Time to rise

The Bombay High Court has recently set aside the divorce case of a Muslim man named Ismail Shaikh. The verdict pronounced the separation as unjustified and ordered Shaikh to pay maintenance to his wife, Parveen Ismail Shaikh, under section 125 of the Criminal Procedure Code. According to the Muslim Women (Protection of Rights on Divorce) Act 1986, a Muslim husband is required to pay maintenance for about three months, called the iddat period, and not thereafter. Shaikh’s talaq was held invalid by the Bombay High Court although he had pronounced it in the presence of a qazi and two witnesses and had made a talaqnama, which was later sent to Parveen. While a lower court had denied Parveen maintenance, the Bombay High Court ruled to the contrary.

A year ago, in another case, the Supreme Court had ordered maintenance to Iqbal Bano, who had been denied it by the Allahabad High Court in an earlier ruling. In 1978, a Supreme Court verdict that granted maintenance to Shah Bano of Indore created quite a stir in the Indian Muslim society. Muslim leaders protested that the ruling was in conflict with the Muslim personal law, which asserts that maintenance will remain in effect only for the iddat period. The agitation and the successive pressure from Muslim leaders led the then Rajiv Gandhi government to pass a bill in 1986 that nullified the verdict passed in the Shah Bano case.

The decision of the Bombay High Court, however, cannot be questioned. It has violated neither the 1986 bill on Muslim women, nor the Muslim personal law. It ordered maintenance, citing the talaq as legally invalid. It would be relevant here to study the rules of talaq and the different interpretations of maintenance under Muslim law.

It is commonly believed that a Muslim husband can easily divorce his wife by just pronouncing talaq three times. As the Sunni Islamic procedure is predominant among Muslims in India, the Sunni system of triple talaq is often thought to be the rule. But this process does not result in a proper talaq. To the Shia jurisprudence, divorce is a decision, not a procedure, and so the practice of triple talaq is discredited. According to Shias, triple talaq is the custom of ignorant people, forbidden by Mohammed, and held as unlawful.

Among the four schools of the Sunni sect, the Hanafi, Maliki and Shafayi accepted the triple talaq system, but the Hanbali school believed this form of divorce to be sinful. It changed its position afterwards but did not accept triple talaq as the final statement on the issue of divorce.

Countries like Turkey, Tunisia, Algeria, Iraq, Iran, Indonesia and Bangladesh have banned the triple talaq system. Unfortunately, it is still permitted in India. In recent times, the All India Muslim Women’s Personal Law Board had tried to prohibit instant talaq. According to the board, the Shia nikahnama does not approve of triple talaq or instant divorce. The All India Muslim Personal Law Board had earlier come out with its own model nikahnama, which discouraged the triple talaq system. After the Bombay High Court ruling, the board has become vocal about this once again.

Although the practice of instant divorce has met with resistance, the issue of maintenance remains unquestioned, in spite of the fact that it is difficult to explain the rationale behind the stipulated three months’ maintenance.

Islam recognizes three kinds of maintenance. Firstly, there is maintenance as ownership — animal-owners must maintain the animals in their care. Secondly, one has to maintain one’s natural rights — men have to bear the expenses of their children. Parents are to be cared for by their grown-up children if the former are poor or infirm. Children have natural claims on their parents, who have brought them into this world. Similarly, the parents have a claim on their children, whom they begot.

Lastly, a husband has to maintain his wife. The basis of this kind of maintenance is neither ownership nor any natural right, as in the previous two cases. Nor is it conditional on any need, pecuniary or otherwise. Islam does not have a clear standing on the maintenance of women after divorce. Muslim clerics in India explain after-divorce maintenance with reference to a Quranic verse, which says that as the husband initiates divorce, he is obliged by religious law to pay his wife maintenance. This is a duty of the righteous.

In 1995, the Dhaka High Court of Bangladesh had ordered Hafizur Rahman to pay maintenance to his divorced wife, Samsun Nahar Begum. The two judges presiding over the case, Mohammad Golam Rabbani and Syed Aminul Haque, had stated that maintenance is applicable not only for the iddat period, but also for the rest of Samsun Nahar Begam’s life, unless she marries again. They also stressed that the ruling is in accordance with the will of Allah, as expressed in the Quran, and as such, should be understandable to the public.

Indian Muslim clerics argue the issue of maintenance from a perspective different from that adopted by their counterparts in other countries. For them, Islam regards the marriage bond as a contract, and if the contract is violated, no party is liable to give maintenance to the other. But they must also be aware of the Quranic verse that asks men who die or divorce their wives to arrange for the maintenance of the latter for a year, provided that they stay within the same household.

There is little doubt that Muslim divorce and maintenance laws in India have remained unfavourable towards women. One reason why the clerics are eager to uphold the triple talaq procedure is undoubtedly that it serves the interests of men. They insist on it in the name of the Quran, which, however, does not have any such stipulation. Muslim clerics had protested vehemently against the AIMWPLB when it was set up. Coming from the supposed wise men among the Muslims, such a parochial mindset does not augur well for the future of the largest minority community of India.