|
India Thinkers Net Archives Index
|
Subscribe
|
|
| << May20, 2005 - [India Thinkers Net]Cong-BJP pact,North-East news,Armed forces panel |
May22, 2005 - [India Thinkers Net]MV Kamath's article & Biharis in J &K >> |
|
[1] From: Sukla Sen <suklasen@yahoo.com> Date: Sat May 21, 2005 8:05am Subject: On Model Nikahnama From: Csss <csss@... MODEL NIKAHNAMA - A HOPE OR A DISAPPOINTMENT? Asghar Ali Engineer (Secular Perspective May 16-31,05) The electronic and print media have shown tremendous interest in the model nikahnama approved by the Muslim Personal Law Board, which is being referred to as the Bhopal Declaration. This Bhopal Declaration was issued by the MPLB after its session in Bhopal from 30th April to 1st May 2005. Does it give hope or evokes disappointment. It depends how you look at it? If you are among the hopefuls you can say it is a step forward and that future will bring more relief. However, if you are pessimistic you can say it is too little too late and that much more was expected from the board. In fact there is an element of truth in both the positions. For years the Board sat tight and did nothing in the matter. Now at least, one can argue, the Board realised the urgency of the matter and issued this declaration, which, if not revolutionary, is, at least, one step forward and it should be welcome as such. The Muslim community is also divided on this issue. While many have welcomed this declaration others have dismissed it as amounting to nothing. It would be better if we understand the background of the Muslim Personal Law Board and the purpose for which it was formed. Before that we would like to point out that there is debate about the representative nature of the Board. Is it representative of all Muslims and shades of opinion or not? Obviously it is self-constituted and hence does not have representative character. It was formed in 1972 in Mumbai by some 'ulama who gathered there in response to the campaign for uniform civil code by some people. The fear was that as a result of this campaign Muslim personal law will be abolished and uniform civil code (UCC) will come into existence. Thus most orthodox 'ulama came together to 'protect' the Shari'ah law. In fact in Indian context it is misnomer to call it Shari'ah law as in fact it was Anglo-Mohammedan Law, which we inherited from the British period and it was enacted as such by the British rulers. The Muslim personal law board so constituted by a section of the orthodox 'ulama co-opted 'ulama and others like advocates, academics and others from all sections of Muslims like Sunnis, Shi'ahs, Deobandis, Barelvis, Ahl-e-Hadith, Bohras etc. to make it as representative of Muslim opinion as possible though basically it remained self-constituted. Thus the basic task of the Board was to 'protect' the Muslim personal law than to reform it or to change it in keeping with the demands of time. This continued for more than two decades but with the spread of education and awareness among Muslim women pressures began to be built up for necessary changes. It is important to note that more and more Muslim women are opting for modern education, which in turn makes them aware of their rights and they begin to campaign for the same. In sixties and seventies, even up to eighties, there were no Muslim women NGOs but now several of them are functioning and campaigning for change in Muslim personal law, as it exists today. Not only this now Muslim women have even formed their own boards and one of them led by Shaista Khan has even declared that since Bhopal declaration is not satisfactory they will frame their own nikahnama and make it enforceable. It is important to note that what MPLB has issues as declaration is only advisory in character and has no legal value and hence cannot be enforced. It being mere advice Muslims may or may not follow. Its effect, therefore, will be quite limited. A Muslim might well choose to ignore the advice and still pronounce triple divorce in a state of anger or drunkenness. One may, therefore, argue what good is this declaration issued after years of struggle and therefore could at best be characterised too little too late. All 'ulama agree that triple divorce is sinful form of divorce (talaq-e-bid'ah) and should be avoided. They question arises why the 'ulama took so long to tender this advice to avoid this sinful form of divorce? They never tire of saying that divorce is most hated thing in the eyes of Allah and still keep on enforcing most accursed form of divorce. And it took decades of struggle on the part of Muslim women's organisations to issue this advice. Was it not their religious duty all these years to keep on campaigning against this sinful form of divorce? Have they not failed in their duty so far? And what after all have they achieved with this declaration? This form of divorce has been banned in all Muslim countries including Pakistan and Bangladesh. It is only Indian 'ulama who refuse to ban it and ironically enforce it in the name of divine law. How can a sinful form of divorce be divine, one would like to ask. Not only that it is not permitted by the Qur'an but not even by hadith. On the contrary the Prophet (PBUH) strongly condemned it. According to one hadith, when it was reported to the Prophet (PBUH) that someone had divorced his wife thrice in one sitting his face turned red with anger and he is reported to have said he is playing with Allah's laws in my own life time. With Qur'an not allowing it and the Prophet so strongly condemning it why Indian 'ulama are hesitating to ban it? Also, there is no unanimity among Muslims on this form of divorce. The Ahl-e-Hadith, the Shi'ahs and the Bohras do not accept it and among Sunnis too Hanbalis and Malikis generally do not permit it. Imam Ibn Taymiyyah, a great 14th century jurist vehemently argued against it and also it is quite unjust form of talaq whereas justice is very central to Islamic jurisprudence. The Qur'an while disapproving talaq as it breaks husband-wife relations and Allah has created love and compassion between them (30:21) has shown very just method of divorcing (see verses 4:35 and 2:229) and also requires witnesses for divorce (see 65:2) and triple divorce violates all these Qur'anic injunctions. How can then it be validated and whether one should follow the Qur'an with such clear injunctions on divorce or some controversial hadith? It is for 'ulama to answer. It is high time therefore, to abolish triple divorce and if it is not possible to do so right away due to internal differences they should strongly campaign against it and also penalise those Muslims who resort to it. It was suggested by some women groups from Hyderabad that those men who resort to this un-Qur'anic form of divorce should be made to pay one lakh rupees by way of penalty. If the 'ulama argue that they are not in a position to abolish triple divorce right away, let them penalise those who resort to it. But it seems they do not want to hurt the domination of men over women. The least the MPLB can do is to take initiative to codify the Muslim personal law which will be quite in the spirit of the Islamic Shari'ah. Yes, talaq is permitted, polygamy is permitted in certain circumstances but in the absence of any codification unscrupulous use is made of these provisions. Maulana Ashraf Thanavi did so in 1939 by codifying the law on dissolution of Muslim marriage and asking the British Government to enact it and has shown way to us to stop abuse of certain provisions in Islamic law. The 'ulama themselves did it in 1986 when they drafted Muslim Women (On Divorce) law in 1986 in the wake of the Shah Bano controversy. They did so readily since they thought it will benefit men (though it did not due to different interpretations but by the courts). But when it comes to protecting rights of women they show no initiative. Today in the absence of codification man's right to divorce his wife has become absolute. The Qur'an does not give such absolute right to man. Similarly in the absence of codification any Muslim man can take second or third or fourth wife. In the process of codification one can clearly define the grounds on which divorce would be admissible and it should be justiciable. If talaq is hateful in the eyes of Allah how could then it be given so arbitrarily. No civilised community can allow such arbitrariness in divorcing ones wife. It must be made justiciable in the courts of law or at least in the Shari'ah courts (though secular courts are much more preferable) on well defined grounds. Similarly for polygamy too there should be well -defined procedure and just grounds as it has been done in almost all Muslim countries. The 'ulama and well-known Muslim lawyers should draft a comprehensible bill in this respect within the Shari'ah framework and give it to the Government to enact it through parliament. Thus there will be no interference in the Shari'ah law by any external agency and also it will achieve the purpose of doing justice to Muslim women. Of course this will not come about without struggle on the part of Muslim women and men who stand by women's rights. Islam was most fair to women and gave them concretely defined rights but men through medieval ages found ways to deprive women of their Islamic rights. Now time has come to restore these Islamic rights back to women. It would be better if, like model nikahnama, some Muslim intellectuals, legal experts and activists draft such a bill and struggle for getting it accepted over period of time. Only such comprehensive codification will ultimately help the cause of Muslim women. One can draw from Muslim countries in drafting such a bill. Centre for Study of Society and Secularism Mumbai:- 400 055 Website: www. csss-isla. com ---------------------------------- [2] From: dnrad1 <dnrad1@sancharnet.in> Date: Sat May 21, 2005 11:22am Subject: A farce of a nikahnama A farce of a nikahnama - By Seema Mustafa Asia Age The importance being attached to itself by the Muslim Personal Law Board is bewildering. A group of self-appointed persons have come together yet again, this time to propose a nikahnama (marriage document) that they claim will protect the rights of the Muslim woman. And liberals all over - mind you, not Muslim women - have joined them in welcoming the "big step," the "first important step," the "great beginning" as if the proposals contained in the nikahnama are actually going to help liberate the Muslim woman from the shackles that have come to be associated with marriage. The two main reasons for the destitution and victimisation of the Muslim woman are the triple talaq pronouncement by which a legitimately married woman finds herself out on the streets after a lifetime; and the refusal of the Muslim man to pay her and her children maintenance because of which she often becomes a destitute. The Muslim Personal Law Board has not addressed these issues at all. In fact, all that the Board has done is to declare that the triple talaq method of divorce is undesirable and should definitely not be used as a favoured practice by the Muslim man to get rid of his wife. But then this is what even the worst fanatics say, for there can be no practising Muslim who can actually stand up and declare that triple talaq - the method by which a woman can be divorced by the man by pronouncing the word talaq three times at one go - is a preferred right and can be exercised without discrimination. I still remember at a conference, several years ago, when a cleric stood up and in his sanctimonious speech challenged women's organisations to show him one woman who had been thrown into the depths of destitution because of the Muslim man's complete misuse of this provision. We had urged him then to accompany us to the walled city or even to our homes to bring out those "Shakilas" who had found themselves outside the institution of marriage simply because the man they were married to decided one fine day to give them a divorce. Now we are told by the Muslim Personal Law Board that while triple talaq is not a happy proviso, there is little that the august members can do about it at this stage. And we are told by liberals that at least the Muslim clerics have taken the first step by recognising that the triple talaq is not a happy practice, and that they should be given an opportunity to fine tune their reservations further. It is not surprising that the loudest protest is coming from the Muslim women's organisations and individuals who have not hesitated to decry the Board's sanctimonious nikahnama as a "farce" and have made it very clear to those who are willing to listen that the marriage document does not meet any of their requirements. Triple talaq is an abhorrent practice against which most Muslim countries have legislated. That the Muslim Personal Law Board in India has refused to shun it altogether speaks volumes for the backward thinking of its members. Apparently, there was not a single voice in the Board to speak in favour of a more progressive nikahnama, a document that would protect the rights of women and ensure that not a single person was left without a home and without the means to sustain herself at the end of the day. Maintenance is another issue that has to be looked at closely, for the provisions of the Shariat are being abused by the Muslim man to deny the woman her basic rights. The new nikahnama proposed by the Board speaks of giving the meher money at the time of marriage or within a specified time frame. This is fine, but if meher is also the only money that a Muslim woman is entitled to after marriage, then surely the members of the Board should have stepped in to ensure that the amount is directly proportionate to the husband's income, and sufficient for the wife to draw upon lest she be thrown out by the man one fine day. At present, the meher fixed at marriages is as low as a few hundred or few thousand rupees, "pandan" money just sufficient to buy "paan" by the woman. It is all very well to say that the woman's family should insist on a handsome amount but the members of the Board know better than others, that this does not happen in reality. But if this sum is specified, and stipulated, then perhaps women might have a little more protection and will not remain dependent on the "goodness of man" as appears to be the case now. There are thousands of Muslim men who marry four times, leave their wives and their children without meher or with the pittance that passes for meher, and move on to exercise this other right that the Indian Muslim man has abused through the years. The woman is left holding the children, and is out on the streets looking for some means to earn a livelihood for herself and her children. Triple talaq, four wives, no maintenance - and this has been virtually endorsed by the Muslim Personal Law Board with the new nikahnama containing not a single provision to guard the Muslim woman from this sustained abuse. The Board has claimed that it will not be guided by other Muslim countries, simply because many of these nations have enacted laws ensuring that a man cannot exercise any of these supposed rights without sufficient checks built into the legal system. He cannot pronounce triple talaq in many countries and has to convince a court of law. He cannot marry even a second time without convincing the court with the first wife having full powers to ask for legal redress. But here, all that they produce at the end of the day is a useless marriage document, a complete farce that says nothing that has not been said before. I hope I am wrong, but apparently there is now a move by some Muslim leaders to insist that the matters relating to personal law should be tried by Shariat courts and not the court of the land. Fortunately, in a secular state like India this demand will just remain that, a demand, and cannot seriously be considered as a possibility. The few Muslim women who have got some kind of relief - be it Shah Bano or anyone else - are amongst those who have approached the secular courts who have then interpreted the Muslim law to ensure that women are given their rights. God help them if even this freedom to approach the courts is taken away and their future shackled to the Shariat courts that the Muslim men are proposing to further consolidate their hold over the women. One can only say that the advocates of this must also then allow the Islamic financial laws and criminal laws to prevail, and insist that they are tried for the abuse of these provisions of the Shariat as well. It is amazing how willingly the men here have given up the stringent Islamic financial and criminal laws to adopt the secular laws of the land, while they shout themselves hoarse when any attempt is made to bring the personal laws - including Hindu and Christian laws - under a secular framework as well. So while the Muslim man is not willing to have his hand cut off for stealing, he is the first to stand in line and scream when the courts allow the meagre maintenance of Rs 500 under the Criminal Procedure Code to a destitute woman (Shah Bano) to prevent her from destitution. Again while the Muslim man is not willing to pay zakat or turn away the handsome interest he gets on his fixed deposits from the banks, he is the first to attack those questioning his right to divorce his wife in one sitting, to marry again, and to ensure that not a rupee is paid from his coffers for the upkeep of the woman who has spent a lifetime with him. It is strange that there are many Muslim liberals now who are actually applauding the Muslim Personal Law Board for bringing out a marriage document that does not address the fundamental issues and betrays the usual lack of sensitivity to the victimisation and exploitation of women under the guise of religion. There can be no meaningful nikahnama until and unless it protects the woman's rights in marriage, to have a say in both her marriage and divorce, to have a right to the custody of her children, and to receive maintenance from her husband that is not meher but an amount fixed to ensure her a decent life. Anything less cannot be acceptable to any woman who values her dignity and self respect |
|
| << May20, 2005 - [India Thinkers Net]Cong-BJP pact,North-East news,Armed forces panel |
May22, 2005 - [India Thinkers Net]MV Kamath's article & Biharis in J &K >> |
|
India Thinkers Net Archives Index
|
Subscribe
|
|
|
Archives powered by Zinester's Mailing List Service
Details on India Thinkers Net |
Browse for more newsletters at Zinester's Ezine Directory
Managed by Zinester's Mailing List Management |