‘Only the Quran has to be consulted on triple talaq’
Manipur Governor and former minister for minority affairs NAJMA HEPTULLA tells ADITI PHADNIS that issues relating to rights of Muslim women must be decided by courts, not religious or community leaders.
The Supreme Court has heard the issue of divorce of Muslim women and whether triple
talaq is consistent with Islam and the Quran. How do you see the issue? I am very happy that the Supreme Court has heard the issue of triple talaq.
The question that the Supreme Court has asked: Is marriage a religious sacrament or not? Because if it is a religious sacrament, then they will not interfere. But I want to categorically say with all the responsibility at my command that marriage is a contract in Islam. It is not a religious sacrament.
Religious sacraments are like namaz, or roza or the Haj… these are religious duties that one has to perform and they are what the Quran has identified in the Hadees — that these are the things you have to do to qualify to be a Muslim.
But in the Quran the rights of a Muslim woman are clearly enshrined. She can own property, transfer property, do business, transact and make any contract, any legal contract to run her own affairs. And marriage is also a contract between two people: to agree to marriage in front of two witnesses and one agent or muvvakil, as they call him. Those three people should know the boy and the girl. And they make a contract that is called a nikahnama, which spells out where the marriage took place,
the name of the girl, the name of the boy, the name of the parents and against how much
mehr she is getting married. We have no taking vows round the fire, no business of till-death-do-us-part and no kanyadan. The husband’s responsibility ends the moment the contract is terminated by divorce after the payment of mehr.
But nowhere in the contract does it say that the man has the unilateral right to dissolve this contract. When it is a contract, he cannot give her a
talaq on WhatsApp or by email or on Skype or telephone or fax, which are new innovations today.
Some people — the religious people, for their own personal interest of wielding power by keeping the community under their control — are happy when it comes to modern technology even when it is used against women. But when it comes to the rights of women, they go back to the pre-Islamic era. Because the talaq and the triple talaq existed in the pre-Islamic era. That was abolished by the Quran, by the Prophet Mohammad. It is not there any more. So I am very happy that the Supreme Court has heard the issue. The orders are reserved. But I want to repeat categorically: In Islam, marriage is a contract and not a religious sacrament. This matter came up earlier also and there was a lot of controversy on the issue of Shah Bano. You were part of the Congress at that time. You defended the right of a Muslim woman to be given compensation, thereby legitimising triple talaq. No, I did not defend or legitimise triple talaq. Not at all. I was against it then also. My position was that mehr should be according to the status of the man for the economic support of a divorced woman. He must pay according to his status, otherwise the women go on to the streets. That was my contention.
I had very clear views, which I laid before Rajiv Gandhi. I know who said what at that time. I can identify them. None of those who are talking today were at the table when the discussion on triple talaq took place in those days with religious leaders. Most of the members of the All India Muslim Personal Law Board (AIMPLB) are no longer among us. Some are, like Yusuf Muchhala…
Rajivji asked me when I was very strongly defending the rights of women which is enshrined in the Quran… he told me — I don’t know what his compulsions were, I never asked him — to have a discussion with the Personal Law Board. I didn’t want to talk to them alone, so I requested the late Asoke Sen, who was the law minister, to be present. I asked them, “Why are you not giving women their rights which are enshrined in the Quran?” They said: “We don’t want the government to interfere in these matters. We will do the reforms ourselves.” That is what they are saying today as well. Today also they are saying the same thing. Thirty years ago they said something. Today, they are saying the same thing.
Secondly, they don’t have any legal position or standing. They only have the status of an NGO. Even 30 years ago, it was Parliament that passed the law. And the law has to be implemented. Who is going to implement it? Not an NGO, surely; the law has to be implemented by the executive, by the court, by the authorities. Even if somebody comes out and says triple
talaq should be banned, which agency will implement it? Not the AIMPLB or NGOs or maulvis or mullahs. It has to be implemented by the government or the Supreme Court, or the high court. So I’m happy that the court is taking up these issues and they should be clear that they are within their rights and jurisdiction to take up these issues. The Personal Law Board says it has formed a modern nikahnama, which is on the website; anybody can use it. As representatives of a religious group, they also want to be consulted on the legal positions that the government takes on their behalf. And they say that they have represented to the Prime Minister’s Office and nobody has called them for detailed consultations… Well, the Prime Minister’s Office also knows what they did 30 years ago. Why should you give them any chance? Thirty years is a long time for them to decide what is to be done. Now they are putting a nikahnama on the website. What are the conditions in the nikahnama? If a man divorces his wife by saying talaq three times, are they going to punish the man? Do they have the authority to punish him? Who is going to punish him? It is the court which will punish the person.
And why should they be consulted now? Nobody has to be consulted. It is the Quran that has to be consulted. That’s it. No individual or group requires to be consulted. It is the Quran which has to be consulted because it clearly identifies everything about the code of conduct, marriage and rights of the woman.
These mullahs — I asked them 30 years ago also – what about the khulla? Women also have the right to divorce. At that point of time, Rasul-ullah or Hazrat Umar for instance, was the legal authority and also the ruler. If there was any complaint, women or men would go to them and they would take a decision. A case came up before Hazrat Umar where a woman came to him and said my husband has said talaq three times and I have come to complain. He called the man and gave him three lashes and asked the woman: ‘do you want to go back to him’? she said: ‘no, I don’t want to go back to a man who has treated me like this. He said: ‘okay, I will let you be’. He had the authority. These mullahs – do they have that authority?
It is the court that has to implement the law, not a set of mullahs. And then there is the issue of destitution of women who have been divorced. 30 years ago, they said they will set up a fund which will help these women. What happened to that?
The matter must be left to the courts which have the backing of the law.