AJMER – In India’s Islamic family law codes, a man can divorce his wife via email, or from another city without her knowledge. By simply saying the “talaq” (the Arabic world for divorce) three times, he can end his marriage in seconds and kick his wife out the same day.
Being so simple, divorce can sometimes happen accidentally, as in Aftab Ansari’s case. After a nasty marital fight, Mr. Ansari unknowingly muttered the word three times in his sleep. A waking nightmare followed.
His wife, Sohela, heard what was said. Knowing that he hadn’t actually divorced her, but upset nonetheless, she told a friend about it the next day. People in the village gossiped about it, and the matter soon reached local Islamic religious leaders. They decreed that divorce had taken place and tried to separate the couple by force, even though both husband and wife wished to remain together. When the couple defied the ruling, they were threatened.
The case is an extreme example of the tension building in India’s pluralistic democracy over a delicate issue: Where does a religious freedom end and the rule of law begin?
Having given Muslims the right to follow their own religious laws in the Shariat Application Act of 1937 (including polygamy and triple talaq), India’s courts are now rethinking this delegation of authority. Meanwhile, among India’s Muslims, women are becoming educated and starting to demand their rights from a grudging religious establishment.
Islamic courts challenged
Last year, the Supreme Court of India ordered that the Islamic court system, known as Dar-ul Qazas, be examined and possibly dismantled in response to a public-interest lawsuit claiming that the religious courts are subverting the judicial system.
The complaint and continuing inquiry began after a ruling by a village-based Islamic court in a rape case caused a national furor. The court ruled that a woman raped by her father-in-law had effectively divorced her husband by having relations with another man and must marry the rapist. The most powerful Islamic law organization in the country, the All India Muslim Personal Law Board (AIMPLB), supported the decision and even alleged that the woman lied about being raped.
The AIMLB has no legal standing and is simply supposed to advise people on Koranic Law. In practice, though, because it runs most of the Islamic courts, its decisions are highly influential. As the Indian state court system is usually highly inefficient and slow, hiring lawyers and waiting years for a case to be heard is often out of the question for poor Muslims. Islamic courts are a cheap, fast option used for small disputes.
In poor or remote communities, there are no courts at all, and the local cleric or village council — knowledgeable or not of the constitution or Koran — serves as judge and jury. The state and its systems are so distant from these villagers that verdicts announced in the local mosque must be followed.
Such was the Ansari case. Not accepting the judgment and fearing the wrath of religious leaders and their fellow villagers, they had their marriage registered in court.
A legal question
India is the only country in the world where triple talaq divorce is legal; even stricter Islamic countries have abolished it. The Koran specifies that a waiting period of one month is required between each utterance of “talaq” — allowing tempers to cool and consequences to be considered.
It was in the 1800s that a British colonial court allowed a triple talaq all at once without the wife being present. The ruling somehow stuck even after India’s independence in 1947.
“This had become the tradition. Yet how much did the (colonial) council understand Islamic law?” asked Bombay High Court advocate Nilofar Akhtar, who specializes in family law.
Islamic marriage is solemnized with the signing of a “nikahnama,” a marriage contract prescribed in the Koran.
When the AIMPLB drew up a model nikahnama this year, women’s groups were outraged. They had long sought revocation of the triple talaq, as well as making the payment of alimony mandatory and giving women the right to initiate a divorce. None of these is included in the document, which added to the confusion by advising that triple talaq be avoided “at all costs unless circumstances become highly compelling.”
Mrs. Akhtar and other advocates made another version of a model nikahnama, one much more liberal than the AIMPLB’s. “Anyone can draw it up… It is actually a personal document in which you can put numerous stipulations. There is a great difference between the AIMPLB’s nikahnama and mine.”
In a nikahnama, a bride can demand larger “mehr” (a dowry given to her by her husband) and even the right to divorce. However, many Muslim women in India are unaware of these rights. But thanks to a new initiative from the International Federation of Electoral Systems (IFES), a Washington-based non-profit organization, this is slowly changing.
In a house built behind the Sufi shrine at Ajmer in Rajasthan state, 50 Muslim women are learning their Koranic and constitutional rights. K.D. Khan, a lawyer who once ran the famous shrine, urges the women to make sure their daughters approve of the man they will marry and write each daughter’s nikahnama so that she can divorce and get alimony.
“Why aren’t women allowed to give talaq?” Mr. Khan asked a crowd. “They are allowed to get married, aren’t they?” They titter, young girls and old women whispering among themselves.
“These programs are in great demand because few women know these laws, and many are illiterate and have not read the Koran,” said Shagufta Khan, coordinator of the program in Rajasthan.
IFES has conducted more than 70 such sessions in Rajasthan and the southern state of Karnataka. The information sessions are not just for women: IFES has run many for men and Islamic religious judges.
How does the Washington group deal with opposition? IFES contacts all orthodox groups and clergy and provides a syllabus of what will be taught. It also hires activists known to the community. Since nearly all this taught can be found in the Koran or the Indian Constitution, its hard to object to it.
But program director Suraiya Tabbassum knows she can’t push too far. The women “can’t change overnight,” she said. Touchy topics such as polygamy are often avoided in the interest of avoiding discord.
Change may seem slow but Mrs. Tabbassum says it is happening: “I foresee the triple talaq will be out in the near future. Everyone us shouting about that.” In a survey she conducted in India Muslim communities, most male and female respondents agreed that the system of triple talaq could not be justified.
Other signs of equality have come as well, many from the camps themselves and the information women have gleaned there.
Informed that they have the right to ask for the dowry written into their marriage contracts, many women participants went back and asked their husbands to give it to them that very night. Most got jewelry and some, even cash.
Mrs. Tabbassum told of one women who examined her marriage contract to find she had been promised just two cents as mehr. Undeterred, she asked for it immediately and bought herself a couple of tea.
By Erica Lee Nelson. Photographs by Sebastian John.
Published in The Washington Times, 2006.