The Hindu : Opinion / News Analysis : Muslim Personal Law Board: a paragon of intransigence

Online edition of India's National Newspaper
Wednesday, May 11, 2005

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Opinion - News Analysis

Muslim Personal Law Board: a paragon of intransigence

A. Faizur Rahman

The most damaging part of the modelnikahnamais the tacit approval of triple talaq in one sitting. Further, the stand that the husband alone enjoys an absolute right to divorce is not just untenable but most unfair and wrong as it goes against the principles of justice and equity — and Islam is founded on these principles. Unless the AIMPLB sheds its medieval attitude, Muslim women will continue to suffer.

IT WAS in July 2004, soon after its Executive Committee meeting in Kanpur, that the All-India Muslim Personal Law Board came in for severe condemnation for refusing to outlaw triple talaq. It was hoped that, after such criticism, the Board would show some introspective courage to recommend its abolition. Unfortunately, it has once again failed Muslim women. The much-hyped model nikahnama or marriage contract released at Bhopal on May 1, 2005 has turned out to be a damp squib. In fact, it cannot even be called a `contract' in a legal sense as there is nothing in the document to safeguard the rights of those who opt for it and make it legally binding on them. Apart from requesting the personal details of the bride, groom, witnesses and so on, the nikahnama simply implores the Qazi performing the nikah and the marrying parties to follow a set of guidelines that are nothing but mere repetitions of standard Islamic teachings found in the Quran and the sayings of the Prophet.

For example, the Qazi is asked to ensure that the bride and the groom do not fall under the prohibited degrees of marriage on the grounds of nasab (consanguinity), raza'ath (fosterage), and musaharath (affinity). These injunctions have been directly taken from verses 22-24 of chapter 4 of the Quran. Although it has to be conceded that there is nothing wrong in ensuring that the aforementioned conditions are met, what is surprising is the Board's wisdom behind prioritising this issue over more important issues such as triple talaq, particularly when there is no record of violations with regard to the law of prohibited degrees of marriage.

Nevertheless, the most damaging part of the nikahnama, which amounts to a tacit approval of triple talaq in one sitting, is given in Section 5 (vii). It advises the groom saying: "Jahan tak mumkin ho ek waqt mein 3 talaq dene se bachna," meaning: "To the extent possible avoid pronouncing three talaqs at a time.'' The question is: why is the groom not instructed totally to avoid triple talaq?

Interestingly, the model nikahnama has this to say about nikah: "Nikah Rasullah aur Ambiya ki sunnath hai. Isliye zaroori hai ke ise masnoon tareeqe par anjaam diyajaaye, aur tamaam khilaaf-e-shara umoor se bachajaay."' This translates as: "Nikah is the tradition of the Prophet and all prophets. Therefore, it is important that it be performed as per the Sunnah, and all acts that are anti-Shariah be eschewed." What has to be noted here is that the Board is quick to moralise in the case of nikah that all anti-Shariah methods have to be eschewed and only the Sunnah of the Prophet has to be adopted. But when it comes to the issue of talaq, the phraseology used for nikah is carefully avoided to legitimise triple talaq.

Another aspect of Muslim personal law that has been left conspicuously untouched by the AIMPLB is the absolute right given to the husband to effect an irrevocable talaq without the intervention of any judicial authority, whereas the wife is required to go through a Qazi to seek khula (dissolution of her marriage). When asked about this, the AIMPLB secretary, Abdul Rahim Quraishi, explained that since the wife does not have to bear the financial burden of divorce, she cannot have the right to break the marriage contract (report in The Hindu, page 12, May 2, 2005). There is no theological or legal basis for this sophistic reasoning as there is not a single statement in any authentic Islamic text to support this view. According to the Quran, both husband and wife have similar rights by virtue of which they are equal partners in the marriage contract, and therefore neither of them can break the contract unilaterally without being subjected to arbitration proceedings.

This is because divorce being a matter of law affecting the rights of both parties, it cannot be left to the parties themselves to decide. To ensure that no rights have been violated by either party, the intervention of a judge or arbiter becomes absolutely essential. This is the procedure followed in Pakistan under the Muslim Family Law Ordinance of 1961.

Therefore, the stand taken by the AIMPLB that the husband alone enjoys an absolute right to divorce is not just untenable but most unfair and wrong as it goes against the principles of justice and equity — and Islam is founded on these principles. The only conclusion that can be drawn from the intransigence of the Board is that it wants to give precedence to the Hanafi law over the Quran and the Prophetic sayings. It must be understood that bringing Muslim personal law in conformity with the authentic teachings of Islam does not amount to changing the Shariah and therefore unless the AIMPLB sheds its medieval attitude, Muslim women will continue to suffer.

(The writer is an executive committee member of Harmony India, Chennai, an organisation dedicated to communal amity and secularism.)

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