The Supreme Court has every right to interpret Muslim personal law in a way that satisfies the egalitarian principles of both the Quran and the Indian constitution.
If any Muslim woman had been bold enough to think that the All India Muslim Personal Law Board (AIMPLB) would moderate its medievalism given the unprecedented judicial scrutiny on triple talaq, her hopes stand dashed – perhaps permanently – for such is the outrageousness of some of the board’s arguments before the Supreme Court in the Shayara Bano case.
Take for example its justification of instant triple talaq as articulated in paras 66 and 78 (c) of the counter affidavit:
66. Further, it is not unknown that securing separation through courts takes a long time; this further deters the re-marriage prospects of the parties. In addition to the above, in cases where serious discords develops between the parties and the husband wants to get rid of the wife, legal compulsions of time consuming separation proceedings and the high expenses of such a procedure may deter him from adopting such a course and in extreme cases he may resort to illegal criminal ways of getting rid of her by murdering her. In such cases, Triple Talaq, is a better recourse in comparison to these illegal ventures…
78 (c). If there develops serious discord between the couple and husband does not at all want to live with her, legal compulsions of time consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive. Needless to add, a husband who does not fear God may do anything against his wife whom he hates. For only he is with her in the darkness of night. He has more chances of covering up his crime. Often do culprits get the benefit of doubt. This accounts for the rise in the cases of women being murdered and burnt alive.
No kind of scientific analysis would be able to deconstruct this irrational fear that if triple talaq is delegitimised, Muslim husbands may resort to criminal ways – including murder and incineration – to get rid of their wives.
It is unbelievable that anyone familiar with the Quran could even countenance the possibility of instant triple talaq being “a better recourse in comparison to” (sic) murder, or expensive and time-consuming separation proceedings in courts. Yet, for a body which claims to be made up of Islamic scholars, the board betrays an appalling ignorance of the Quranic procedure of divorce – an important aspect of which is the allocation of enough time to contending spouses for the resolution of marital disputes, to say nothing about the absence in Islamic texts of any linkage between uxoricide and protracted divorce proceedings.
The board supports its indefensible claims by citing works of relatively unknown scholars such as Al-Daraqutni, al-Bayhaqi and Ibn Abi Shayba, to name only a few, without informing the Supreme Court that the authenticity of their collections does not come anywhere near the credibility enjoyed by the hadees books of Imam Bukhari and Imam Muslim. In fact, the collections of Al-Daraqutni and al-Bayhaqi were compiled at least three centuries after the passing away of Prophet Muhammad (PBUH), and the compilation of Ibn Abi Shayba’s Musannaf is said to contain maqtu reports which suffer from discontinuity in the chain of narrators.
The board also highlights its unchivalrous patriarchy by arguing (in paras 71-77) that under the Shariah the husband alone enjoys the right to divorce “because men have greater power of decision making” and “they are more likely to control emotions and not to take a hasty decision.”
As evidence, it cites the fact that only men are addressed in verses pertaining to divorce in the Quran, and this, the board thinks, indicates the primacy of men. The affidavit also quotes certain ahaadees – sayings attributed to the Prophet – in which some of his decisions in marital disputes are advanced as evidence of Muslim men’s exclusive right to divorce.
But what is baffling is the board contradicts these contentions (perhaps as part of a clumsy effort to soften their unreasonableness) by taking the diametrically opposed view (in paras 79-93) that “it is a misconception that divorce in Muslim law is the prerogative and a unilateral right of the husband…” because Muslim women too can divorce their husbands through khula, talaq-e-tafweez and mubarah!
The affidavit, however, fails to inform the court that these terms find no mention in the Quran and that they are part of the post-Prophetic sectarian jurisprudence that gained currency during the Abbasid period. In any case, two of the divorce forms – khula and talaq-e-tafweez – do not confer legal equality on Muslim women as divorce through these methods becomes effective only with the written concurrence of the husband.
Nonetheless, the board needs to understand that although the procedure of talaq given in the Quran is with reference to men (perhaps because, barring exceptions, historically men have been victimising women rather than the other way around), the same holds good for women. This is because marriage in Islam is a contract (meesaaq) and both parties have equal rights to judicially revoke this covenant if the other party breaches it.
Also, as the Quran is based on principles of gender equality there is no question of it granting legal superiority to men over women on any issue including divorce. This has been clearly articulated in verse 2:228 which states that despite men having been assigned the additional responsibility (daraja) of physically and financially securing their wives, women enjoy legal parity with men on grounds of equity and fairness (wala hunna mislul-lazi alai hinna bil ma’roofi walir-rijaali alai hinna darajatun).
Such unambiguity in the egalitarian dictums of the Quran makes it impossible for anyone to imagine that the most conscientious follower of this Book – the Prophet – could ever have gone against it. Indeed, the Prophet categorically told his people, “I follow only what is revealed to me” (6:50). The Quran even mentions a prospective statement of the Prophet in which he laments: “O my Lord, my people accepted this Qur’an only to abandon it (later)” (25:30).
These verses establish the rule that insofar as Islamic law is concerned, no source – be it hadees, ijma or qiyas – can override the Quran. In other words, all sources of Islamic law are subservient to its primary source, the Quran. In light of the irreproachability of this axiom, the authenticity of any juristic statement or source that contradicts the Quran in letter or spirit should be re-examined, and its context re-investigated.
The AIMPLB should realise that any attempt to impose sectarian fatwas on the Muslim masses would amount to undermining the textual supremacy of the Quran. But it does not seem to be overly concerned about prioritising the gender-just provisions of the Quran over medieval interpretations of Islam. In para 46, as if to justify its own patriarchy, the board makes the shocking assertion that “India is a patriarchal society, and therefore personal laws of all communities are aligned with the patriarchal notion…”
Earlier, in para 19, the board had argued that the Supreme Court cannot test the constitutional validity of personal laws as they are protected under Part III of the Indian constitution.
In other words, the board expects India’s highest court to legitimise the patriarchy it wants to perpetuate in the name of Shariah! One wonders if this attitude stems from arrogance or naiveté. Either way, the members of the board seem to have lost sight of the fact that they do not enjoy any special privileges by virtue of their self-conferred status as the protectors of Muslim shariah in India. Their interpretation of the personal law is just another opinion in the market place of theological hermeneutics which, in the Indian context, will be rejected by the Supreme Court if found to be not in consonance with the Quran and the constitution.
For this reason, the AIMPLB is wrong in arguing (in para 38) that the Supreme Court cannot import its own views while dealing with religious scriptures or beliefs, and that it should look to the sacred religious books whenever confronted with religious issues. But which interpretation or translation of sacred religious books should the court look to? For instance, in the case of the Muslim personal law, should the court blindly accept the Deobandi interpretation of triple talaq when it is neither in line with the values of the Quran nor the Indian constitution?
The board must understand that Article 141 of the constitution upholds the finality of the Supreme Court’s interpretation of any law in India. And as the phrase ‘Muslim personal law’ forms part of an Indian law called the Muslim Personal Law (Shariat) Application Act, 1937 [PDF], not only does the Supreme Court have the right to interpret its correct meaning but to also make its interpretation enforceable throughout the territory of India in accordance with Article 142 of the constitution.
It goes without saying that the court will listen to, consult and go by the views of progressive Islamic scholars to arrive at the correct interpretation of Muslim law which satisfies the egalitarian principles of both the Quran and the Indian constitution. The Quran because it is the primary source of the Muslim law which is sought to be interpreted. (Other sources will be considered, but only when they do not contradict the Quran in letter or spirit). The Indian constitution because the Muslim Personal Law (Shariat) Application Act, 1937 happens to be an Indian law.
The sooner the AIMPLB internalises this truth the better.