By Sultan Shahin, Founding Editor, New Age Islam
17 April 2017
Indian ulema seem
determined to continue to wallow in their follies. The Lucknow meet of
the All India Muslim Personal Law Board (AIMPLB) makes it clear that
they will not honestly introspect and change course. In the face of
persistent demands from Muslim women and liberal elements of the
community for change, it has simply asserted that Muslims have the
"constitutional" right to follow their personal law. Of course, they do.
But they also have the “constitutional” right to demand that this law
be in conformity with their primary scripture, the holy Quran. In an
earlier write-up in this space I have shown how that is not at all the
case with the Anglo-Mohammedan Law that goes as Muslim Personal law in
this country.
AIMPLB General
Secretary Maulana Wali Rehmani is seeking to obfuscate the issue by
saying that “if the law is misused, corrective steps should be taken,
instead of changing the law.” The problem is that it is the law that is
inconsistent with the Quran as well as demands of natural justice and
gender equality. How is it being “misused” if it allows instant triple
Talaq and Muslim men are using that provision to get rid of their wives,
with express support from the ulema, often without even pondering the
issue. The most vile and obscene practice of “nikah-e-halala,” prevalent
only among Indian Muslims now, is a direct result of unthinking
divorces due to the law that allows triple Talaq in one session. A well
thought out divorce following the method given in the Quran would not
lead to such degradation.
The Board is
suggesting “corrective” steps like social boycott for anyone who gives
three Talaqs in one sitting. This is juvenile and absurd. Who cares for a
social boycott these days and in any case who will monitor the society
and what punishment will be given to those in the society who continue
to interact with such a person. Then, who will prescribe and administer
this punishment. Board ulema seem to be actually living in the 7th
century when perhaps such medieval punishments could be effective.
Quran, however, though a 7th century scripture, does not prescribe any
such punishment. Nor did the second caliph Hazrat Umar, on whose
authority the ulema justify the instant triple Talaq as he is supposed
to have accepted it as a fait accompli. But he had also ordered flogging
for anyone who dared say Talaq thrice in one session.
In any case the issue
is that of a bad law, not its misuse. Indeed, this bad law is even
supported by infantile fatwas giving legitimacy to triple Talaqs
conveyed unilaterally through text messages, internet chats, and so on.
The root of the
problem for the ulema lies in the stagnation in Islamic theological
thought for over a millennium. Orthodox Islam had called for creative
rethinking of issues as and when new situations emerged. This was called
ijtihad. It was practised by jurists like Imam Abu Hanifa, Imam Shafei,
Imam Malik, Imam Ahmad ibn Hanbal, etc. The gates of ijtihad, however,
were closed after that. It was said that fresh thinking is no longer
required. No one had the authority to close the gates of ijtihad, but
ulema accepted that. This is what has caused the biggest problem. Indian
ulema are perhaps the most conservative of all today. They would not
even accept what their counterparts in Pakistan and Bangladesh have.
The problem for AIMPLB
arises from the fact that its ulema follow Imam Abu Hanifa who is said
to have accepted a fait accompli as legitimate, even if the act was
haram (forbidden). Other jurists like Imam Malik, Imam Shafei and Imam
Hanbal do not accept a haram act as legitimate. The AIMPLB keeps
repeating that triple Talaq in one sitting is haram but says that once
it is done it is done; it is a fait accompli and nothing can be done
about it, it has to be accepted as legitimate.
This is what is taught
to Muftis in Deoband and Bareilly and this is what they, therefore, say
when asked to give a fatwa on such issues. Shias and Ahl-e-Hadith do
not accept this positon. But members of these sects in AIMPLB continue
to support its position in the interest of community solidarity, even
though this stand is contrary to their juristic understanding and
practice. Some people had started expecting something positive from the
Lucknow meeting when its Shia member, Maulana Kalbe Sadiq hinted a
couple of days ago that the Board might be willing to phase out the
abhorrent practice of triple Talaq within a year and a half. But
apparently even the Shia and Ahl-e-Hadith members did not press for
change.
The AIMPLB should,
however, understand that whatever stand Hazrat Umar or a jurist like
Imam Abu Hanifa may take, God did not accept the fait accompli as giving
legitimacy to a vile act. The most relevant case in point is that of
Az-zihar, a pre-Islamic practice that some Muslims continued to engage
in after embracing Islam. In Az-zihar, a husband wanting to divorce his
wife would simply say that she was like his mother and hope that this
would be accepted as an indirect divorce.
This practice made God
very angry. In Quran Chapter Al-Mujadila (58), verses 2 to 4, He calls
this practice vile and falsehood, and a lie and prescribes punishment
for those who engage in such vile practice. He does not accept it as a
legitimate form of divorce.
“If any men among you
divorce their wives by Zihar (calling them mothers), they (wives) cannot
be their mothers: None can be their mothers except those who gave them
birth. And in fact, they use words (both) iniquitous and false: but
truly Allah is one that blots out (sins), and forgives (again and
again). (Quran Sura Al-Mujadila (58), verses 2)
I have made this point
earlier, indeed very recently. Yet this bears repetition, as its
implications are not well understood. The above verse makes it clear
that God does not accept the fait accompli argument in the case of
divorce by Az-zihar: Quran tells them clearly “wives cannot be mothers.”
Why should a so-called “fait accompli” be then applicable to triple
Talaq in one session? Our ulema agree and say repeatedly that the
practice of instant triple Talaq is vile and abhorrent and haram. But
they don’t even prescribe any punishment for the evil-doer? They are
talking of medieval absurdities like social boycott which simply cannot
be enforced even if it were to be accepted as a legitimate form of
punishment today.
Like ulema around the
world, our ulema too should understand that now they are living in the
21st century, in the age of internet. Not only Quran but even the
contrasting opinions of various jurists are available to all Muslims. It
has become very easy for any interested person to study Islamic
scriptures as well as books of jurisprudence.
Triple Talaq is like
the proverbial Sword of Damocles hanging over the head of our women
permanently. Even in perfectly harmonious marital relationships, the
consciousness of the Sword remains present, vitiating the relationship,
making it iniquitous.
Progressive Muslims,
men and women, are no longer willing to allow this situation to persist.
The entire Muslim world has accepted the un-Islamic nature of instant
and unilateral triple Talaq. The arguments that AIMPLB has presented
before the Supreme Court have already been debunked in Islamic
theological literature. Change is inevitable. Indeed, they should accept
it as a fait accompli.
----
Sultan Shahin is the founding editor of a Delhi-based progressive Islamic website NewAgeIslam.com.
Note: This article first appeared in FirstPost.com and is available at: http://www.firstpost.com/india/triple-talaq-row-social-boycott-as-punishment-is-juvenile-aimplb-scholars-must-accept-change-and-follow-quran-3388416.html
7:25 AM
Moderate Islamist here
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