Even as the dispute over triple-talaaq and polygamy amongst Indian Muslims rages in the society and in the courts, there has been an interesting twist to the episode. An advocate, Farha Faiz, who is also an activist for gender equality among Muslims, filed a petition in the Supreme Court earlier this month, seeking abolition of the All India Muslim Personal Law Board (AIMPLB) and the Sharia courts. A Bench of Chief Justice of India TS Thakur and Justice DY Chandrachud has taken cognisance of the petition and asked the Centre to respond in four weeks’ time. If this case embarks on a long legal journey, it will prove to be an interesting factor in an issue already complicated by various claims and counter-claims.

Farha Faiz has not minced words. She told the court through her affidavit that the existence of the AIMPLB had complicated matters for Indian Muslims. “Muslims always face a dilemma whether religion is above the country.” She claimed the Board “never preaches in favour of the nation. It always creates Islamophobia in the minds of people.” To demonstrate the ‘suspect’ loyalties of the AIMPLB, she gave the instance of a prominent seminary, the Darul Uloom Deoband, which, of course, backs the Board. She said, “It never takes direct financial assistance from its own Government while it accepts millions of rupees from all over the world.”

Located in Uttar Pradesh, the institution is mandated to promote the Muslim cause. On its website, the Darul Uloom claims that, “besides the Jam’a-e-Azhar in Cairo, there is no such institution (like the Darul Uloom) in the Islamic world that may have acquired so much importance in point or antiquity…” In other words, secular India has a Muslim seminary matched only by the one in Cairo and none in the Islamic world. So far so good. But then, there are many poetic passages on its achievements. It is “a shore-less ocean” from which the world has benefitted; it’s a “very brilliant sun” that has illuminated “all the moons and stars in the sky of the Shariah”; “the whole of Asia is redolent with the aroma of this prophetic garden”; “the spring of grace of the Darul Uloom…has been busy in quenching the thirst of the seekers of knowledge”, and so on. Nobody is left with any doubt that the Darul Uloom is here to render “invaluable service to the cause of Islam, the Muslims and the religious sciences”. Admittedly, it has given the nation some respectable and moderate scholars. So, why did advocate Farha Faiz pick on this venerable institution while making her case against the AIMPLB?

The Deoband seminary, by its own admission, is the fountainhead of Islamic knowledge in the country — and across the world. Therefore, its position on matters of religion is not just respected but adhered to by vast sections of the Muslim community in India. The Darul Uloom, Deoband clearly believes that the practice of triple-talaaq squarely falls within the religious domain. Six years ago, it had issued a fatwa (an edict) that talaaq pronounced thrice, even if in anger, is valid and the couple is bound by it, according to the Muslim personal laws. The cleric of the seminary in charge of the fatwa department, ruled that the ‘intention’ did not matter; so long as divorce was pronounced in clear words, it came into immediate effect. If talaaq pronounced in anger, is valid, surely the seminary will have no objection to divorce being delivered through postal cards and e-mails, as is being done today. As far as critics are concerned, the Darul Uloom Deoband is not just endorsing a gender-discriminatory practice but is also strengthening the hands of the AIMPLB in its campaign to discredit the women’s movement which has sprung from Muslim society itself, against triple-talaaq and polygamy. They wonder if this is the proper way to propagate Islamic teachings that in reality lay great stress on women’s equality.

Advocate Farha Faiz may have stirred a hornet’s nest now with her plea against the AIMPLB, but quite a few (though not enough in the public domain) Muslim leaders and scholars have in the past taken a similar stand. At least two of these, Arif Mohammad Khan and Tahir Mahmood, deserve mention. Khan was a prominent member of the Congress during Rajiv Gandhi’s premiership. He had strongly advocated the rights of Muslim women and opposed their exploitation by clerics interpreting the personal laws against the women. He quit the party after Rajiv Gandhi’s Government capitulated before the hard-line Muslim clerics on the Shah Bano case. Incidentally, the Board had played a prominent role in the issue. Since then to date, Khan has maintained a progressive line and taken the clerics head-on, on matters of triple-talaaq and polygamy. Tahir Mahmood had served as the Chairman of the National Commission for Minorities. He is also a prominent Islamic scholar. In an interview to a magazine in 2015, he said, “Islam didn’t introduce this practice of triple-talaaq. Islam, on the contrary, tried to stop this.” On being asked if he tried to reason with the clerics who backed such a form of divorce, he replied, “I have spoken to them enough. I don’t want to waste my time anymore. I can’t convince the fanatics. They will remain what they are.” He pointed out that the practice had been banned by many Islamic nations. “Why should India be sticking to this seventh century law?”

But the AIMPLB appears determined that the country, and a secular one at that, should be holding on to the archaic practice. It told the Supreme Court earlier this month, in response to the petitions challenging the validity of triple-talaaq as it violates the Fundamental Rights the Constitution of India gave its citizens, that the court simply had no business to reform personal laws “in the name of social reforms”. The Board maintained that “personal laws cannot be challenged as violation of Part III of the Constitution” that deals with Fundamental Rights.

Two inferences can be drawn here. The first is that triple-talaaq does not violate any fundamental right of a Muslim woman. The second is that, even if it does, the final word rests with the personal laws which too the Constitution has provided for. It is for the apex court to take a call here— and sooner or later it will.

Besides falling back on the argument of religious sanctity which ‘cannot be challenged’, the Board has offered a bizarre justification for the continuation of triple-talaaq, and this alone should make one wonder if the AIMPLB, helmed by scholars in Islamic law and torch-bearers of the welfare of the country’s Muslim community, has lost the plot. This is what its counsel told the Supreme Court: “When serious discords develop in a marriage and husband wants to get rid of wife”, legal compulsions and time-consuming judicial process could turn dangerous for the wife. The husband “may resort to illegal criminal ways of getting rid of her by murdering her. In such a situation, triple-talaaq is a better recourse”. In blunt language, if a Muslim woman wants to be alive, she must quietly concede to her husband’s pronouncement of divorce — whether delivered through mail or a short message service over the mobile phone or even in a fit of anger. And if this is not shocking enough, here is another piece of wisdom from the Board. Arguing in the court, it said that “Sharia grants right to divorce to the husbands because men have greater power of decision-making. They are more likely to control emotions and not take hasty decisions.”

The AIMPLB was constituted in 1973 as a non-Government organisation with the avowed purpose to promote the enforcement of personal laws for its community members in the country — the Muslim Personal Law (Shariat) Application Act, 1937. As the name suggests, it is a British law framed with the purpose to win over the Muslims to British rule at a time when the movement for freedom had gained nationwide momentum. While the Constitution of independent India was in the making, several suggestions were offered and implemented to modify personal laws of other religions, but the personal law of the Muslim faith was left untouched, for probably political reasons. Framers of the Constitution were, however, clearly not comfortable with the idea of a personal law for one community in a nation where all citizens were to be governed by one law — both in civil and criminal matters. Thus, they mentioned the need for the implementation of a Uniform Civil Code, as enumerated in Article 44 of Directive Principles of State Policy. But of course, successive regimes had neither courage nor desire to move in the direction of a common code. The apex court has meanwhile expressed its inability to direct the Government to legislate a Common Civil Code, given that it is for the executive to take a call. But it did advice the Government to implement it.

Returning to the importance of the AIMPLB, there is a growing realisation at least among the progressive sections of Muslim society, that the Board has become irrelevant in today’s day and age. Over the last three decades, it made hay on two major issues: The Babri mosque demolition and the Shah Bano case. It arm-twisted Rajiv Gandhi to consent to its wishes on the second issue and continues to derive oxygen from the decades-old Ayodhya case, still waiting for a conclusion in the Supreme Court. In these years, the Board has become more of a rabble-rouser, ranting against both ‘Hindutva forces’ and liberal-minded within the Muslim community, than an organisation which is supposed to steer the country’s Islamic society to the path of progress. The growing number of voices within the community itself against the AIMPLB is evident in the petitions that women rights activists and affected individuals have filed in courts. In fact, even the All India Muslim Women Personal Law Board (AIMWPLB) has slammed the male-dominated body and called for the abolition of the triple-talaaq system which the AIMPLB holds so dear. The AIMWPLB came into being a decade ago to focus on contentious issues the community’s womenfolk face in the country. It’s not surprising that the women’s board deals largely with matters of marriage, divorce and inheritance rights — on all of which Muslim women have received little justice from the AIMPLB or the clerics who decide such cases on the basis of Sharia. The fact that a Muslim women’s board was formed speaks volumes about the status of their grievances before the male-dominated and frozen-in-time AIMPLB.

What has further dented the AIMPLB’s image is the politics it has engaged in over the years. The Board’s agenda is driven by its dislike of Narendra Modi — which was there before and after he became Prime Minister. The Board has so far refused to engage with the Modi Government on finding ways to improve the lot of the community. The AIMPLB has little time for chalking out plans for the uplift of young Muslims in the country through modern education and skill-training. But it has all the time to concentrate its energies on fighting cases in courts in a bid to maintain a status quo that should have changed yesterday. Further, the Board has been accused of promoting sectarianism by not whole-heartedly including the Shias and the Ahmadiyyas in its architecture. Indeed, there came to be formed the All India Shia Personal Law Board (AISPLB) a little over a decade ago. But owing to the sect’s smaller population in India and the overwhelming influence the AIMPLB has enjoyed over ‘secular’ Governments in the past in the country, the Shia Board over the years largely existed on paper. The same would have been the case with the All India Muslim Women Personal Law Board, which has been panned by leading lights of the male board as consisting of publicity-seeking Muslim women who have no understanding, much less appreciation, of the rights they enjoy under Islamic law. Interestingly, the activists agree fully that Muslim women have rights given to them by Islam, but allege that those rights had been denied to them by the clerics and leaders of the community. The coverage the women’s organisation has been receiving from activists fighting for gender equality and against the AIMPLB, has given them a refreshing lease of life. The Shia personal law board too has sprung to public attention lately. It has drafted a ‘model marriage contract’ — a new nikaahnama — that does away with the practice of triple-talaaq in one sitting, and has passed the document on to the AIMPLB for ‘vetting’ and with a view to reaching a general consensus among all sections of Muslim society. It is anybody’s guess as to what the AIMPLB’s view will be, given its obstinate position on triple-talaaq.

Meanwhile, all eyes will be on the stand the Government takes before the apex court on various aspects of the ongoing controversy. This includes the demand for a Uniform Civil Code. But a distinction needs to be made here. Activists advocating the abolition of the triple-talaaq and polygamy in Muslim society do not all necessarily support a common civil code. They base their argument on the premise that this form of divorce is simply not part of Islam and, therefore, not an inherent aspect of Muslim Personal Law which deals strictly with religious issues. In other words, they have no problem even if the personal law continues, but that triple-talaaq and multiple marriages must end. Of course, there also those who believe that the root cause of these problems lies in the Muslim Personal Law and that this legislation must be scrapped. Interestingly, if the personal law were to go, then the core reason for the existence of the various Muslim personal law boards too would cease to exist.

Whatever happens, it is reasonably certain the matter will finally get sorted out once and for all. The apex court is determined to take it to a logical conclusion, and the Government cannot anymore avoid taking a position.

(The writer is a senior political commentator and public affairs analyst)

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Published Date: 13^th September 2016 Image Source: http://www.shutterstock.com
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)