Muslims themselves can ban triple talaq, polygamy
By Syeda S. Hameed*
Once again the issue of triple talaq and polygamy has surfaced with Shayara Bano, a 35-year-old woman from Uttarakhand, recently filing a public interest litigation (PIL) (PIL) before the Supreme Court. Women’s groups, Muslim and non-Muslim, are meeting to discuss the strategy to support the Supreme Court’s intervention in getting Muslim women their rights under the Constitution. Other Muslim organisations, ulemas and maulanas through their legal counsels have argued that the court’s intervention would be tantamount to violation of their constitutional rights. They state that Islamic law is divine and should not be interfered with. Battle lines have thus been drawn. Underpinning this is the force of the Bharatiya Janata Party-led government, which has a declared agenda of bringing in the uniform civil code as one of its major election promises.
My appeal to the Muslim leaders is to stop this imminent danger by speaking about their efforts at internal democratisation, and move much faster to bring the practice of Islam closer to its spirit. They can themselves ban triple talaq, polygamy and introduce other gender-friendly reform.
Let me stop for a recap. In 2000, as a member of the National Commission for Women (NCW), I released a report, ‘Voice of the Voiceless --- status of Muslim women in India’’. It resulted from two years of public hearings I held all over India where Muslim women from poor and deprived sections told me their stories. Woman after woman spoke of her double disadvantage: abject poverty and harsh personal laws. In the report I retold their stories in their own voices and presented it to the government. Its recommendations were placed in three sections addressed to the Muslim leadership, to civil society and to the ulema. At the time the NCW chair was the feisty Mohini Giri, who completed her term before the report was released. I retired in 2000 and the new commission had limited interest in the subject, so the report became a dead letter.
Three years later in 2003 under the banner o Muslim Women’s Forum (MWF) I returned to the field for an impact assessment of the 2000 report. I discovered that nothing had changed on the ground. Obviously no section had taken notice of NCW’s recommendations. The MWF report had an aspirational title, ‘My Voice Shall Be Heard’.
Slow winds of change
Over the years other Muslim women’s organisations were formed such as STEPS in Tamil Nadu, Bharatiya Muslim Mahila Andolan (BMMA) and lately Bebaak Mahila Collective. The traditional Muslim organisations are also changing, although slowly, and the MWF must be credited for it. During my NCW tenure and later as co-chair, MWF, I had interacted with two chairs of the All India Personal Muslim Law Board (AIMPLB), Maulana Ali Miyan and Qazi Mujahidul Islam Qasmi. Both were keen to show the world the true face of Islam so far as gender was concerned. The gender-sensitive views of Shia cleric Maulana Kalbe Sadiq were well known. At the time, the secretary of the AIMPLB was Syed Qasim Rasul Ilyas, who shared our concern and belief. In the years that followed, I became member, Planning Commission, in which capacity I met leaders such as Maulana Fazlur Rahim Mujaddidi. I found them interested in revealing to the world the gendered face of Islam.
A few other things happened. A few women were made members of the AIMPLB. Male spaces opened for women. In 2007 in Lucknow I became the world’s first woman qazi. No one issued a fatwa against me for performing a nikah, other than a maulana from Firangi Mahal in Lucknow. And his word was soon discarded by his own colleagues.
Today the Supreme Court has become active on Muslim women’s rights and the matter is bound to come up soon after the summer break. The case of Shayara Bano gives it urgency. A few groups are planning to intervene in support of the uniform civil code. They represent what is regarded as the ‘liberal’ view. On the other side, the ulemas are preparing to counter them with Islamic arguments.
Time for a reality check
A few days ago, AIMPLB members met at Nadwatul Ulama in Lucknow where this matter was discussed. They arrived at conclusions which have been heard many times in the past. Any interference in Muslim personal law, they said, was against the fundamental right of freedom of religion which has been given to all citizens by the Constitution of India. They declared that Muslim women are satisfied with their rights under the Sharia and feel more protected than women of other faiths.
I am deeply concerned about the danger in all these formulations. Muslim clerics’ insistence on the same old arguments will not cut ice with the courts nor within very large sections of the community. Besides being self-centred, this argument is also fallacious vis-à-vis the Constitution. On the other side, the confrontational approach of the ‘secular’ groups in making a claim for state-based intervention might belittle the efforts the community is making towards self-democratisation.
The open fight between the two groups will turn hostile. It will provide masala to the electronic and social media, and stereotypical images of Muslim women and Muslim men will be flashed as the backdrop to sharply divided panels who will engage in mutual acrimony. At the same time, it might bring to the fore the fundamental fact that Muslims are not a monolithic group, they do not think in one voice, and the AIMPLB is less representative of Muslims than it imagines.
However, whichever side ‘wins’, the impact on internal democratisation and reform and on Muslim women who seek to negotiate their rights within the faith would be an unhappy one. Either the ulema will claim rights over all discourse, or the state would intervene to make things right. The agency of Muslim women and men who have been resisting certain practices would be undermined.
And the result? All the players will fall in the anti-Muslim Rashtriya Swayamsevak Sangh trap — the trap is evident in the daily dose of Muslim hate spewed by their leaders. Another fallout of this unwillingness of parties to engage with each others’ positions would be a crystallisation of gender stereotypes about Muslims. Lately a Member of Parliament, Sakshi Maharaj, has asked the judiciary to save Muslim women who are considered “pair ki jooti” (footwear) by Muslim men; worn when needed and discarded when not.
It is the Muslim awam, men and women, who will pay with their lives when trouble erupts. For close to 70 years we have been witness to leaders, Hindus and Muslims, taking advantage of polarisation to incite communal riots. In distant pockets, far away from places where such rhetoric is born, Muslims are killed, lynched, and burnt for reasons they do not understand. We read about places like Latehar in Jharkhand where one Mohd. Mazloom is strangled allegedly for being a cattle trader. Blood of both communities’ innocents will be shed. Instigators, both Hindu and Muslim, will not be harmed. This should be prevented at all costs.
A viable middle path
There is a middle path. What I am proposing is nothing new. It was stated in the NCW report of 2000. For this middle path, the AIMPLB has a key role because it has many followers. They should step off the old track and project before the world the true spirit of Islam which is avowedly most gender-friendly and gender-sensitive regardless of its heinous distortion by groups like the Islamic State. They should say that we Muslims have never practised what the Koran and the Prophet taught us.
In addition, without being defensive, they should show how over the years there has been an effort to liberalise the Sharia in light of the various schools of Fiqh (jurisprudence). They should say that women are free to use whichever school suits them best. For example Ahle Hadith completely forbids triple talaq. The ulemas should also acknowledge and respect the multiple forums for women such as the All India Shia Personal Law Board, the All India Muslim Women’s Personal Law Board. Newer Muslim women’s organisations such as the BMMA have developed their own Nikah Namas (marriage contracts). With all this internal churning, there is a movement towards pluralism and democratisation. The old establishment should declare that there is no impediment to women using these various fora. They should have the confidence to say that whether it is the AIMPLB or the Jamiatul Ulema, no one has the exclusive claim to speak for all Muslims.
Muslim organisations should also invoke empirical data such as the Census and National Family Health Survey to prove that in many matters, Muslim women are less victimised than women of other religions. For example, there is empirical data that more polygamy exists in religions other than Islam. That being the fact, it is evident that it is the ‘religious sanction’ given to it which causes the uproar. That sting should be taken away.
Some Muslim bodies and individuals are fighting to bring Muslim women closer to what was enjoined for them in Islam. Just days ago Telangana qazis stated that they have struck down case after case of “one-sided talaq”. This is closer to the core of Islam which gave women property rights hundreds of years ago, in a region where the practice was to bury the girl child at birth. From its very inception Islam created a revolution in giving the highest status to the ‘lowest’ creation.
A uniform civil code is the Directive Principle towards which the country had promised to move. But this is also the election promise of a government that believes in homogenisation rather than pluralism. My appeal to the Muslim leaders is to stop this imminent danger by speaking about their efforts at internal democratisation, and move much faster to bring the practice of Islam closer to its spirit. They can themselves ban triple talaq, polygamy and introduce other gender-friendly reform. By reforming itself in full public view, it will make the Supreme Court’s intervention infructuous, and thereby they would have done exactly what was intended when Islam was revealed.
(*Syeda S. Hameed is a former member of the Planning Commission.)