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memri
August 24, 2017 No.
1332

India's Islamic Leaders Defiant After Supreme Court's Landmark Verdict Invalidating Shari'a-Based Instant Triple Divorce

By: Tufail Ahmad*


Muslim women flash victory signs after the Supreme Court verdict (Image: IndianExpress.com)

Introduction

On August 22, 2017, the Supreme Court of India delivered a landmark verdict invalidating the practice of instant triple talaq (divorce) among Indian Muslims. The verdict is a milestone in the journey of the Muslim women's rights movement in India. Prior to this decision, a Muslim husband could divorce his wife by uttering "talaq" three times in the presence of two witnesses in one sitting – either informally or formally through a letter, email, WhatsApp, and so on. This instant form of divorce is called talaq-e-biddat, is irrevocable, and is valid in shari'a law. The other form of triple talaq is called talaq-e-hasan, whereby a husband delivers one talaq each over the course of three months.

There were five judges on the constitution bench: Chief Justice J.S. Khehar, Justice Kurian Joseph, Justice Rohinton F. Nariman, Justice Uday U. Lalit and Justice S. Abdul Nazeer. Each judge belonged to a different religion: Sikhism, Christianity, Zoroastrianism, Hinduism, and Islam. There were differences of opinion among the judges who delivered three judgments. The verdict has two parts: the judgments and the order. While the judgments are lines of reasoning discussed by the judges and could be used in future to decide other cases, the legally enforceable part of the 395-page verdict is the order, which is brief and says: "In view of the different opinions recorded, by a majority of 3:2, the practice of 'talaq-e-biddat' – triple talaq – is set aside."[1]

The practice of instant triple talaq, abolished by 22 Muslim nations, had emerged as a social disease in India in recent years. Muslim women, affected by the unilateral divorce by their husbands, were frequently approaching courts to give them a sense of justice against the instant form of divorce. The Supreme Court heard the case specifically with regard to talaq-e-biddat, and, by invalidating it, accorded dignity to the Muslim women who were left at the mercy of shari'a on this issue. Therefore, August 22, 2017 has become a landmark day for Muslim women in India. This paper reviews the response of Islamic leaders – as appearing mainly in the Urdu-language newspapers – to the Supreme Court's landmark verdict.

The Responses of Islamic Leaders


Maulana Mahmood Madani, a key leader of Jamiat Ulema-e-Hind (image: Jagran.com)

Responding immediately after the verdict, Maulana Arshad Madani, the president of Jamiat Ulema-e-Hind (the Assembly of Indian Islamic Scholars), described the verdict as "contrary to shari'a," adding that "the coming days can give birth to many other problems for Muslims."[2] Urging Indian Muslims to adopt Islam in every aspect of their daily life, Arshad Madani said that the Supreme Court verdict will not impact religious Muslims. He expressed concern that the right-wing Hindu nationalist Bharatiya Janata Party (BJP) of Prime Minister Narendra Modi and its mother outfit Rashtriya Swayamsevak Sangh (RSS) were out to change the nation's character.

"The matter is not limited to divorce," Arshad Madani said, adding: "Rather, it's part of the agenda of the ruling BJP and its mother organization RSS to transform the country into a Hindu nation and thrust the uniform civil code [UCC)]."[3] The UCC is a desired code of rights which the framers of the Indian constitution asked the state to enact into a law, but successive governments have not done any thinking on what specifics should constitute such a code.

It should be noted that Arshad Madani's Jamiat Ulema-e-Hind, the All India Muslim Personal Law Board (AIMPLB), and many other Islamic organizations were party to the case before the Supreme Court. Because the practice of instant triple talaq (talaq-e-biddat) has lost legitimacy even in the eyes of Muslims, these organizations were caught in a bind in their initial reactions. Roznama Urdu Times, an Islamist daily published from Mumbai, appeared to be heartbroken and carried Arshad Madani's statement on its front page as a banner headline which read: "Supreme Court's 'anti-shari'a decision' will not impact religious Muslims."[4] Roznama Inquilab, another Urdu daily published from 14 towns of northern India, carried a banner headline calling the court verdict "a setback to milli [Islamic] organizations."[5]

Jamiat Ulema-e-Hind, which is a leading organization of Indian Islamic scholars, was defiant. Maulana Mahmood Madani, general secretary of the Jamiat Ulema-e-Hind, warned: "Regardless of the court ruling, the practice of talaq, including instant triple talaq, will continue in the country and will be considered valid."[6] He added: "I want to state in unequivocal terms that [the practice of instant triple] talaq will continue to happen even though it is the worst sin in Islam; even instantaneous talaq will happen. If you want to punish the person, you can, but the divorce will be deemed to have happened [as per shari'a]."[7] Mahmood Madani's statement indicates that religious scholars will lead Muslims on a path that will create shari'a-based social enclaves in Indian society.

Leading Islamic scholars at the Darul Uloom Deoband, the second largest Islamic seminary after Cairo's Al-Azhar University, were disturbed by the verdict. As per a report in the Urdu Times, "the scholars of Deoband, while describing the court verdict as perplexing, warned that no interference in shari'a will be tolerated."[8] Mufti Abdul Qasim Nomani, chancellor of Darul Uloom Deoband, said that "the triple talaq is purely a shari'a issue in which no amendment can be effected."[9] Maulana Muhammad Salim Qasmi, another leading scholar at Deoband, expressed similar views.[10] Uzma Naheed, the vice president of the Islamist group All India Muslim Majlis-e-Mushawarat, said: "To me, the entire debate appears to be aimed against the Muslim community. Only Islamic scholars will understand the nuances of these issues, and shari'a alone is their better solution."[11]

Maulana Syed Moinuddin Ashraf Jilani of the Mumbai-based Jamia Qadria madrassa also warned that no interference in Muslim personal law will be accepted. Muhammad Saeed Noori, the general secretary of the Mumbai-based Raza Academy, said that a final next step will be decided by Islamic scholars after reading the text of the order. However, he criticized the verdict, saying: "If a law is made which is against shari'a, then it will be unacceptable to us. And like such other laws, it too will meet the same fate that it will remain a law but will not be followed."[12] Syed Parvez Qaisar, a leader of the Muslim League, condemned the verdict, calling it "interference" in Muslim personal law.[13]

In the northern town of Patna, Maulana Aneesur Rahman Qasmi, the chief of the leading religious organization Imarat-e-Sharia, urged Muslims not to be disheartened.[14] Qasmi noted that the Supreme Court accepted the view that Muslim personal law was protected by the constitution's Article 25, which guarantees the fundamental right to religion, and courts cannot interfere in this matter.[15] However, he was perhaps unaware that this specific point discussed in the verdict was a minority opinion argued by Chief Justice Khehar and Justice Nazeer. The remaining three judges on the bench disagreed with this view. Maulana Badruddin Ajmal – an Islamic cleric who is also a political leader from India's northeastern state of Assam and a member of the Indian parliament – expressed displeasure at the Supreme Court verdict, saying: "The declaration of triple talaq as illegal will create more problems. Because, after a divorce is given [through instant triple talaq] the relation between the wife and husband will cease as per shari'a and it will be haram [forbidden] for them to live together, while it will not be accepted as per divorce in the law."[16]


Front page of Roznama Urdu Times declares that the verdict will not impact religious Muslims

Barrister Asaduddin Owaisi, member of parliament and leader of the All India Majlis-e-Ittehad-ul-Muslimeen,  said that it will be difficult for Muslims to follow the Supreme Court's verdict on triple talaq. However, he was cautious: "We should respect this verdict."[17] He also expressed the view that "Muslim personal law cannot be brought into the jurisdiction of courts."[18] He also said that the laws and court verdicts alone do not bring about societal change and noted that 10 million children of all religious communities are married in India despite the existence of a law against child marriage. Like many other Islamic leaders, Owaisi took the view that a final decision will be taken by community leaders in September at a meeting of the AIMPLB, a non-governmental network of Islamic organizations in India.

In its tentative reaction, the AIMPLB, which was a respondent in the case and had favored retaining the instant triple talaq, gave a cautious welcome to the verdict, saying that the Supreme Court has "not only protected Muslim personal law but has also clarified that it cannot be tested against the fundamental rights before the courts."[19] As stated above, this point, that Muslim personal law is protected by Article 25, was argued by the minority judges Chief Justice Khehar and Justice Nazeer while the rest of the three judges on the bench – Justices Joseph, Nariman, and Lalit – actually went ahead and adjudged parts of Muslim personal law as violating the fundamental right to equality under Article 14 of the constitution, thereby invalidating the instant triple talaq.

Maulana Muhammad Wali Rahmani, the secretary of AIMPLB, urged Muslims not to be sad because "the shari'a has not liked the triple talaq delivered in one sitting" but he added: "However, if someone gives a triple talaq, then the divorce will become valid [as per shari'a-based personal law, if not under the Indian constitution]."[20] One should bear in mind that the expression "Muslim personal law" does not meant that such a law exists; instead, this is merely an expression referring to a set of laws as per which a range of Muslim issues like marriage, divorce, alimony, and child custody are decided. The All India Muslim Personal Law Board has called a meeting on September 10 in the central Indian city of Bhopal where its members will take a final decision on the verdict. "A question arises regarding those women who accept only shari'a [in their lives]. Their number is in tens of millions," Zafaryab Jilani, a leading member of the AIMPLB, said.[21]

Conclusion

The practice of instant triple talaq affects only the Sunni Muslims who form the bulk of India's Muslim population. The opinion of Shi'ite clerics, who welcomed the Supreme Court verdict, is inconsequential to the debate. It is evident that Islamic leaders are perturbed at the verdict. This is largely because the court order not only undercuts the role of Islamic clerics in the life of Muslims, but also because Muslim women in India are openly challenging the legitimacy of instant triple talaq. The clerics are also fearful that the verdict could open different provisions of Muslim personal law to judicial scrutiny in coming years. Although the triple talaq has been abolished in 22 Muslim nations, most Islamic clerics in India deem it valid in shari'a despite being sinful.

Maulana Syed Athar Ali, the newly elected president of All India Muslim Majlis-e-Mushawarat for Mumbai, reacted cautiously, saying that there is an urgent need for a countrywide representative organization of Muslims which can provide leadership not only in religious but also political, social and educational matters.[22] Roznama Urdu Times published a column by Farooq Ansari, arguing: "This situation would not have come about if the All India Muslim Personal Law Board had taken a strong stand when the Muslim women had gone to the Supreme Court and had found a solution to this [issue of instant triple talaq]."[23]

The verdict was welcomed by Muslim women's campaign groups such as All India Muslim Women Personal Law Board of Ms. Shaista Amber (which has no connection with the AIMPLB) and the Bharatiya Muslim Mahila Aandolan both of which were respondents in the case. Both these organizations work within the framework of Islam for a reformist cause and had argued in favor of abolishing the instant triple talaq. Amber said: "There is no confusion. The court has completely outlawed the triple talaq. This will give women their right. The tradition of triple talaq will come to an end completely."[24]


*Tufail Ahmad is Senior Fellow for the MEMRI Islamism and Counter-Radicalization Initiative.

 

[1] SupremeCourtOfIndia.nic.in (India), August 22, 2017.

[2] Roznama Sangam (India), August 23, 2017.

[3] Roznama Sangam (India), August 23, 2017.

[4] Roznama Urdu Times (India), August 23, 2017.

[5] Roznama Inquilab (India), August 23, 2017.

[6] IndianExpress.com (India), August 24, 2017.

[7] IndianExpress.com (India), August 24, 2017.

[8] Roznama Urdu Times (India), August 23, 2017.

[9] Roznama Urdu Times (India), August 23, 2017.

[10] Roznama Urdu Times (India), August 23, 2017.

[11] Roznama Inquilab (India), August 23, 2017.

[12] Roznama Inquilab (India), August 23, 2017.

[13] Roznama Sahafat (India), August 24, 2017.

[14] Roznama Sangam (India), August 23, 2017.

[15] Roznama Sangam (India), August 23, 2017.

[16] Roznama Sangam (India), August 23, 2017.

[17] Roznama Sangam (India), August 23, 2017.

[18] Roznama Sangam (India), August 23, 2017.

[19] Roznama Urdu Times (India), August 23, 2017.

[20] Roznama Urdu Times (India), August 23, 2017.

[21] Roznama Urdu Times (India), August 23, 2017.

[22] Roznama Urdu Times (India), August 23, 2017.

[23] Roznama Urdu Times (India), August 23, 2017.

[24] Roznama Aag (India), August 23, 2017.