By Sona Khan
(The writer is an advocate of the Supreme Court)
Posted online: Tuesday, August 24, 2004 at 1147 hours IST
Updated: Wednesday, August 25, 2004 at 0442 hours IST
The lives of Muslim women cannot be governed by archaic practices like triple talaq. Muslim women should be governed by laws that treat them as equal citizens of democratic India
It will be no consolation for Saddiqunissa, from a village near Sitapur, UP, to learn that a very ill Kiran, 27 years old and a mother of three sons, was carried in her father’s arms to the Kakardooma court in New Delhi in a desperate attempt to pursue her application to seeking maintenance from her indifferent husband. So far there have only been adjournments. Like Kiran, millions of poor women are suffering the indignities of their husband’s neglect in a country where cultural pressures lead to parents marrying their daughters off either as part of dharma or sunna (farz).
In Saddiqunissa’s case, Justice I.M. Quddusi of the Lucknow Bench of the High Court of Allahabad has rightly returned the maintenance application to the lower court to examine its merits, as well as to enquire and adjudicate accordingly whether or not the husband has followed correct talaq procedures. It appears that when Saddiqunissa filed an application for maintenance from her estranged husband, he divorced her and the lower court dismissed her application. She then went to the high court. If so, the dismissal of the maintenance application without relief being provided is illegal.
After the judgment in Danial Lattifi & another (myself) Vs Union of India, challenging the constitutional validity of Muslim Women (Protection of Rights on Divorce) Act of 1986, the Supreme Court has given a Muslim woman the right to receive maintenance for life from her husband even on divorce or until she re-marries. Therefore the question of maintenance not being granted in this particular case cannot even arise.
In order to prevent the destitution and vagrancy that results from triple talaq, the implementation of the law pronounced is not optional but mandatory. However, the Muslim leadership, fully aware of the implications of this judgment, has taken no steps to create general awareness of it in backward areas.
In the practice of Muslim law in India, the unilateral right of the Muslim husband to dissolve the contract of marriage is recognised. But in order to do away with inequalities, various judgments are bringing in an element of equity. As per the ruling of the Aurangabad Bench of the Bombay High Court, a talaq must be confirmed by the court in order to be valid, thereby taking away the instantaneous character from the tradition of triple talaq. This is applicable all over the country unless the high court of another state either disagrees with the decision or the Supreme Court sets the judgment aside.
In the matter of Saddiqunissa, the high court rightly pointed out the necessary procedure for dissolving marriage. It also pointed out that talaq could not be given by the husband in one instance and only comes into force after a certain time (three months and a gap of one month in each pronouncement) which is meant for reconciliation and arbitration by friends and relatives. Finally, talaq has to be confirmed by a court, which has to hold that the marriage was dissolved on valid grounds. Only then would talaq become final.
The case of Nagma Bibi of Orissa is important here. She was divorced by her husband in a drunken state. Next morning he realised he had committed a terrible mistake and wanted his wife back. She also wanted to go back but community leaders are preventing them from doing so. They have forcibly sent her with her three children to her father’s house. It is being suggested that Nagma Bibi will have to marry someone else and only upon being divorced by that person can she re-marry her husband. This practice is called Halala.
Triple talaq and Halala are not prescribed in Quran, the main source of Shariat and Muslim law. These are social evils and not Islamic practices and only continue to be propagated because of the ignorance of community leaders as well as the community as a whole.
The maintenance legislation passed in 2001 by Parliament does not include its benefits for Muslim women. The legislation needs to be amended to include Muslim women, irrespective of political implications. This is legally possible after the above-mentioned Supreme Court judgment passed in September 2001, challenging the Muslim Women (Protection of Rights on Divorce) Act of 1986. Destitution, vagrancy, trafficking of neglected women does not vary with region, religion, caste or creed. The response to the basic right to life based on religion, with which the issue of maintenance of woman is linked, is unconstitutional and unethical. By suitably amending the maintenance legislation, we will preserve our diversity and pluralism. Equality before law and equal protection of law guaranteed to all citizens by the Constitution would become a reality in the area of rights of maintenance of Indian women, who are dependent on their families for survival in the absence of any state social security. (Source: Indian Express)
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Triple talaq row gets bloody
Express News Service, Posted online: Thursday, August 26, 2004 at 1204 hours IST, Updated: Friday, August 27, 2004 at 0514 hours IST
Mumbai, August 26: Scribe of Hindi Mahanagar says Urdu Times editor orchestrated attack.
The split in the Muslim community over the issue of triple talaq—a traditional method of divorce—has become a stab wound.
Writer-journalist Sajid Rashid (48), editor of Hindi Mahanagar, was stabbed twice by two unidentified men near his office in Pandurang Building, Mahim, on Tuesday night.
Bleeding profusely, he was rushed to KEM Hospital, Parel, where he is recuperating after receiving more than 30 stitches.
The police say that at least one of the assailants has been identified and is likely to be arrested soon.
Rashid has alleged the assault was the result of a series of articles the daily Urdu Times has carried over the past few months, which ‘‘instigated’’ Muslims against Rashid over his criticism of triple talaq and other issues.
‘‘As I came down from my office and was about to start my bike, a bearded, well-built man came up to me, asking: ‘Tera naam Sajid hai? Tum Quran ki toheen karta hai (Are you Sajid? You insult the holy Quran).’ Then he pushed me while his companion stabbed me twice in the back.’’
In his first information report, Rashid has accused Sayeed Ahmed, the owner-editor of Urdu Times, of masterminding the attack. Ahmed has dismissed the allegations.
‘‘He has accused me because of a personal grudge. I am ready to face any investigation,’’ said Ahmed. ‘‘He seems to have stage-managed the attack to divert attention from the exposes we were carrying against him.’’
Rashid, as head of the Maharashtra Urdu Akademy, held a seminar on the late Urdu scholar Krishan Chander on June 12 and 13. At the seminar, Ali Ahmed Fatmi, an Allahabad-based scholar, allegedly called the Quran ‘‘propaganda’’.
On July 14, Urdu Times condemned Fatmi for ‘‘anti-Quran’’ utterances and Rashid because he ‘‘sided with the scholar’’.
‘‘It’s the police commissioner’s incompetence,’’ said Rashid. ‘‘He had offered me security which I refused because we wanted him to take action against Urdu Times. He didn’t do anything.’’
Countdown to attack
June 12: Rashid organises a seminar where a scholar makes ‘anti-Quran’ statements
July 2: Rashid, Javed Akhtar and other members of Muslims for Secular Democracy (MSD) ask the All India Muslim Personal Law Board to discuss triple talaq
Urdu Times carries a series of articles against Rashid.
MSD files a complaint with Police Commissioner A N Roy against Urdu Times
Between August 9 and 12, Rashid is stalked near J J Hospital. He files a complaint at Dongri police station on August 16
August 24: Rashid is stabbed near Mahim office. (Source: Indian Express)==========================================
Related Excerpts from Shrii P. R. Sarkar's books
"The second psychological loophole is that there are several disparities in the law. The constitution of India proclaims that all are equal in the eye of the law. But in practice, this principle is not followed, and as a result disparity is growing in the arena of law and justice. Such disparity is adversely affecting the different groups of people in the country. For example, there are disparities between the Hindu Code and the Muslim Code. Hindu women and Muslim women, although they are all Indian citizens, do not get equal advantages of law. For instance, according to Hindu law, a man cannot have more than one wife, but a Muslim man is entitle to have more than one wife. A Hindu husband or a Hindu wife is required to approach the court to secure a divorce, while a Muslim man is entitled to divorce his wife without the permission or approval of the court. Moreover, a Muslim husband can divorce his wife but a Muslim wife cannot divorce her husband. Besides, a Muslim husband is not required to show [any reason for the divorce].
Disparity in the eye of the law is creating all these problems. The root of all these evils lies in the psychological loopholes of the Indian constitution. Why is the constitution allowing the Hindu Code and Muslim Code to stand side by side? Let there be only one code -- the Indian Code. This Indian Code should be based on cardinal human values, with a universal approach and Neo-Humanistic spirit. Then only equality before the law can be established in practice, and equal protection of the law for all can be guaranteed. So the constitution should remove the psychological loopholes by eradicating existing disparities in the eye of the law." (Shrii P. R. Sarkar, A Few Problems Solved Part 8)
"The eighth meaning of the word kadara is "purdah". The word parda' [purdah] is of Persian origin. "Purdah" means not only a curtain on the window or over the door, it means a piece of cloth covering the head and face of a woman (i.e., a veil); it means that a woman must not move freely outside the house; it also means keeping the women covered in burkas."* (Shrii P. R. Sarkar, 12th January 1986, Calcutta)
In the Middle Ages fanatic Catholics, who regarded non-Catholics as unbelievers, burnt them alive; and many orthodox mullahs decreed that killing an infidel was not a sin. Orthodox Sana'taniis tried to murder Lord Buddha. During the reign of Bimbisar, power-mad Buddhist monks oppressed the Hindus. Hindu Brahmans and Muslim mullahs were equally vindictive towards Mahatma Kabir. Similarly, orthodox vipras oppressed Chandidasa, Ramamohana and Ishvarchandra Vidyasagara. (Shrii P. R. Sarkar, HUMAN SOCIETY PART 2)
