Talaq, the way women want it
Mohammed Wajihuddin, TNN 30 August 2009, 03:43am IST
When Saleem Sheikh left his wife Farheen for another woman a few months ago, he thought he would get away with it. As an NRI in Dubai he had a handy anonymity to help him move into a new relationshipwithout ending his marriage.
For Farheen it was much harder to endure the pain of suddenly being a single mother in Mumbai and to deal with the clucks of sympathy from family and friends. Sheikh’s complacency stemmed from the talaq (divorce) rules under Muslim law that allow men to pronounce talaq but allows women only to seek khula (dissolution ofmarriage but where the husband’s consent is mandatory). Farheen knew that Sheikh would never reply to the notices served on him.
This would have ended as yet another footnote in the saga of disadvantaged Muslim women trapped in an unfair matrimonial contract, but for a timely intervention. Farheen paid a visit to advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association. Akhtar studied nikah-nama and saw that there was a provision for talaq-e-tafweez (delegated divorce).
This meant that the husband had delegated his wife the right to get a divorce if: a) he treated her with cruelty, b) he took a second wife, c) failed to pay her maintenance for six consecutive months, d) didn’t co-habit even once in six months. Sheikh had clearly failed to honour the contract. Farheen managed to get her freedom and is happily married to another man.
The little-known provision of delegated divorce is coming to the rescue of Muslim women all over the country. “If the provision of talaq-e-tafweez is popularised, divorces among Muslims will fall sharply,” says Akhtar, who works out of a tiny, tome-lined office in Malad. She is fond of referring to Mumbai-born scholar Abdullah Yusuf Ali’s famous commentary on the Quran, in which he says that calling a Muslim marriage a ‘civil contract’ is inadequate because it is part of the Sunnah (the Prophet’s traditions). Of all the permissible acts, Allah hates talaq the most.
Sayeeda Naaz was a divorced businesswoman when she became friends with a regular visitor to her furniture shop in Mahim, one Altaf. He boasted about his wealth and the flats he owned. Naaz said yes when he proposed but ensured that delegated divorce was written into the nikahnama. A few months later, Altaf was exposed. He was debt-ridden and began to harass her for money. Naaz quickly got a divorce and moved on.
Although talaq-e-tafweez is not mentioned in the—nor for that matter is the infamous triple talaq—the century-old Muslim Personal Law in India allows women to exercise delegated divorce. This law was introduced by Imam Abu Hanifa, an eighth-century tabiyun (one who had met the companions of the Prophet) who founded one of four schools of , the Hanafi school of Islamic jurisprudence.
Pakistan’s Sharia court too follows delegated divorce. When the Mumbai-based scholar Qutub Jahan Kidwai married a Pakistani a couple of years ago, Lahore’s Sharia court automatically granted her this right.
“I didn’t have to fight for it,” says Kidwai, who is happily married. “Imam Abu Hanifa reached the conclusion through qayas (analogy) that Talaq-e-Tafweez was needed to reduce the rate of talaq among Muslims,” says reformist Islamic scholar. “Unfortunately, orthodox ulema have stonewalled attempts to popularise it.”
Nobody knows this better than Uzma Naheed of the Iqra Education Foundation. A member of the powerful All-India Muslim Personal Law Board, Naheed faced the fury of the male ulema when she suggested that delegated divorce be included in the AIMPLB’s nikahnama.
“They said women would misuse this right,” Naheed says. “I argued that women are emotionally attached to the families they marry into and would not use it to threaten men. After the ulema refused, I, with help from a few scholars, released our own model nikahnama.”
Naheed’s nikahnama empowers women with the right to seek a divorce under several circumstances, including when the husband is a drunkard. Although there are no written rules about the conditions under which a delegated divorce can be invoked, its advocates say it should be used ethically. A wife cannot say that she will divorce her husband if he demands sex, but she can say that she will end the marriage if she is not allowed to bring up the children in the way that she wants.
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