“the talaq ver­dict is just a be­gin­ning…”

Governance Now - - CONTENTS - Pankaj Ku­mar

Arif Mo­ham­mad Khan, for­mer cab­i­net min­is­ter, talks about the his­toric ver­dict and whether it will im­pact is­sues like polygamy and uni­form civil code

The supreme court has held the prac­tice of triple talaq as un­con­sti­tu­tional. This takes us back to the Shah Bano case and the ques­tion of re­form­ing the Mus­lim per­sonal law. Had it not been over­turned by Ra­jiv Gandhi in 1986, how would it have im­pacted the Mus­lim so­ci­ety?

The year 1986 played a very im­por­tant role as the is­sue of triple talaq be­came quite per­ti­nent on the na­tional fo­rum. Peo­ple had started de­bat­ing it but there were hardly a few peo­ple in the mus­lim com­mu­nity who were ready to speak against the mus­lim per­sonal law board. But in the last 10-15 years there has been a sea change in the at­ti­tude of mus­lims as they started lis­ten­ing to views against triple talaq and the mus­lim per­sonal law board. ra­jiv gandhi was com­pelled to over­turn the de­ci­sion of the supreme court in the mat­ter of shah Bano though he was a man with mod­ern ap­proach. The mus­lim per­sonal law board started a very ag­gres­sive cam­paign against the de­ci­sion of the supreme court. The board had openly called for as­sault on mus­lim lead­ers who were op­posed to triple talaq. even judges were not spared by some mus­lim lead­ers in par­lia­ment. so there was back­lash in so­ci­ety and as a re­sult peace and har­mony be­tween Hindu and mus­lims got dis­turbed – much more than the par­ti­tion in 1947. As a re­sult, the Ay­o­d­hya is­sue came into the pic­ture, to pla­cate Hin­dus. so who was re­spon­si­ble for all this? none other than the mus­lim per­sonal law board as they started a very ag­gres­sive move­ment to pres­surise the gov­ern­ment to over­turn the shah Bano judg­ment.

Why is the board con­sid­ered the rep­re­sen­ta­tive of the com­mu­nity? Does it truly have wider ac­cept­abil­ity in the com­mu­nity?

no, this is not true. They are given un­due weigh­tage. Had they been dealt with sternly in 1986, things would have been dif­fer­ent. Three months back, when the pro­ceed­ings started in the court, there were many who were threat­en­ing and say­ing in­ter­fer­ence in per­sonal law or sharia law will not be tol­er­ated. But to­day, af­ter the judg­ment, ev­ery­one is wel­com­ing it and there is hardly any dis­sent­ing voice. Ac­tu­ally, the prob­lem lies with the po­lit­i­cal es­tab­lish­ment which does not be­lieve in a di­rect di­a­logue with the mus­lim com­mu­nity. Po­lit­i­cal es­tab­lish­ment al­ways needs mid­dle­men to deal with the com­mu­nity, ig­nor­ing their ba­sic rights. Po­lit­i­cal par­ties have al­ways cre­ated in­se­cu­rity among them by pos­ing as the saviour of the com­mu­nity. Who are they to pro­vide se­cu­rity? it is the right of every cit­i­zen, ir­re­spec­tive of caste and re­li­gion, as the law of land will en­sure se­cu­rity for them. Those who pre­tend to be the

cham­pi­ons of sec­u­lar­ism are the ones who speak against the con­sti­tu­tion.

How come Mus­lim women suf­fer more even though the di­vorce rate is higher among the Hin­dus?

This is a great judg­ment and this has brought great re­lief to mus­lim women. A young mus­lim girl grows up with a sense of in­se­cu­rity that her fu­ture hus­band can di­vorce her any­time and throw her out of house. Wo­man with four-five kids have been thrown out of house. They re­main help­less as they find no place to go where they can get jus­tice. it is true that the di­vorce rate is higher among the Hin­dus than mus­lims, but the process of di­vorce is com­pli­cated in the Hindu so­ci­ety. Hindu women get claims and all, and only then they get di­vorced but Mus­lim women are di­vorced first, and then they go to court for claims un­der sec­tion 125 [of crpc, re­lat­ing to main­te­nance]. You go to court, and you will find only Mus­lim women seek­ing claims un­der sec­tion 125.

Will this judg­ment help abol­ish the prac­tice of ha­lala which has been al­leged to be widely mis­used by a sec­tion of mul­lahs?

There is only one form of talaq in is­lam and it takes min­i­mum six months to con­clude. First, the hus­band and wife are asked to patch up, [fail­ing which] they are asked to live sep­a­rately in the same house even as me­di­a­tion goes on. one per­son from the bride’s side and one per­son from the groom’s side par­tic­i­pate in me­di­a­tion. if things still don’t work, they are asked to go for talaq, but they have to live to­gether for an­other three months be­fore sep­a­ra­tion. Thus, it takes six months for talaq to get for­malised. There is no ques­tion of prac­tis­ing ha­lala if this process is adopted. Ha­lala comes into pic­ture when triple talaq is prac­tised.

The board as well as a sec­tion of cler­ics have crit­i­cised the judg­ment as in­ter­fer­ence in per­sonal law. Does it mean dif­fer­ent in­ter­pre­ta­tions of Qu­ran are caus­ing prob­lems?

Triple talaq is nowhere men­tioned in any in­ter­pre­ta­tion. Peo­ple from the board have openly said that Qu­ran is not the only source of sharia and this has been widely re­ported in bold let­ters in var­i­ous news­pa­pers. in fact, this has been said by none other than fa­mous cleric Ar­shad madni. Had it been said by some­body else on a dif­fer­ent oc­ca­sion, there would have been hue and cry from the same peo­ple. i am truly shocked but let me tell you that the only source of sharia is the Holy Qu­ran. Prophet mo­ham­mad has him­self said that any­thing at­trib­uted to him must be checked with the Qu­ran. so, re­li­gion is a mat­ter of be­lief and it should not be turned into a pro­fes­sion. ninety per­cent of the fat­was are as­so­ci­ated with triple talaq. This busi­ness is go­ing to be over now. That’s why these in­ter­pre­ta­tion and other is­sues are com­ing out.

Polygamy is an­other prac­tice which is le­gal among Mus­lims though it is prac­tised among other com­mu­ni­ties too. Will this judg­ment curb polygamy also?

Again, the kind of polygamy al­lowed in the mus­lim so­ci­ety is not per­mit­ted in the Qu­ran as per my un­der­stand­ing. it was al­lowed un­der spe­cial cir­cum­stances when peo­ple from mecca had at­tacked med­ina where the great prophet was re­sid­ing. A third of the male pop­u­la­tion was killed. There were or­phan kids. so it was al­lowed on the con­di­tion that jus­tice can be done to all. Though next ayat dis­ap­proves it, as jus­tice to all is not pos­si­ble. so main ayat pro­hibits polygamy, but con­di­tional per­mis­sion was made into a law, that too un­re­strained, and the main ayat was ig­nored. This [the supreme court ver­dict] is the be­gin­ning and i fore­see many changes in fu­ture.

Can this judg­ment be a pre­cur­sor to the uni­form civil code?

We can dis­cuss the uni­form civil code if there is some roadmap in front of us. We can sup­port or op­pose it, since we are a sec­u­lar democ­racy. sec­u­lar democ­racy means uni­for­mity of law where no one can be forced to do some­thing which his or her re­li­gion pro­hibits and no one can be pre­vented from do­ing some­thing which his re­li­gion per­mits. Ac­tu­ally, a vi­brant so­ci­ety is never rigid and it em­braces sev­eral good things with­out los­ing its identity. so with­out hurt­ing sen­ti­ments of any sec­tion of so­ci­ety, we can adopt some means, make such laws [like the uni­form civil code]. But the prob­lem lies some­where else. [For­mer rss chief ms] gol­walka­rji had said that peo­ple who talk of the uni­form civil code do not un­der­stand the di­ver­sity of this na­tion. He said some sup­port it to an­noy mus­lims and oth­ers op­pose it to ap­pease. So one is flat­terer and an­other one is flat­tener, and he op­posed both of them.

There is a law against dowry and there is an­other law about women’s share in in­her­i­tance, and yet dowry is preva­lent and the law of in­her­i­tance is hardly fol­lowed. Do you think mere law can abol­ish a prac­tice like triple talaq?

law cre­ates aware­ness and it ed­u­cates peo­ple. Fifty years back no wo­man could have dared to op­pose dowry but now a num­ber of women are com­ing out to op­pose it and re­ject the mar­riage pro­posal if dowry is sought. sim­i­larly, so­ci­ety has changed. You will now see women ask­ing their hus­bands to get out of house if they are given talaq. now it will be­come a fit case of ha­rass­ment. once pun­ish­ment is meted out for triple talaq, it will act as de­ter­rence. You can­not imag­ine how this will change the morale of women and at last it will im­pact the whole so­ci­ety.

“With­out hurt­ing sen­ti­ments of any sec­tion of so­ci­ety, we can adopt some means, make such laws [like the uni­form civil code]. But the prob­lem lies some­where else. Gol­walka­rji had said that peo­ple who talk of the uni­form civil code do not un­der­stand the di­ver­sity of this na­tion.”

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