India's Supreme Court's alimony order settled a fundamental question—a Muslim woman is Indian first, Muslim later

Ibn Khaldun Bharati in The Print

The spectre of gender justice continues to haunt the identity politics of Indian Muslims. These visitations shall not cease till the fundamental issue of the status of women in Muslim society remains unattended and unresolved.

Let me illustrate this point by citing what happened in the cause célèbre, the 1985 Shah Bano case. A Muslim woman from Indore, Shah Bano Begum, was married to her cousin, Mohammed Ahmad Khan, in 1932. They had five children. Khan became a prosperous advocate and got into polygamy by marrying another cousin of theirs in 1946. In 1975, he threw Shah Bano out of their house. She approached the court to seek maintenance under Section 125 of the Criminal Procedure Code (CrPC). Khan, a successful advocate, was arguing his own case. Upon being questioned by the court why he wouldn’t pay maintenance to the woman who was very much his wife, he pronounced triple talaq on Shah Bano and washed his hands off her. The scandalous story that the talaq happened inside the courtroom and during the proceedings has remained relatively unknown for reasons which could only be guessed.

This anecdote brings into bold relief two important facets that have shaped Muslim politics in India. First, the helplessness of the Muslim woman against arbitrary and unilateral divorce under the sharia law before the Narendra Modi government made triple talaq a criminal offence in 2019; and second, the cavalier attitude and utter disregard for the dignity of the court, with which Khan inflicted triple talaq was reflective of class characteristic that the Muslim ruling class had cultivated over the centuries of their rule.

Whether it be the issue of triple talaq, maintenance to divorced women, or the controversy over hijab, the secular laws, constitutional morality, and progressive judicial pronouncements have been coming up against the wall of antiquated religious laws of Islam that the Muslim identitarians defend as the last bastion against assimilation intothe Indian culture. They have had the phobia of losing their distinction of foreign origin and wouldn’t mind using regressive religious laws to safeguard their separateness. Syed Shahabuddin, their most articulate spokesman had said, “Ours is not a communal fight. It only amounts to resisting the inexorable process of assimilation. We want to keep our religious identity at all costs.”

So, according to its own website, “All India Muslim Personal Law Board was established at a time when then Government of India was trying to subvert Shariah law applicable to Indian Muslims through parallel legislation. Adoption Bill had been tabled in the Parliament. Mr. H.R.Gokhle, then Union Law Minister had termed this Bill as the first step towards Uniform Civil Code.” It was in 1973.

Thus, the 10 July verdict of the Supreme Court, which says that a divorced Muslim woman, like all other women, has a right to maintenance from her ex-husband under Section 125 of CrPC, has settled some issues but, more importantly, has revived many more.

The verdict has settled that Section 125 of CrPC continues to be applicable with regard to divorced Muslim women; and, more importantly, that it remains unaffected by the Muslim Women (Protection of Rights on Divorce) Act 1986.

This is a reiteration of the judgment of the 5-judges bench of the Supreme Court in the Shah Bano case, which said that the Muslim Personal Law couldn’t come in the way of a divorced woman seeking maintenance under Section 125. This law was applicable to all Indians without any discrimination on the basis of religion. It also re-confirms another judgment of the Supreme Court in the Danial Latifi Case, 2001, which upheld the validity of 125 CrPC notwithstanding the Act of 1986 whose overt purport was to nullify the Supreme Court’s judgment in the Shah Bano case.

But beyond all these legal issues, the 10 July verdict has settled a fundamental ideological and constitutional question — that is, a Muslim woman, like all other men and women, is an Indian first and a Muslim later. Therefore, what is hers as an Indian can’t be taken away from her because of her religion. It is a re-statement of her right to equality and justice as envisaged under the Constitution.

It may be recalled that it was on the question of the Muslim-first identity that the Muslim leadership of the 1980s — which wasn’t ideologically much different either from the Muslim League of the 1940s or the identity minoritarians of the 2020s — waged a vicious communal campaign against the jurisdiction of the Supreme Court and the competence of its judges to adjudicate in the matter of Muslim Personal Law. Their objection was religious. They contended that the judges, not being Muslim themselves, lacked the primary qualification to adjudicate in the “sacred” law. Their rhetoric touched such a feverish pitch that a cabinet minister in the Rajiv Gandhi government, Ziaur Rahman Ansari, while speaking in Parliament, used casteist slurs against the judges. Such impunity they had. They eventually succeeded in bending the government to their will. A law was enacted to nullify the Supreme Court’s judgment.

In less than four decades of having won Pakistan, they had struck again. The spectacle of the government with the largest-ever majority, going down in abject capitulation before the dictates of the vote-bank politics, left the entire nation aghast and humiliated. It revived the fear of the return of the barbarians in a country that had just become independent after centuries of foreign rule. No historian can deny that the Shah Bano case was the inadvertent catalyst in the mainstreaming of Hindutva, the ideology of cultural nationalism and political Hinduism. Since this movement crystallised around the Ram Janmabhoomi-Babri Masjid case, the announcement for tabling a Bill in Parliament to overthrow the Supreme Court’s judgment in the Shah Bano case, and the unlocking of the disputed structure at Ayodhya, in early 1986, had such a stamp of choreographed synchronisation that it’s hard to dismiss it as a mere coincidence. It’s undeniable that the government was trying to effect a cynical balancing between the two communities.

What needs an answer, however, is whether the Muslim leadership were a party to this disingenuous deal. Did they give a tacit assent for the unlocking of the disputed structure, and the construction of Ram temple on the site, as a quid pro quo for the massive public victory that the government had handed them? If so, did they renege on the understanding by whipping up emotions and making a mountain out of the Babri mole?

Changed situation

All that was then. Now, no one is surprised at the stoic indifference with which the Muslim leadership has received the 10 July verdict, a reiteration of the 23 April 1985 verdict. The agitation against the earlier judgment had shaken the country, and the repercussions that followed caused a permanent bend in the course of Indian politics. But the situation has changed. Much water has flown in the Ganges since. The nation has become stronger, and its leadership can’t be browbeaten in the manner it was done in 1985-86. The old Muslim leadership has been discredited, and is slowly disappearing. The ubiquitous slogan, Islam-in-danger, has vanished from public discourse. And, though communal fault lines remain, and the ideological issues regarding nationalism are not yet settled, the Muslim community has evolved enough as to not unabashedly uphold regressive religious laws, and challenge a progressive judgment of the Supreme Court by brazenly questioning its authority.

What next?

Now that the Muslim Women (Protection Of Rights On Divorce) Act, 1986, has effectively, if not technically, been read down, shouldn’t it also be taken off the statute to right the wrong that was committed, under communal duress, against both the Muslim woman and the Indian polity? To begin with, this Act was more about politics and less about law. The Muslim communalists had won their first victory after winning Pakistan. They had put the Indian state in its place and taken a decisive step toward securing the state-within-state, which would confirm their rule over the Muslim community, defined by the juridical ghetto of the personal law.

Euphoric with victory, but lacking intellect and acumen, they failed to notice how the conscientious law minister, Ashok Sen, embedded the phraseology that subverted from within the stated purpose of the law. Section 3(a) says, “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” Thus, the amount for maintenance had to be paid “within the iddat period (three months)” and not only for the said period. The Muslim leadership had taken the community to war with the state to limit the maintenance only to three months. That was the crux of the matter. Their fanatic frenzy was vanquished by the cool conscience of superior wisdom.

Both the operation of this law and the later judgments that it didn’t supersede the CrPC 125 make it superfluous. It should be annulled, and so should be the mother of all such laws, the Muslim Personal Law (Shariat) Application Act, 1937, in fulfilment of the constitutional obligation for the Uniform Civil Code.

Article 44 of the Constitution lays the directive principle: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” In recent times, there have been some important developments, which make the situation conducive for bringing in the UCC.

Since the anti-CAA agitation of 2019-20, the Muslim community has been most effusive in the expression of love for the Constitution. Their public discourse, earlier conducted in religious idiom, is now full of constitutional jargon. Furthermore, the way the INDIA bloc parties made the Constitution the central debating point in the run-up to the recently concluded Lok Sabha election, clearly shows that there is a sincere eagerness to live by the Constitutional ideal and morality. Gender inequality, as institutionalised under the Muslim Personal Law, is clearly against constitutional morality, and therefore, it is hoped that the Muslim leadership and the liberal-secular parties would campaign for the UCC so that such evil practices as polygamy, unilateral and arbitrary divorce, denial of inheritance and property rights, etc., should be abolished in accordance with the moral standards of the Constitution.

The moral influence of the last 10 years of the Modi government has done the groundwork for the UCC. Now it is conceded that Muslim Personal Law is not the same as sharia and, more importantly, sharia is not the divine law. So, it’s not the domain of the ulema. Parliament can legislate and the courts can adjudicate in the matter. With this clarity, one of the emotional barriers to the integration of the Muslim community, the Muslim Personal Law, should be removed. This would be the corollary to the abrogation of Article 370 and precursor to the reform of Aligarh Muslim University.

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A Conversation between Two Indian Muslims

Brilliant Critique of Secularists - Javed Akhtar

A travesty of divorce: Triple talaq has nothing to do with religion

Tabish Khair in The Hindu



It is easy to blame political parties for the mess around the triple talaq issue. But before doing so, one has to put the matter in perspective: it is not political ‘manipulation’ that came first; triple talaq already existed. Can you really blame others for tossing stones into your house when you have a gaping hole in the roof?

True, only a minuscule percentage of Muslim men practised triple talaq, but still the number of afflicted women ran in the tens of thousands. There was no justification for it — legal, political or social. There wasn’t even a convincing theological argument in favour of it, as the Shias wisely accepted.

Rashly rejecting a constructive say in the matter (and, once again, failing to position itself on the progressive side of history), a section of the so-called Sunni leadership in India is now resorting to various other objections — some of which are justified and many of which are not — against the law that the Bharatiya Janata Party (BJP) government seeks to pass to stop triple talaq.

This unholy mix of objections has even confused Muslims who were against triple talaq, partly because of the general suspicion that Muslims bear towards the BJP. This suspicion is misplaced at times, but it is not groundless: if many Muslim leaders have failed to build bridges, many BJP politicians and (more often) their acolytes have also trumpeted their dislike for Muslims and everything Muslim. It has been a mutual failure of the sort that no nation can afford.


Need for a law

Despite the reasons for suspicion among Muslims, there is a pressing need to legislate on this issue. Triple talaq is not going to go away without a law against it. Perhaps this could have been a possibility if Sunni leaders had collaborated in delegitimising it publicly. But having chosen to miss that chance, they have left the government — BJP or not — with no option but to pass a law against triple talaq.

Legislation against triple talaq is not a law against divorce, as has been made out in some Muslim quarters. It is simply a law that ensures equal rights to the wife. Its purpose is to ensure that a husband does not abandon his wife outside a proper legal set-up, which may obtain some rights for the woman after years in a marriage. Of these rights, financial maintenance is central in a place like India, where often wives ‘do not work’ (read: wives work at home but without remuneration) or their earnings are appropriated by their husbands.

The greatest failure on the part of so-called Sunni leaders has been their inability to see triple talaq as part of a major social problem that has nothing to do with religion: wife abandonment. But viewing the matter through their own set of saffron-tinted glasses (as against the green-tinted ones of the Sunni leadership), the BJP too has failed to see triple talaq as a type of wife abandonment, which exists in other forms and other communities too. It is common knowledge that far more (Hindu) wives are abandoned by their Hindu husbands without a divorce than (Muslim) wives are ‘divorced’ with a summary triple talaq by their Muslim husbands.


Abandonment by the husband

Please note that wife abandonment is not the same as the decision by a married couple — Hindu, Muslim, or whatever — to live separately without suing for divorce, if this decision is mutual, legally negotiable by both parties, and without any undue pressure on either party. Wife abandonment involves a one-sided decision by the husband to live separately from the wife, without providing her with legal and mutually negotiated maintenance, and either refusing to divorce her, if she should so desires, or divorcing her arbitrarily and without equal legal recourse. Triple talaq is a form of such an arbitrary divorce, a travesty of divorce. But it is by no means the only form of wife abandonment — within or without Muslim communities.

If triple talaq is seen as a type of wife abandonment, the government could come up with a better law than the current proposal. The proposed law seems to actually recognise triple talaq as effecting a divorce, while penalising the husband with criminal sanctions. This is illogical and provides the wife with no real protection. Instead, triple talaq should be considered a type of wife abandonment, along with other versions in all communities. It should not be accepted as an effective divorce, but as abandonment by the husband and grounds for the wife to obtain a divorce in her favour. Its ‘use’ should be automatically converted into a case of legal divorce through the law courts, which can then implement the conditions of divorce in favour of the wife, with added penalties on the husband.

As men resort to triple talaq and other forms of wife abandonment only to shirk their financial responsibility, this would be a far more effective course than needless criminalisation.

No law is foolproof. Even laws against murder can be misused, and they do not eradicate the incidence of murder. One cannot demand a foolproof law or a non-punitive ‘law’ (as that would be no law in effect!), but one has every right to expect a comprehensive and fair law. Countries are built with such laws. And they can be written, if we take off our variously tinted glasses.

Two cheers for the Supreme Court

Gautam Bhatia in The Hindu

On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the... Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”.

Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.

The majority

Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional.

Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty.

By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely.

In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.

The dissent

This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death... if personal law is to be saved, I am sure... that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.”

At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.

Letting go of instant triple talaq

A. Faizur Rahman in The Hindu





There are enough legal devices within India’s dominant Hanafi school jurisprudence to invalidate it


About two months ago, the All India Muslim Personal Law Board (AIMPLB), through its counsel Kapil Sibal, informed the Supreme Court that it was considering reforms and the gradual giving up of instant talaq but wanted time for it. One of the “reforms” mentioned was a circular from the board asking all qazis to advise the husbands, while finalising the marriage contract, not to resort to instant divorce (talaq-e-bid’a) unless under compelling circumstances. The “compelling circumstances”, however, were not defined.

This is not the first time the AIMPLB has tried to illude Muslim women with the talk of reforms. In July 2004, in its executive committee meeting in Kanpur, the board was widely expected to outlaw instant talaq. But nothing came of it. Muslim women were let down once again in May 2005 when the board’s much-hyped ‘model nikahnama’ released in Bhopal turned out to be a damp squib. All that it contained against talaq-e-bid’a was a casual, non-binding advice to the groom in Section 5 (vii) saying: “Jahan tak mumkin ho ek waqt mein teen talaq dene se bachna (to the extent possible, avoid pronouncing three divorces in one sitting).” 

Reasons for rigidity

This sort of dilly-dallying on reforms renders the assurances given by the AIMPLB to the Constitution Bench unreliable. But what makes the board so unyielding? The rigidity stems from two concepts namely taqleed (uncritical acceptance of a school) and tamazzhub (idealisation of a school) wherein precedence is given to one legal school (mazhab) over the rest.

The four major schools of Sunni law — Hanafi, Maliki, Shafi’i and Hanbali — differ from one another on the basis of the interpretive methodology they adopt to derive law from the Koran and the Prophet’s sayings. And the belief that only the interpretation of their school is correct makes followers exalt the totality of juristic pronouncements of the school (the doctrine of tamazzhub). In taqleed, the adherents just follow their school uncritically even if they don’t elevate it above others.

A subdued emphasis on tamazzhub, and an overt expression of taqleed, is clearly visible in the 30-page “Note on arguments of Mr. Kapil Sibal” submitted to the Supreme Court wherein the issue of instant talaq is reduced to a question of whether or not it is a part of the Hanafi faith because more than 90% of Indian Muslims are Hanafis. 

Such an argument is unacceptable as it is based on the presumption that by mere accident of birth, Indian Muslims are forever obliged to follow the Hanafi mazhab. Nevertheless, the AIMPLB seems to have overlooked the fact that tamazzhub or taqleed cannot be easily invoked in the case of talaq-e-bid’a. In the aforementioned “Note”, the board admits that Imam Abu Hanifa (d.767) “did not record his own understanding of what the Prophet said in writing”; however, his two disciples — Imam Abu Yusuf (d. 798) and Imam Muhammad (d. 805) — immediately upon his death recorded in writing what Imam Abu Hanifa had said about triple talaq.

In other words, Hanafi theologians do not possess any direct statement from the founder-jurist of the Hanafi school that upholds the validity of talaq-e-bid’a.

Case for invalidation

If the definition of tamazzhub were to be stretched to also include the statements of Imam Abu Hanifa’s students, as is being done now by the AIMPLB, would it indicate the inconceivability of reforming the Muslim personal law in India? Certainly not. There are enough reasons and legal devices within Hanafi jurisprudence to outlaw instant talaq.

It can be shown that Imam Abu Hanifa’s own students did not indulge in blind taqleed or tamazzhub. They boldly differed with him on several issues. Imam Abu Yusuf’s Kitab al kharaj, that records the fatwas of Imam Abu Hanifa on financial matters, also contains Abu Yusuf’s opinions that are at odds with his teacher’s. In his research paper, “The Authenticity of Two 2nd /8th Century Hanafi Legal Texts: the Kitāb al-āthār and al-Muwatta' of Muhammad b. al-Hasan al-Shaybāni”, scholar Behnam Sadeghi states that he counted 27 cases in Kitāb al-āthār in which Imam Muhammad disagreed with Imam Abu Hanifa.

The ulama within the AIMPLB will only be following this liberal Hanafi tradition if they abandon, in the interest of Muslim women, juristic opinions that justify the validity of talaq-e-bid’a. After all, the “Note” admits that the nomenclature talaq-e-bid’a is not referred to in the Koran or the Hadees. It is “categorised and interpreted by Islamic scholars”.

It should not be difficult for the AIMPLB to give up anachronistic interpretations of earlier scholars especially when they contradict the Koran. Indeed, Hanafi jurists in the 10th century had abandoned, using exegetic rationales, even authoritative Prophetic hadeeses such as those that allowed women to join congregational prayers in mosques. The reasons cited were taghayyur al-zamaan (change of times) and fasaad al-zamaan (corruption of the times).

Hanafi jurists also resorted to legal stratagems called hiyal (sing. heela) to circumvent or overcome the rigidity of law. Heela is based on a doctrine called tahayyul under which a jurist, if circumstances so warrant, finds a way to legalise what is otherwise prohibited by law. Jurists also had recourse to takhayyur (selecting the most suitable among available legal opinions in a given school of law) and talfiq al mazaahib (derivation of rules from material of various schools of Islamic law).

These instruments were utilised to give effect to the Islamic legal maxim “laa yunkar taghayyur al-ahkaam bi taghayyur al-zamaan wa al-ahwaal”, which means “there is no denying that laws will change with the change of time and circumstances”.

Therefore, if the AIMPLB is really serious about reforms, there are enough legal devices within the Hanafi denominational faith system to invalidate instant triple talaq.

The way forward

For this to happen, the AIMPLB must be willing to reassess its raison d’être and model itself on Koranic universalism rather than legal conformism. It must be open to the idea of its certitudes being challenged, especially in the light of the fact that the founder of the Hanafi school, Imam Abu Hanifa, was himself a model of independent reasoning (ijtihad) and flexibility. He introduced the concept of istihsan, which helps jurists depart from the existing precedent by taking decisions different from those of similar cases, for reasons stronger than those obtained in the past cases.

Applying istihsan, and devices mentioned above, the AIMPLB can easily overhaul the legal methodology that validates talaq-e-bid’a and harmonise it with the intent of the Koran and Prophetic teachings. In pursuance of this, the board may immediately declare talaq-e-bid’a invalid as the first step towards reform. This, of course, entails a difficult shift from rigid tamazzhub and taqleed to adaptable ijtihad. But the benefits are huge.

It would open up Islam to modern interpretations within the framework of its original sources, and in the long run inculcate a sense of tolerance among Muslims for different points of view and equip them to respond positively to the requirements of a multicultural society like India. The question is: does AIMPLB realise the momentousness of giving up its obsessive denominationalism?

The courts and matters of faith

Peter Ronald deSouza in The Hindu


We need to make a distinction between matters of conscience and matters of faith


There is an uncanny similarity of argument between the Rashtriya Swayamsevak Sangh (RSS) and the All India Muslim Personal Law Board (AIMPLB) on controversies that have to do with belief. This is illustrated best in their respective positions on the Ram Setu and the triple talaq debates.

In 2005, on the Ram Setu issue, the RSS stated that their opposition to the UPA government’s plan to dredge a canal between Rameswaram, off the coast of Tamil Nadu, and the islands of Mannar, near Sri Lanka, was a “matter of faith and hence required no substantiation”.

Twelve years later the counsel for the AIMPLB has offered a similar argument in the Supreme Court when making his client’s case on the practice of triple talaq. A Constitution Bench of five justices is to decide on whether the practice of divorce by triple talaq is consistent with the protections guaranteed to individuals by the Indian Constitution. In opposition to pleas that the practice be considered unconstitutional, the AIMPLB counsel stated that triple talaq “is a matter of faith. Hence there is no question of constitutional morality and equity”.

This argument that matters of faith be given special status needs to be assessed. Why should matters of faith be given immunity from scrutiny?

Three responses can be offered to this question. Let me, on grounds of brevity, refer to them as (i) the special status of faith, (ii) the issue of validity, and (iii) ethical codes in modern democracies.

Special status of faith

At the outset we must acknowledge that faith, as religious belief, must have special status in any constitutional order. It constitutes the core of an individual’s sense of self and is the basis of a believer’s conscience.

Belief is a matter of personal choice and no external authority, whether state, cultural community, or religious congregation, can tell an individual what her beliefs should be. To do so is to violate the individual’s freedom of conscience guaranteed by most constitutional systems and human rights covenants. But on matters of faith, an important distinction has to be made.

All ‘matters of conscience’ are ‘matters of faith’, but not all ‘matters of faith’ are ‘matters of conscience’. It is only matters of conscience that are protected by the freedom-granting provisions of the Constitution. Matters of conscience are individual-centric. They have an ethical core that guides the choices that an individual makes.
They endow the world with meaning and give the individual purpose. In contrast, the ‘matters of faith’ which the RSS and the AIMPLB are referring to — while they may look similar to ‘matters of conscience’ — are not so for they are group, not individual, centric. They have a component that is based on evidence, whether this is textual, historical, or empirical. In other words, the belief is contingent on the evidence. For example it would take the following form: ‘we believe X because it is said so in our holy book’.

It is the ‘because of’ component that demands analytical and scientific scrutiny of the matters of faith. Does the holy book actually say so? Did Lord Ram really build the Setu?

Further, when matters of faith have harmful social consequences, they must be subject to scrutiny since the Constitution guarantees the individual protection from harm.

This is the basis of all social reform in our history.

When the AIMPLB says that triple talaq has evolved in the last 1400 years, it has inadvertently conceded that the practice is not cast in stone. Let the court’s intervention be part of that evolution.

The issue of validity

The many advances in linguistics, cultural anthropology, gender studies and, of course, the natural sciences can make the probing of the ‘because of’ component of the belief very exciting. For example, a textual analysis of a holy book using a study of old and new grammar, or the etymology of the word, or its placement in a sentence are all ways of arriving at the meaning of the statement.

Textual analysis has advanced considerably and hence is available to determine the validity of the interpretation being offered by scriptural authority. The many schools of Islamic jurisprudence are testimony to this plurality of interpretations.

To that can be added the modern tools of linguistic analysis, gender studies, human rights jurisprudence, and cultural anthropology. The validity of triple talaq must be subject to textual interpretation. Similarly with the Ram Setu claim. It too must be scrutinised by modern science.

Ethical codes in democracies

The most difficult issue in this debate is how to respond to the situation where, after scrutiny, the matter of faith is found to be valid but considered by many in need of change such that it conforms to the contemporary ethics of human rights.

When the counsel for the AIMPLB says that there is “no question of constitutional morality and equity” in matters of faith, he is building a wall, a fashion these days, behind which the orthodox will police their community. Such a wall must not be built. It has no place in a constitutional democracy.

Fatah ka Fatwa - Episode 12 on Triple Talaq

Cow slaughter and Halala Friday Night with Barrister Hamid Bashani 

Fateh ka Fatwa - Episode 4

On Triple Talaq

Tarek Fatah vs Rabbani

In Urdu.

Abolish personal laws: Patriarchy remains deaf to the Quran’s call for justice, equality and compassion

  Sadia Dehlvi in Times Of India

Whenever Muslim women approach the judiciary in a quest for justice, Muslim orthodoxy rallies against the abolition of Personal Laws. Their rhetoric of ‘identity under attack’ resumes. Clearly, Indian Muslims have moved beyond the politics of identity; choosing to express themselves through contributions to science, architecture, law, medicine, film, theatre, music, literature and other fields.

Debates over the validity of pronouncing talaq, divorce, three times in one go or over three months offer no solutions. Both methods find permissibility in schools of Islamic fiqh, jurisprudence. Unilateral divorce allows men to commit grave injustices by stripping women of honour and dignity, inalienable rights both in Islam and the Indian Constitution. It is unwise to expect reform from the community whose religious leaders have historically treated women as subjects and not equals.

Islamic law is a human endeavour that evolved over centuries with multiple schools holding diverse opinion. The principles of Islamic jurisprudence are weighing the benefit and harm of legal rulings in societies that jurists live in. Barring the foundational five pillars of Islam, nothing in Islamic law is definitive. Salafis and Wahhabis reject classical Islamic jurisprudence and philosophy. Their myopic literalist interpretations of Islam cause gross violations of human rights.

Sharia has always been flexible in adapting to changing times and situations. Umar, the second Caliph of Islam and companion of Prophet Muhammad, dropped sharia punishments for theft when famine struck Arabia. He realised people were stealing to survive. The eighth century Imam Shafie, founder of Shafie jurisprudence, changed many of his fatwas on migrating from Iraq to Egypt. Had sharia lacked movement, Islam would not thrive in India.

Islam is dynamic, understood and practised in a variety of ways in different cultures. Patriarchy remains deaf to the Quran’s call for equality, justice and compassion that extends to all humanity. Excluding women from leadership, patriarchy is blind to the Quran celebrating the wise consultative rule of Queen Sheba and her diplomatic engagement with Solomon.

Patriarchy fails to recognise the Quran honouring women as recipients of wahy, Divine Revelation; as experienced by Moses’s mother and Mariam, or Mary. Some famous early and medieval commentators of the Quran, such as Imam Hajar Asqalani and Imam Qurtubi, include Mary amongst the prophets.

The Islam of Prophet Muhammad disappeared within 40 years of his death with powerful and oppressive patriarchal tribes regaining power. The poor, women and slaves embraced by Islam were again marginalised. Islam’s paradigm shift in empowering women and slaves had created great difficulties for the Prophet. He sought political counsel from women, welcomed them in his mosque; encouraged women like Haqibatul Arab to deliver khutbahs, sermons. He appointed Umm Waraqa the Imam of her mosque, and sent a muezzin, one calling to prayer, from Medina to her village.

Some Islamic scholars, including the famous 9th century Imam Tabari, drew upon this precedent to proclaim it lawful for women to lead mixed gender prayers. American Muslim feminists are reclaiming this tradition despite the controversies it evokes.

Islam abrogated the concept of God as Father, saying, ‘Nothing is like Allah’. God transcends gender and is best understood as Noor, Compassionating and Illuminating Guidance. ‘He’, is used in the Quran and its translations because Arabic grammar is gender specific with no pronoun for the neuter gender. In most languages including Arabic, Persian and Urdu, the feminine is applied for ‘Zaat e Elahiya’, Divine Essence.

The word rahm, womb, is derived from God’s primary attributes Rahman and Rahim, Mercy and Compassion. Prophet Muhammad often likened God to a Mother who forgives her children. Traditional Arab poets addressed God in the feminine, literature that would probably be termed blasphemous today.

The Quran advocates equitable treatment of slaves and encourages freeing them, but does not specifically ban slavery. Responding to prevailing 7th century Arabian evils, Quran forbade the inheriting of women, female infanticide and abuse of slaves. Muslims across the world welcomed the abolition of slavery, believing it to be in accordance with Quranic guidance.

Islamic scholars have responded creatively with Quranic verses sanctioning armed struggles. Invoking the principle of ‘asbab e nuzul’, cause of revelation, they rightly limit this relevance to ‘just wars’ against oppression fought by the first Muslims. Instead of similar creative engagement with regard to oppressive canonised laws for women, patriarchy maintains the status quo. Women’s rights can no longer be defined by political Islam or Arab culture and histories.

In matters of inheritance and nafaqa, maintenance, Quran guarantees a minimum financial protection for women but does not cap the maximum. Offering more financial and emotional security to women can never conflict with Islam. Prophet Muhammad famously said, ‘None of you believes till you love for the other what you love for yourselves.’

Sharia law denies the right of punishment to individuals, leaving this responsibility to the state. Sharia endorses responsible citizenry, making it mandatory for Muslims to comply with laws of the lands they inhabit.

Traditionally, women pilgrims travelling to Mecca required to be accompanied by a mahram, husband or other male relatives with whom marriage is forbidden. Negotiating modern challenges, many Islamic scholars have ruled it permissible for women to travel alone. They declare the state as mahram, for in ensuring security, the laws of the state replace the role of the ‘protective bodies’. This principle should extend to the Indian state.

Freedom from triple talaq: Goa shows the way

S A Aiyar in the Times of India

A step forward in gender justice is the Supreme Court’s admission of the petition of a Muslim woman, Shayara Bano, pleading that polygamy and oral triple talaq —saying talaq thrice in succession — violate fundamental human rights, and hence are unconstitutional. Indian politics has always sabotaged gender justice for Muslim women. But the Supreme Court does not have to woo Muslim vote banks, and can be objective.

The mullahs are livid, of course. Kamal Farooqi of the All India Muslim Personal Law Board says, “This will mean direct interference of the government in religious affairs as Sharia religious law is based on the Quran and Hadith, and its jurisprudence is strong as far as Islam is concerned. It will be against the constitutional right to religious freedom.”

Sorry, but the Constitution makes it very clear that freedom of religion does not override fundamental rights, and does not bar reforms of traditional religious practices. Sharia law may permit the stoning to death of a woman for adultery, but our secular laws ban that. Sharia law may call for the amputation of fingers or hand of a thief, but not our secular laws. Sharia law may prohibit interest on loans, but Muslims giving or taking loans are subject to laws on interest payments.

Now, religious minorities have been allowed to continue with traditional personal laws on matters like marriage and inheritance. Jawaharlal Nehru had the courage to amend Hindu personal law, outlawing polygamy and providing female rights to inherit property, divorce, and remarry. Alas, he funked similar reforms for Muslims, leaving Muslim women as oppressed and subjugated as ever.

A Directive Principle of the Constitution says the state shall endeavour to secure for citizens a uniform civil code throughout India. This has never been implemented. Muslim conservatives are dead opposed. Religious objections apart, they say a civil code will become a form of Hindu oppression.

Some enlightened Muslims have urged modernization of Islamic personal law. But secular political parties know that conservatives control the Muslim vote, and woo them by saying Muslims themselves must take the initiative on reforms. In effect, secular parties have thrown Muslim women to the wolves in search of votes.

The BJP is the only party backing a common civil code, but its strong anti-Muslim instincts lead one to suspect it is keener on bashing Muslims than ending gender oppression.

Right fight: Politicians who say Muslims don’t want personal law reforms are thinking only of Muslim men

Oral triple talaq permits a man to utter three times that he is divorcing his wife, and she is at the mercy of his whims. In our travels through India, my late wife Shahnaz often spoke to Muslim women, who invariably said that one of the greatest injustices they faced was the ever-present threat of triple talaq. The same fears are expressed by Shayara Bano in her Supreme Court petition. “They (women) have their hands tied while the guillotine of divorce dangles perpetually ready to drop at the whims of their husbands who enjoy undisputed power.”

Women constitute half the Muslim population, but have no voice because of male subjugation. Politicians who say Muslims don’t want to reform personal laws are thinking only of male Muslims, not female Muslims. When oppressive Muslim laws keep women under the thumbs of men, they cannot express their true wants and have to follow male orders. Conservative Muslims have historically discouraged female education, keeping women disempowered and unable to strike out on their own.

If a referendum with secret voting is held among Muslim women, they will surely opt to abolish triple talaq and polygamy. But they are not given the chance. So they remain disempowered and subjugated,with the shameful complicity of secular parties claiming to represent universal rights.

The 2012 Committee on the Status of Women has made gender recommendations covering all religions. It seeks to ban triple talaq and polygamy. It seeks stronger provisions for maintenance payments to women and children (these can currently be cut off if a divorcee is “unchaste”). The Supreme Court should heed the report.

Forget the propaganda that a common civil code will mean Hindu oppression. Goa is the only state that disallows personal laws of all religions. It has a uniform civil code — with a few exceptions not relevant to Muslims — based on Portuguese colonial laws. Goa’s mullahs sought to extend Muslim personal law to Goa after liberation from Portuguese rule, but happily were foiled by the Goa Muslim Women’s Associations and Muslim youth activists. Muslims account for 8.3% of Goa’s population, and are a prosperous community. The civil code has not oppressed Goan Muslims or forcibly Hinduised them.

Any fear that a uniform civil code will mean Hindu oppression of Muslims will be exposed as groundless if India simply follows Goa’s example. The Supreme Court should point all political parties in Goa’s direction.