Monday, July 12, 2004

Personal Law in India: Triple Talaq, Mehr, and why it doesn't matter anyways

I was briefly excited to see some movement regarding Triple Talaq (where men can instantly divorce their wives) from the Indian Muslim Personal Law Board. But, as Soma Wadhwa writes in this week's Outlook, what the MPLB has ended up with is pretty disappointing. Moreover, many other substantial issues relating to women's rights in the Muslim community are simply not being addressed by the overwhelmingly male board (1 woman, 41 men).

Muslim women's advocates have other issues they want addressed (such as the right of Muslim women to divorce men), and are clear-headed on what it will take to get there:

This was a far cry from the original promise of a draft model nikahnama, a promise now deferred to the board's November meet in Kozhikode. Women's groups and activists in the community who have been lobbying tirelessly for a ban on triple talaq for years now are obviously disappointed. "The board has little concern for women and their rights," regrets Hasina Khan of Awaz-e-Niswan, a Mumbai-based support group for Muslim women. "ngos and civil society have very little dialogue with them, and there are very few women on the board anyway." Agrees Nazneen Barkath, president of the Madurai-based All India Progressive Muslim Conference, "It is, of course, necessary to get rid of the un-Islamic practice of triple talaq, but the long-term battle must be for women's participation in the affairs of the jamaat (community). Unless Muslim women get a due share in the administration of mosques, women's issues will only be decided by men." A fact that Lucknow-based Naseem Iqtidar Ali, the lone woman in AIMPLB's 41-member-strong executive committee, knows through experience. Her demand that Muslim women be granted the right to divorce their husbands (tafviz-e-talaq) was ignored outright at the Kanpur meeting. "The board just has to make it mandatory that a clause giving wives the right to divorce is inserted in all nikahnamas. Today, talaq can be so unfair to women," she says.

Much of the debate amongst Personal Law Board members relates to what is the best interpretation of Sharia. The problem is that Sharia was composed entirely by human interpretations of the Quran; it is not strictly what the Quran says, and in some cases there are arguably deviations. Moreover, in India in particular, there is a long history of Muslim personal law as adjudicated by British lawyers in colonial India:

While the orthodoxy's strongest argument against abolishing the practice of triple talaq in one sitting has always been that it is based on the Shariat or the Divine Laws, liberals push for a more contemporary understanding of the genesis of these Divine Laws. The original message in the Quran was in its intent and design both radical and humanitarian. The corpus of rules articulated centuries after the death of Prophet Mohammad by the Muslim establishment in the light of the dominant patriarchal ethos of the emerging society were incorporated as the Shariat. Liberals point out that rules characterised by the ulemas as Sharia, even though entirely the creation of a human agency, became vested with the sanctity of being either revealed or divine. Plus, in India, the Anglo-Mohammedan law evolved by the colonial courts in their effort to apply the laws of the Quran (in cases where the parties were Muslims) also began to be construed as a part of the Shariat. These laws, the handiwork of those who were not even nominally Muslims, were justified through the legal fiction that the courts were not interpreting the Shariat but merely applying it.

Muslim personal law as it now stands owes much more to Anglo-Mohammedan law than it does to official Sharia (much less the Quran, only 'real' source of authority in Islam).

The triple talaq issue has been hotly controversial since the Shah Bano decision in 1986. There, the Supreme Court ruled in favor of an elderly woman who had been divorced by her husband with a triple talaq. Shah Bano had demanded maintenance (alimony), which her ex-husband had refused. There is actually a provision for this in the sharia. According to Madhu Kishwar, in her essay "Pro-Women or Anti-Muslim? The Shah Bano Controversy" (from Religion at the Service of Nationalism and Other Essays), at the time of the ruling the Supreme Court had already ruled on two earlier Muslim divorce cases in favor of the women plaintiffs. In one case, Justice Krishna Iyer had cited a practice called mehr as justifying his decision to grant maintenance. Kishwar defines mehr as follows:

Mehr, translated as "dower," is somewhat similar to the marriage settlement that used to be prevalent in some European countries whereby the husband settled an estate on the wife as a security for her. The amount of mehr is of two kinds--prompt and deferred. Prompt mehr is that which the husband must give the wife any time she demands it. Deferred mehr is that which the wife agrees not to demand until the marriage is dissolved by death or divorce. The latter form is more prevalent in India.

There is a further wrinkle, which has to do with another form of maintenance. Shah Bhano's ex-husband, Mohammed Ahmed Khan, had actually paid her a lump-sum amount for the divorce, during the iddat, the three-month period following the official talaq. (During that three month period, the husband is supposed to "keep the wife in his houseand maintain her at his own standard of living."). Shah Bano's lawyers had argued for another, ongoing payment, the mataa, which is described in the Quran: "And for divorced women let there be a fair provision (mataa). This is an obligation on those who are mindful of God" (2.241).

Of course, though all the intricacies of sharia are quite fascinating, it's really besides the point, because neither Sharia nor the Quran should decide the legal arrangements of modern nation-states. Constitutions need to be decided democratically in order to serve the interests of all citizens.

In the case of sharia, the interest may be pragmatic as well as principled: it seems to me that the sharia, with its sometimes contradictory concepts of mehr, iddat, and mataa, is simply too arcane to be credible. We shouldn't be discussing fine points of Quranic language, we should be discussing equity and justice.

The MPLB has refused time and again to make substantive changes in Muslim personal law. One can see why they are so reluctant -- for the past twenty years and more, the Muslim community in India has been under constant rhetorical (and sometimes real) attack by the majority. In such a climate, the Board has refused to change its stance as a matter of showing some backbone.

But now, with the setbacks for the Hindu right in the recent elections, the MPLB has plenty of room to move -- there are no new Rath Yatras on the horizon, no riots, no impending wars, and no terrorist hysteria. The fact that they still won't make any meaningful changes in the Personal Law shows that something is deeply wrong with the system.


<< Home