, and also refers to customs and usages. Technically speaking, personal laws and customs are different, though the Narendra Modi government has taken the stand that customs also include Muslim Personal Law.

But the Shariat Act was passed in 1937 so that Muslims are not governed by un-Islamic customs. Thus, the 1937 Act was passed to undo customary laws.

In that case, the question arises as to what constitutes Muslim Personal Law?

Muslim Personal Law in India is not entirely Islamic law. It consists of three parts – opinions of Muslim jurists (which are not codified), decisions given by British and Indian judges, most of whom were non-Muslim. Most decisions have held triple divorce as valid. Third, it includes laws that have been enacted by Parliament such as the Shariat Act, 1937; Dissolution of Muslim Marriage Act, 1939; Muslim Women (Protection of Rights on Divorce) Act, 1986; Waqf Acts, etc. Only the enacted part –Acts – contains “laws” within the meaning of Article 13.

Opinions of Abu Hanifa (who established one of the five schools of Islamic jurisprudence, Hanafi) and other jurists given over 1,000 years ago cannot be struck down as unconstitutional. Can we, for instance, ask the Supreme Court to declare (19th century legal philosopher) John Austin’s opinion on sovereignty or, for that matter, the Hindu law-giver Manu’s view as unconstitutional? This cannot and should not be done.

In the Shamim Ara case in 2002, the Supreme Court laid out the procedure for divorce under Muslim Personal Law. Again, the Delhi and Guwahati High Courts had earlier ruled that a talaq pronounced thrice in one sitting should be counted as one. Given this past, in what ways would it be a departure if the Supreme Court were to declare triple talaq unconstitutional?

The Shamim Ara judgement did not specifically say three divorces pronounced in one sitting will be counted as one. But it did quote with approval several High Court decisions which counted three divorces as one, and ruled that divorce had to be for a reasonable cause and preceded by efforts at reconciliation between the divorcing couple.

Thus, in effect, as far as the law laid down by the Supreme Court is concerned, the option of triple divorce is no more available. This is why I consider the current legal challenge to triple divorce unnecessary. At best, the Supreme Court may reiterate its decision in Shamim Ara case and explicitly declare that three pronouncements in one sitting will now be treated as just one revocable divorce.

In my opinion, the court should make the nikahnama (a contract that is drawn to spell out the rights of the marrying couple) mandatory. The nikahnama should include conditions like no triple divorce would be given or no second wife will be taken, etc.

“Juristic opinions given over 1,000 years ago cannot be struck down as unconstitutional. Can we ask the Supreme Court to declare John Austin’s opinion on sovereignty or, for that matter, the Hindu law-giver Manu’s view as unconstitutional? This cannot and should not be done.”

A term like “one revocable divorce” would be all Greek to most people. I guess the import of triple talaq cannot be understood unless people know how the three forms of talaq – Ahsan, Hasan, Talaq-ul-Biddat – differ from each other. Could you explain the differences?

The Quran lays down an elaborate procedure for divorce, which the All India Muslim Personal Law Board has now accepted. Muslim women who went to the court were demanding nothing more than reverting to the Quranic procedure of divorce, which, in their opinion, was the right way to dissolve a bad marriage.

Under the Quranic scheme now adopted by the board, divorce involves seven steps.

First, if there are differences between spouses, they will try to amicably resolve them by talking to each other in the spirit of forgiveness. Two, if they fail to resolve their differences, they may temporarily withdraw from each other’s company even though they continue to live in the same house.

Should these two measures fail, there is the third stage: the couple should try sincere reconciliation within their families or appoint an arbitrator from each side who would leave no stone unturned to bring about reconciliation between them.

However, if arbitration does not yield positive results and there are visible signs of marriage having broken down irretrievably, only one divorce (or talaq) is to be pronounced by the husband. This single pronouncement is to be compulsorily followed by the waiting period of three months (called iddat) or until the delivery of the child if the wife is pregnant.

In case the husband and wife change their mind during the waiting period and want to stay married, the divorce would stand revoked. If talaq isn’t revoked within the waiting period, divorce would become complete at the end of three months or until the end of pregnancy. This system is known as Talaq-e-Ahsan, where only one divorce is enough to dissolve marriage. Jurists have termed it as the “most approved” form of divorce.

What about Talaq-e-Hasan?

If one divorce is pronounced each month for three months – of course, preceded by above steps – it is called Talaq-e-Hasan or the “approved” form of divorce.

Finally, if three divorces are given instantly without the above mentioned seven steps, as also without any effort of reconciliation through arbitration, it is called Talaq-e-Biddat or the “most disapproved” form of divorce.

But isn’t the system of pronouncing talaq three times in one sitting an innovation? After all, it is not mentioned in the Quran. How did this innovation come about? Why do ulema and clerics insist on persisting with it?

There is no unanimity on this issue. Juristic opinion is divided. The Quran itself declares: “Divorce can be pronounced twice: then, either honourable retention or kind release should follow…Then, if he divorces her, she shall not be lawful to him unless she first takes another for a husband.”

This verse, in Arabic, uses the expression “Al-talaqu marratan”, which means that divorce may be pronounced twice. The term “marratan” implies that there should be a sufficient interval between the two pronouncements of divorce.

For instance, if I were to say “I went to your office twice but you were not there”, it cannot mean that I went to your office twice at one go. There has to be a reasonable interval between my two visits. Likewise, there has to be a gap between two divorces. Therefore, pronouncing triple divorce in one sentence – I give you talaq, talaq, talaq – or three sentences at one go – I give you talaq, I give you talaq, I give you talaq – is against the Quran.

But Imam Bukhari (a 9th century Islamic scholar) considered triple divorce as valid from the above verse. He lay emphasis on the words “if he divorces her”, which means the third time.

In fact, except for Ahl-e-Hadees, most Sunni schools consider triple divorce (in one sitting) valid. Even Hasan, son of Ali and grandson of Prophet, whom Shias follow, probably gave triple divorce to Aishah Khathmiya. After her waiting period, when Hasan sent her a gift, she said, “This is a very small gift from the beloved from whom I have been separated.” On learning this, Hasan broke into tears and said: “Had I not heard from my grandfather the prohibition about such a woman, I would have taken her back in marriage.”

But there are opinions to the contrary as well.

Some jurists are of the view that once on hearing that someone had pronounced triple talaq, the Prophet turned red. He stood up and reportedly said, “You have made mockery of the Quran in my lifetime.” This has been interpreted to mean that triple talaq is not valid.

Others argue that had divorce not become effective, the Prophet would not have become so angry. There are other instances, too, where triple divorce was enforced by the Prophet if the intention was to give three divorces. On the other hand, if talaq was pronounced thrice with the intention of just emphasising it, it was taken to mean merely one revocable divorce.

Sahih Muslim and Abu Da’ud (two of the most authentic collections of Hadith, or the traditions of the Prophet) tell us that during the Prophet’s life as well as in the reign of the first Caliph Abu Bakr and the first two years of Umar’s rule, three divorces given at a time were taken as one divorce only. But after complaints that people were misusing this practice, Umar enforced triple divorce.

So, despite the Quranic injunction, Umar was compelled to enforce triple divorce because a strange new situation had arisen. When the Arabs conquered Iraq, Syria, Egypt and other nations, they wanted to marry the women prisoners whose beauty captivated them. But the women insisted that their suitors give irreconcilable and irrevocable divorce to their wives. This was because they feared that the Arabs may revoke the divorce later and resume marital relationships with their wives. To satisfy them, the men would pronounce triple divorce and pretend they had divorced their wives irrevocably.

Umar, a tough administrator, understood the devious designs of his men and started to not only enforce triple divorce but also punish the offenders by flogging.

Although the dominant juristic view holds triple talaq in one sitting to be valid, there are powerful dissenting voices in each school of jurisprudence as well. Thus, there is room to treat three divorces as one revocable divorce. Indian ulema should consider adopting this alternative view.

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Part 2:

Source: https://scroll.in/article/836751/people-will-accept-triple-talaq-out-of-fear-of-god-legal-expert-faizan-mustafa

‘People will accept triple talaq out of fear of God’: Legal expert Faizan Mustafa

‘People will accept triple talaq out of fear of God’: Legal expert Faizan Mustafa
AFP

10.05.2017 4 hours ago

Ajaz Ashraf

On May 11, the Supreme Court is set to decide whether triple talaq is unconstitutional. Should it indeed declare the practice unconstitutional, as is widely expected, what would be the implications? What does unconstitutional mean? Will the system of nikah halala, or intervening marriage, stand annulled? And, above all, will it uplift Muslim women economically and socially?

Scroll.in put these questions to Faizan Mustafa, vice chancellor of Nalsar University of Law, Hyderabad. He explains all you would want to know about Muslim Personal Law, the forms of divorce in Islamic law, and the implications of the Supreme Court declaring triple talaq unconstitutional. Excerpts from the interview:

If the Supreme Court were to declare triple talaq unconstitutional, in what ways would it change the methods of divorce under Muslim Personal Law?

Constitutionality of a law can be tested only on two grounds. One is the competence of legislature. So, if it is a parliamentary law, the subject must be within the legislative competence of Parliament – that is, it should be in the Union List or the Concurrent List. If it is in the State List, courts may strike down such a law as unconstitutional. Similarly, if it is a state law, the subject should be either in the State List or in the Concurrent List.

Two, the law in question should not be inconsistent or in contravention of the fundamental rights. If it is determined to be so, it would be struck down as unconstitutional. This is called constitutionalism or the idea of limited government. The underlying principle is that the state should not violate the fundamental rights, which face the gravest threat from the state because of the power it possesses. This is why Chapter III on Fundamental Rights starts with the definition of ‘state’ in Article 12 of the Constitution. Thus, it is the state, not citizens, which is the primary addressee of the fundamental rights.

How far we can strike down private and personal decisions between husband and wife as unconstitutional is difficult to tell. The Delhi High Court has held that bringing the Constitution in family matters will be like a bull in a china shop.

In any case, even Parliament or the government does not care much about something having been declared unconstitutional by the Supreme Court. In Mithu Singh (1983), the Supreme Court held mandatory death sentence to be arbitrary and unconstitutional. Yet, after 1983, several laws have been passed by Parliament providing for mandatory death sentence.

When Parliament does not follow the court’s verdicts, how far private individuals will desist from triple divorce is anybody’s guess.

I am not hopeful of the ground situation changing drastically for better except for the educated or liberated women who may take some solace in getting their triple divorce nullified by the courts after a long and protracted legal battle.

Talaq-ul-Biddat annuls a marriage instantaneously and irrevocably. In other words, the husband can’t remarry his wife whom he had divorced until she marries another person, consummates the marriage and then gets divorced again (the system is called halala).

Yes, this is so for at least those who consider triple divorce valid.

In case triple talaq is deemed unconstitutional, will it also bring an end to the system of halala?

Yes and no. In triple divorce, reunion is not possible. So if triple divorce goes, halala too will automatically go. But then the nuanced position is that in Talaq-e-Ahsan, husband and wife can reunite only twice but if they divorce for the third time, the option of remarriage is not available until…(there is halala).

But first, let us try to understand this controversial subject of intervening marriage or halala. As a matter of fact, a Muslim can revoke his first divorce within three months without doing anything. If three months have passed without revocation, if both husband and the divorcee want to revive their relationship, they may simply remarry with fresh nikah (marriage) and mehar (dower to be paid by husband).

If again, after sometime there is second divorce, husband may either revoke divorce on his own within three months or remarry yet again if three months have passed and both are willing to reunite.

When the same story gets repeated a third time, then Islam treats the husband and wife as what is called the “prohibited degrees” and they cannot now remarry each other. If this divorcee contracts another marriage which also collapses or she becomes widow, and if she and her first husband, out of their own free will, want to marry yet again, the prohibition stands removed and they can enter into a fresh marriage contract for the fourth time.

Can such a thing really happen with any couple?

Not at all. Which lady will like to marry a man who divorced her and then took her back to divorce her again and then the third time? We must remember that no intervening marriage is permissible as an arranged device to remove the prohibition of marriage.

The Hindu Marriage Act, too, talks of prohibited degrees (sapinda) within which marriages are not permitted. For instance, spouses should not be related to each other for seven generations from the father’s side and five generations from the mother’s side.

Even the Special Marriage Act, which is the most progressive piece of legislation, mentions as many as 37 categories of prohibited relationships, disallowing marriages among those who fall in these categories. For instance, mother’s brother is in the prohibited degrees for the niece yet such marriages are common. Khap Panchyats, too, do not permit marriages between boys and girls of the same village as they consider them to be brothers and sisters and, thus, in the prohibited degrees.

Thus, on third divorce, under Islam, husband and wife come (within the domain of) prohibited degrees temporarily. No court can say it is arbitrary and unconstitutional. In any case, the prohibited degrees concept is an essential feature of any religion. Religion is all about what is permitted and what is prohibited. It is a question of belief. Rationality does not underlie such blind beliefs.

“The incidence of triple talaq is low. But there are genuine cases where husbands have been quite irrational and inhuman in giving triple divorces. The media gives a lot of prominence to such rare incidents. One gets worried when courts and governments, too, are influenced by such reports and get carried away by stereotypes.”

If the prohibited degrees of Hindu law are recognised as non-arbitrary, the prohibited degrees of Muslim law cannot be struck down as unconstitutional. If this is done it will be hit by Article 15(1), which prohibits discrimination “only” on the basis of religion.

In any case, the incidence of halala is negligible. Personally, I have not yet heard of a single case. In Masroor Ahmad, the Delhi High Court has rendered nugatory the effect of the so-called halala system.

Even a survey of the Bharatiya Mahila Muslim Andolan (which has spearheaded the movement for abolishing triple talaq) mentions just two cases out of 117 where their respondents said they were asked to undergo halala. The weakness of their questionnaire is evident as there was no follow-up question on who made the suggestion to them.

In another study, the Andolan found that just 1.6 per cent of women underwent halala. Here also it does not tell us why these women went back to their husbands who were not giving them maintenance even during their marital life and were subjecting them to violence. Did their parents force them to return to their first husbands? Was this intervening marriage used as a device to facilitate their remarriage with the first husband? If yes, such marriages are clearly prohibited.

Even if triple talaq is declared unconstitutional, assume a wife accepts the validity of instant talaq, what happens then?

Good question. Unconstitutional or not, most divorcees, out of fear of God, will accept the completion of divorce on the pronouncement of triple talaq. Even Shah Bano apologised. In Masroor Ahmad case, the wife went against the husband alleging that he had raped her as she was no more his wife after triple divorce. Of course, the Delhi High Court held that since three pronouncements are to be counted as one, there was no divorce and thus no rape.

Will a judgement declaring triple talaq unconstitutional debar clerics from issuing certificates of divorce to a couple who parted ways through instant talaq, that is, talaq pronounced thrice in one sitting?

No. Clerics issue fatwas to those who seek their opinion. Such opinions do not have any legal sanctity. They will continue to issue fatwas as per their understanding of Muslim Personal Law. My research, however, has proved that the number of people who seek fatwa on triple divorce is very small. This means the incidence of triple divorce is negligible.

Would it be right to assume that the Supreme Court can declare triple talaq unconstitutional but cannot order punitive action to be taken against those who violate its order? Can those pronouncing talaq three times in one sitting be hauled up for contempt of court?

Courts cannot prescribe punishment for triple divorce. Only Parliament can declare triple divorce to be a crime and prescribe punishment. Contempt powers are generally not used like this. Chief Justices of India and other judges have been expressing their displeasure on their directions or orders not being complied with, particularly by the government. Recall the court order on Aadhaar being optional. The re-promulgation of the ordinance on it was a fraud on the Constitution. Parliament has overturned a good number of court orders, for instance, on the Enemy Property Act.

If triple talaq is declared unconstitutional, can the executive enact a law imposing some form of punishment on those who are found to have divorced their wives by pronouncing talaq three times in one sitting? If yes, do you think it would anger Muslims?

Yes, I have been consistently writing that Parliament alone can do it. Yes, it may lead to protests but Muslim women could decide to come in support of such a law. It is claimed that Muslim women voted for the Bharatiya Janata Party in Uttar Pradesh on the promise of banning triple divorce. But then 4.8 crore Muslims, including a large number of women, are still with the Muslim Personal Law Board.

What data do we have on the incidence of triple talaq?

As per the 2011 census, only 0.49 per cent Muslim women were divorcees and all of them, obviously, were not given triple divorce. To find out the prevalence of triple divorce, I collected data from Darul Ifta (institutions which issue fatwas). The data from such institution in 10 states revealed that in the last one year, 340,206 fatwas were sought. Of which only 6.50 per cent were for triple divorce. On the same issue, husband, wife, relatives and friends seek opinion and, therefore, this does not mean 6.50 per cent is the rate of triple divorce.

I also collected data from 74 Sharia Courts (Arbitration Councils) run by the Muslim Personal Law Boards in 15 states. I found these councils rarely grant triple divorce and that divorce is permitted only through one pronouncement preceded by efforts of reconciliation through arbitration. Out of 1,252 divorce cases, only 16 were of triple divorce or just 1.28 per cent. Such institutions are mostly used by Muslim women for either getting divorce (31.49 per cent) or annulment or cancellation of marriage (27.09 per cent) as also for getting settlements. They take recourse to them because these are speedier and more cost effective than courts.

Why, then, has triple talaq become a symbol of all that ails Muslim women, and the community?

The incidence is indeed low. In some cases, even when divorce is by mutual consent or at the instance of wife after the failure of several rounds of arbitration, mediators and, many a time, lawyers themselves advise the two parties to record triple divorce. This is because they think three pronouncements must be made or recorded in writing to complete the divorce. At the same time, there are genuine cases where husbands have been quite irrational and inhuman in giving triple divorces. The media gives a lot of prominence to such rare incidents. One gets worried when courts and governments, too, are influenced by such reports and get carried away by stereotypes.

There are many Muslims who say there is such a hue and cry about triple talaq, but there is rarely any clamour about the deplorable economic condition of Muslims and the discrimination they encounter. Is it justifiable to not reform divorce laws of a community only because nothing substantial is being done to uplift it?

I am all for reform. In fact, I have consistently maintained that even the Uniform Civil Code should be enacted piecemeal. The truth is no one is really concerned about the real problems dogging Muslim women. These are poverty, unemployment and education. Why can’t the government insist on opening more Kasturba Gandhi Girls schools in Muslim dominated areas? If the government wants to reform Muslim Personal Law, then it has to constitute a committee on Muslim law just as the Hindu Law Reform Committee was in 1941.

Assume the Supreme Court goes against popular expectation and declares that triple talaq is not unconstitutional or that personal law is not law as defined in the Constitution, what happens then?

Nothing. We must understand that law or judicial decisions do not solve social problems. The issue of personal law being “law” is an interesting one. Judicial decisions are “laws” under Article 141, which means that a law declared by the Supreme Court shall be binding on all courts throughout the territory of India. But the same is not “law” under Article 13(3), thus we cannot say X or Y decision of the Supreme Court is unconstitutional as it is contrary to the fundamental rights.

We do not test judicial decision on the touchstone of fundamental rights. Moreover, if customs are laws, then any custom contrary to the Constitution should automatically under Article 13(1) become void. But then the question arises: Why did we need Article 17 to specifically declare that untouchability has been abolished?

Article 372 uses the expression “laws in force” on the commencement of the Constitution. Since personal laws were laws in force in 1950, can we include them within the expression “law”?

No, because the President was given power under Article 372 to make adaptations and modifications to the “laws in force” by way of repeal or amendment. No one can argue that the President was given power to make adaptations or alterations or amendments in personal laws. Thus Muslim Personal Law is not “law” within the meaning of Article 13.

In any case, Muslim Personal Law is largely based on juristic opinions that followers of a particular school prefer to follow. If they think any rule of their school is causing hardship, they may switch over to another school. Even Sunnis become Shias to take the benefit of law of inheritance, which is more favourable to daughters.

Can the government redefine personal law to bring it within the ambit of the Constitution or abolish triple talaq through a legislative fiat?

Of course, it can, but mere normative changes in law do not bring social reforms or social change. We need to convince ulema that they must educate the masses about the correct method of divorce.

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.