The parallels are easy to draw. And that is what The Telegraph does by titling its story ‘Bano, once again’. Like Shah Bano Begum, Shayara is also a victim of the ‘un-Islamic’ triple talaq. Shayara is much younger, in her mid thirties, mother of two and better educated compared to the senior Bano. Fifteen years into the marriage, in October last year, she received a letter from her husband with the word talaq written thrice. Fissures seem to have appeared in her married life much earlier. But things reached a flashpoint when she was sent to her parents’ home and served with the talaqnama.
Now she is seeking legal remedy. And the remedy she seeks sets her apart from Shah Bano. Shayara is not just demanding maintenance. She wants triple talaq, halala (an inhuman practice, which requires a divorced woman to marry another man and consummate the marriage before she could return to her first husband) and polygamy, which have legal sanction under Muslim Personal Law, to be declared unconstitutional.
What is the significance of this?
Courts’ approach so far
So far, the courts have been approaching the question of triple talaq and maintenance from a narrow perspective—whether the practice has Quranic sanction or not. They were, without a doubt, determined to set right the gender inequality. All they looked for was a stamp of approval— however weak, remote or convoluted the approval was—from Quran and Hadiths. Consider the following cases:
- Shah Bano’s case. The court awarded maintenance to the ‘indigent’ Shah Bano, beyond the iddat period of approximately 3 months. How did it arrive at this decision? By going into great lengths to interpret Ayats 241 and 242 of Chapter 2 of Quran and the terms ‘mata’ and ‘mahr’. It found that Sec 125 of CrPC did not in any way contradict the prescriptions of Quran and awarded a princely sum of Rs. 179.20 per month to Shah Bano. Result: Rajeev Gandhi government used the same Quran to overturn the judgement. It passed an Act that absolved the husband of any responsibility to pay maintenance beyond the iddat period. Thereafter the divorced woman was to be at the mercy of her relatives and if she did not have any, at the mercy of Wakf Board.
- Danial Latifi case: The court was asked to decide on the constitutional validity of the Act passed by Rajeev Gandhi’s government. What did the court do? It used the same arguments and Ayats that were employed in the Shah Bano case to uphold the validity of the Act that overturned the earlier judgement! It concluded that the divorced woman was adequately taken care of by the new law. Of course, it gave an ingenious interpretation to the Act. While the husband’s liability to pay maintenance ended with the iddat period, the amount of maintenance should cover not just the iddat period but also the rest of the life of the divorced woman. In other words, the overriding consideration of the court was to protect the destitute woman, but it was just looking for external confirmation.
- Shamim Ara case: Saif Mahmood, an advocate, declares in an NDTV debate that triple talaq has been rendered illegal by this case. Again, how is the case decided? The court looks at what Mullah’s Principle of Mohammaden Law, Tahir Mohammed’s The Muslim Law of India and Justice V Khalid’s judgement in an earlier case have to say. They confirm a man’s absolute, unilateral right to divorce his wife. Obviously inconvenient. Then it turns to a long winding argument Justice Krishna Iyer had made in a case 30 years earlier that Quran had indeed placed restrictions on a man’s power to pronounce talaq. It latches on to it and declares triple talaq illegal.
Instead of simply declaring these practices discriminative and hence unconstitutional, courts have strived to prove they are un-Islamic and hence invalid. The problems this approach gives rise to are the following:
- Indian courts are not authorities on Quran or other scriptures of Islam. And it is not the job of the judges to interpret Quran.
- Quran seems to lend itself to multiple interpretations. In her book ‘Denied by Allah’, Noor Zaheer lists the different rules Sunnis and Shia follow for divorce. For instance, she says, ‘Sunni practice requires no witness, and allows a husband to end a relationship by saying the one, two or triple talaq in a single breath.’ ‘Shia practice, on the other hand, requires two witnesses, followed by a waiting period.’ Peter Townsen, in his book ‘Questioning Islam’ points to contradicting verses in Quran relating to heaven, earth, the number of days Allah took to create the universe, how human beings were created, idolatry, etc.
- Townsen argues further that the Quran we have today may not be a complete one. From among the innumerable examples he gives, consider the following:
- Quran was compiled almost 200 years after the Prophet died.
- It was compiled by 3rd Caliph Uthman who was no scholar in Islam. He burnt other copies, which he thought were fake.
- Shias’ Quran contains two extra chapters that Sunnis’ version does not have.
- Prophet himself admits to forgetting parts of Quran. (Sahih Muslim 4:1 721)
- Ayesha, the favourite wife of the Prophet, says that an important verse was removed from the Book.
- Al-Hajjaj Ibn Yusuf Al-Thakafi made numerous changes to Quran to make it more intelligible.
- A manuscript of Quran found in Yemen in 1972 dates back to 680 CE and differs significantly from the current day’s Quran.
With all these confusions surrounding the completeness of Quran, is it fair for Indian judiciary to find verses to support their judgement? What if a new verse emerges tomorrow, which repudiates the current one?
The change in the approach
In a recent case while disposing of an appeal under the Hindu Succession Act, the Supreme Court said it would like to deal with the issue of gender discrimination in Islam, especially the plight of Muslim women as a result of arbitrary divorce. It would like to evaluate whether fundamental rights of Muslim women are violated by the pronouncement of talaq. In others words, it is not going to ascertain whether talaq is un-Islamic. It is going to find out whether it is unconstitutional. It wanted a separate PIL registered for the purpose. Now Shayara’s application is being heard along with this.
The Response of the liberals
Before even the Supreme Court has started hearing the case, the liberals have started obfuscating the issue. Consider what Dr Zeenat Shaukat Ali of Wisdom Foundation who has been hopping channels of late has to say in Times Now debate: ‘This kind of divorce is not allowed by Quran…Please note that Islam mein triple talaq ki koi baat hai nahi.’
Another social activist Naish Hasan whom Times Now describes as the co-founder of Bharatiya Muslim Mahila Andolan says, ‘Talaq as envisaged in Muslim Personal Law (Sharia) Application Act, 1937 is not in line with what Quran says.’
Both of them elaborate how Quran has been quite considerate of the women’s rights and provide for a reconciliation process.
‘There is no contradiction between the Quranic law and the Indian judiciary,’ says Zafar Sareshwala in the same debate.
Sadia Dehlvi makes similar points in the NDTV debate referred earlier.
Why this hurry to link the current case to Quran and Islam? Will this loud discourse in mainstream media not inhabit the judges who will be studying the validity of talaq, halala and polygamy? Is this not a subtle attempt to seed the idea that the case should be decided in accordance with Quranic prescriptions?
Coming to this undue haste to declare that Quran is perfect and only some misguided clerics have been interpreting it wrong, don’t these arguments sound familiar? Are they not similar to what the liberals used to say in the immediate aftermath of terrorist attacks and bomb explosions, whether in India or elsewhere?
Islam is a religion of peace. Radicals have given a perverted interpretation to the Holy Book.
For a decade and half, they have been repeating these lines tirelessly and have succeeded in shaping the response of different countries to acts of terrorism.
Let me conclude by quoting the first two paragraphs of Ayaan Hirsi Ali’s book ‘Heretic: Why Islam needs a reformation now’:
On ______, a group of ______ heavily armed, black-clad men burst into a _____ in ______, opening fire and killing a total of ______ people. The attackers were filmed shouting “Allahu akbar!”
Speaking at a press conference, President ______ said: “We condemn this criminal act by extremists. Their attempt to justify their violent acts in the name of a religion of peace will not, however, succeed.”