By Rohit Srivastava
Parliament should ban the "heretical" triple talaq and those who resort to it should be jailed for three years, former Union minister Arif Mohammad Khan, a prominent liberal Muslim voice who has all along fought against Islamic fundamentalism, has said, even as he accused the government of not following the spirit of the constitution in its attempt to enact a Uniform Civil Code (UCC).
Khan, the author of "Text and Context -- Quran and Contemporary Challenges" and who broke ranks with former prime minister Rajiv Gandhi in 1985 over the government's capitulation to the Muslim clergy on implementation of the landmark Shah Bano alimony judgement by the Supreme Court, also termed the All India Muslim Law Board (AIMPLB) "at best" an "NGO" that could had not authority to speak for the entire community.
"There are more than five judicial verdicts that have practically banned triple talaq. Mere outlawing this undesirable practice is not going to help. Either Parliament should enact a law to make triple talaq a punishable offence or this practice should be viewed as violation of the judicial verdicts and treated as contempt of court," Khan told IANS in a wide-ranging interview.
"The Personal Law Board does not dispute the fact that the second Caliph, Hazrat Umar, who had allowed triple divorce, used to award 40 lashes to such persons. Today, lashing is not possible, so we can provide for three years' imprisonment for persons who resort to this heretical mode of divorce. Then, the choice would be either to wait for three months as the Quran prescribes or go to jail for three years. I feel confident that such a penal provision would effectively put an end to triple talaq," Khan maintained.
The AIMPLB, in its "Compendium of Islamic Law", considers triple talaq as 'bidat' (innovation), but it is vehemently supporting it.
On this contradiction, Khan noted that the Compendium, on page 72 section 13 says: "Talaq bidat is prohibited, but if a person pronounces such a talaq, it will be effective, while the man will be guilty of a severe sin."
The Board "likens triple talaq to murder and they say that killing is prohibited but if it happens then it happens", and punishment for killing in Islam is death, he added.
"On the other hand, the man who resorts to triple divorce often marries again while the divorced woman is still going through 'Iddat' period," Khan said.
He also noted that there is no consensus on triple talaq among different Muslim sects. "Different schools of (Islamic) jurisprudence radically differ from each other on various issues. On triple talaq there is no unanimity. The Ahle Hadith and Fiqh Jafria do not accept three pronouncements of talaq in one sitting and consider it as one pronouncement," he said.
On the UCC, Khan said there was a lack of serious political will to achieve it. It had become a political slogan "and we simply do not try to understand the spirit" of article 44 of the constitution.
"When the constitution says that the State shall endeavour to secure a Uniform Civil Code, it means creating an environment conducive to its enactment. It implies both an informed public opinion and a robust sense of security. And finally, widespread consultations are necessary to let people know that the objective of a UCC is to ensure gender justice and equality in marriage and not to interfere with any religious obligations or practices," Khan maintained.
As for the AIMPLB, he described it as "a body of clerics generally drawn from madrasas and at best it can be described as an NGO".
"Every law needs an enforcement agency and the AIMPLB views itself as that agency. It gives them a sense of power and domination over the lives of others which they exercise through the instrumentality of fatwas," he added.
The clerics as a class have always been obsessed with law. Instead of promoting Islamic values like God-consciousness (taqwa), compassion, charity and justice, they got together to protect the laws, he added.
The AIMPLB is dominated by Sunni Muslims with representatives from other sects as well. The majority of Indian Sunni Muslims follow 'Hanafi' jurisprudence and this reflects in its legal standing as well.
However, its "claim to be the sole representative of the community is not based on any election, but on its capability to manipulate the government to accept its interpretation of Muslim law as the only interpretation," Khan contended.
"They sustain themselves on the legitimacy conferred on them by the political establishment," he added.