IT IS CLOSE to noon and the sun is at full blast in Deoband. No additional heat is required, though, to warm up a discussion at this premier Islamic educational institution whose influence spans India and reaches far across the Muslim world. The issue of divorce through triple talaq is enough. “The way [the issue] has been framed makes it look like a ferocious fight between a dog and a cat that has been dragged out by its neck,” says an otherwise calm faculty member of Darul Uloom Deoband. Seated not very far from the naudara, its nine-gate quadrangle at the core of the institution where advanced classes in Islamic jurisprudence have been held almost continuously since the 1870s, the teacher only echoes what the majority of the community likely feels: any judicial interpretation of or order on talaq will amount to an interference in the religious practices of Muslims in India.
Much of the contemporary temper in the Muslim community has to do with the clutch of cases being heard by the Supreme Court on divorce as practised under Muslim Personal Law. The issue has never been out of public sight since 1985. That year, the apex court upheld the claims of Shah Bano, a 62-year-old Muslim woman who sought maintenance from her husband who had thrown her out of their home. During the pendency of the case, he issued an irrevocable divorce as permitted under Muslim Personal Law. The judgment awarded her alimony, but subsequent legislation by Parliament nullified the court’s decision, which led to a controversy that has not died since then.
Matters have been heating up since October last year when the Supreme Court ordered the registration of a Public Interest Litigation (PIL) on Muslim women’s rights. Since then, a slew of appeals have reached the court on the issue, the two most prominent petitioners being Ishrat Jahan from West Bengal, who filed an appeal to the court this August, and Shayara Bano, a resident of Kashipur. Both women have sought justice after they were summarily handed a triple talaq by their husbands.
Since then, the All India Muslim Personal Law Board (AIMPLB)—behind which almost all Muslim religious authorities have united—has filed an affidavit in the Supreme Court, impleading itself in the case. The Union Government has argued that triple talaq is not an integral part of Muslim religious practice. In an affidavit, the Centre has asked the court to do away with triple talaq.
This is perhaps the first time since 1985 when three of the four parties are possibly on the same page on the issue. The women appellants and the Government are on the same side. The Judiciary has for a long time addressed the issue with care and sympathy. Ranged against the appellants and Centre are the AIMPLB and Muslim religious leaders.
One such influential voice is that of Maulana Abul Qasim Nomani, the Mohtamim or Vice Chancellor of Darul Uloom Deoband. Speaking to Open at his office at the seminary, Nomani says, “What is wrong and what is right in these matters [of divorce etcetera] is to be determined by religious leaders. When it comes to religious matters, courts have no business to interfere. These issues are not in the court’s domain.”
To further complicate matters, Muslim religious leaders don’t see the issues of triple talaq, Uniform Civil Code (UCC) and the Law Commission’s effort to solicit opinions on the UCC as distinct matters. Article 44 of the Constitution says the state will endeavour to secure a UCC that will do away with personal laws of religious and other communities in India and replace them with a uniform set of laws. For the clerics, these are not legal issues for judicial determination but are religious ones that are now being handled in a politicised way by the BJP-led Government.
In reality, of course, these are separate issues. For example, the court is hearing a specific set of divorce petitions from Muslim women. It has in the past spoken about a UCC, but only in terms of what are called obiter dicta or observations that do not form a part of its decisions on any matter. In the last two years alone, two PILs on the subject were dismissed by the higher Judiciary. The Delhi High Court dismissed one such petition asking for the time-bound adoption of a UCC in 2014. Last year, a bench headed by the Chief Justice of India refused to issue any directions to the Government on the subject. That effectively ended the judicial option to get a UCC.
On its part, at various times, the BJP has said that it is in favour of a UCC. But the present Government has taken no step in that direction. The Law Commission, which is an independent body which only has the power to recommend the enactment and repeal of laws, has issued a UCC questionnaire. This is meant to draw in the widest possible opinions on the matter. This is the usual procedure adopted by the Commission in most such matters.
None of this cuts ice with Muslim leaders, who believe the issues are linked. “All Muslim organisations, through the AIMPLB are working towards building a consensus on the matter. We will fight for our rights peacefully even as we think that the court will not give a judgment that will harm the community’s interests. But having said that, I add that the question does not arise that we will accept an adverse judgment. We will agitate,” says Nomani. He is quick to add a historical bit on this contemporary issue: “We fought against the British for our religion. If someone tries to take away our rights, we will not bend to that. But what form the agitation will take, I cannot say that beforehand. We will take a decision when we need to.”
When it comes to religious matters, courts have no business to interfere. These issues are not in the court’s domain
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What makes it a vexed issue is the lack of common ground for the building of a consensus. Between the aggrieved women and clerical arguments about shielding their religious identity, there appears to be no room for compromise based on Constitutional principles that govern a modern nation-state. Even reformist voices get drowned in the din.
Maulana Ghulam Mohammad Vastanvi, a cleric from Western India, is one such voice. In a guarded discussion with Open, he concedes that the divorce issue is one of justice, but also says it is complicated because it involves the religious identity of Muslims. “The triple talaq issue needs to be sorted out for sure. But it is for the learned members and scholars of the Muslim community to sort it out. They need to sit together and think on the issue. Instead of the Government or the courts interfering in the matter, it should be the community that should initiate reforms,” he says.
Vastanvi, who was once the Mohtamim of the Deoband seminary, was removed under controversial circumstances, with critics arguing that his (rather limited) efforts at reform were not acceptable. Such is the power of orthodoxy that even he today states that divorce and other personal law matters are religious issues and are thus inseparable from Islamic thinking.“You have seen the fate of the Shah Bano case. Nothing came out of it. If triple talaq is overruled by the court, then it will not be in the favour of the country,” he says.
THESE BATTLE LINES—constitutional, political and judicial—have been drawn almost since Independence. Technically, the Constitution gives a wide ambit for religious freedom as a fundamental right under Article 25. But this liberty is not absolute and is subject to various restrictions. The Article is so worded that nothing prevents the state from making any law to regulate or restrict any financial, political or secular activity which may be associated with religious practice.
Are divorce and associated laws secular matters?
Open sought the opinion of a number of scholars on the subject. Most refused to comment on the matter, given its ‘sensitive’ nature. “It would have been better from a political point of view for the community to agree and reform divorce law,” says a scholar, speaking on the condition of anonymity, “That would have helped women who are left alone to fend for themselves. At the same time, it would have weakened the charge that the community is unwilling to change and remains obdurate on most matters. A modernised personal law is the need of the times and you cannot ignore it.”
In response to such arguments, Nomani says, “Injustice against women is just a paper issue. Look at the population of Muslims. How many women are there? How many of them are married? How many have marital trouble? How many are undergoing a talaq? And how many are undergoing an irrevocable triple talaq? And how many of these women are destitute? You can see for yourself. We try to educate people through reform committees and local religious leaders that is a wrong thing to resort to. We cannot stop triple talaq if someone uses it, but it is incorrect to say that we are not aware of the problem.”
These are deep conflicts and will remain so unless the community accepts the necessity of change. Since 1947, the Directive Principle that promises a UCC—Article 44—has remained a dead letter. During the proceedings of the Constituent Assembly, Muslim members of the Assembly—notably Mohamad Ismail Sahib, Naziruddin Ahmad, B Pocker Sahib Bahadur— presented the same arguments that are in vogue today and contested the principle tooth-and-nail. The main arguments, that a UCC would be tyrannical and would violate the religious rights of Muslims, were rebutted in full by KM Munshi, BR Ambedkar and Alladi Krishnaswamy Aiyar. Ambedkar’s reply remains instructive: “We have a uniform and complete Criminal Code operating throughout the country, which is contained in the Penal Code and the Criminal Procedure Code. We have the Law of Transfer of Property, which deals with property relations and which is operative throughout the country. Then there are the Negotiable Instruments Acts: and I can cite innumerable enactments which would prove that this country has practically a Civil Code, uniform in its content and applicable to the whole of the country. The only province the Civil Law has not been able to invade so far is Marriage and Succession. It is this little corner which we have not been able to invade so far and it is the intention of those who desire to have Article 35 as part of the Constitution to bring about that change. Therefore, the argument whether we should attempt such a thing seems to me somewhat misplaced for the simple reason that we have, as a matter of fact, covered the whole lot of the field which is covered by a uniform Civil Code in this country. It is therefore too late now to ask the question whether we could do it. As I say, we have already done it.”
No government in India—Congress, BJP, or any other— has ever sought to impose a UCC on the Muslim community. The current legal challenges, too, do not involve such a code. But with the passage of time, the founders of the country expected a consensus to be built on the subject. Instead, attitudes have hardened. Politically, it is this hardening of attitudes that has hurt the interests of Indian Muslims, particularly Muslim women.