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The Supreme Court had recently issued notice to the government on a petition submitted by Zuleikha Bi of Shahdol, Madhya Pradesh. She had married Mohammad Fazal in 1989 when she was 20 years old. In 1991, when he remarried, she had refused to live with him. Maintenance was granted to her in 1993 at Rs 400 per month. Soon after, he sent her a talaqnama and moved the court for cancellation of maintenance. The Madhya Pradesh high court granted Fazal's application in 1996. The woman then petitioned the Supreme Court asking it to declare illegal the practice of polygamy and triple talaq in the light of personal rights and human liberty guaranteed to all citizens under articles 14, 15 and 21 of the Constitution. She asked that Article 32 be read with sections 13, 14, 15, 21 and 142. The application further stated that custom and usage of polygamy and extra-judicial divorce allowed to be practised by the Muslims was violative of fundamental rights guaranteed to all citizens.
Shah Bano, Zaitun Bi, Shakeela Parveen, Noor Sabah Khatoon and now Zuleikha Bi. The list of of Muslim women who have approached the courts for redressal due to the scourge of triple talaq and multiple marriages is growing. The fact that Islam has given the most liberal gender rights becomes clear to anyone who has goes beyond these heinous practices and tries to understand the spirit of the religion. We read in the Koran repeated injunctions that women and men have equal status before Allah; whatever is decreed for men is equally applicable for women. We read that Islam is the first religion to have lifted the woman from her abject pre-Islamic status to one in which her right to inherit property is clearly defined.
So far as polygamy is concerned, Surah Nisa (4:3) is regarded as the Koranic sanction for the same. It states that in the case of orphans (girls) men may marry two, three or four but if they feel that they cannot do justice then only one. Section 129 of the same Surah further states the psychological truism that you (men) are never able to be fair and just between women even if may be your ardent desire. The implication of this caution has been explained by Maulana Azad in his magnum opus translation, Tarjumanul Quran: No matter how desirous you may be but it is not within your power to do full justice (adl) to more than one woman. Because the natural inclination of your heart is something which you cannot help. It will impulsively incline more towards one than the other. Under no circumstance should you show preference to `one' and let the `other' hang in mid-air. This will result in the `other' being neither divorced nor widowed (so she can make other arrangements), nor will the husband fulfil his duty and give her what is due to her as a married woman.
The Koranic intention vis-a-vis polygamy is clear. Men have not been stopped from the practice but its condition has been made so difficult that no flesh and blood human being can honestly say that he is capable of fulfilling it. In pre-Islamic Arab society there was no restraint on the number of wives a man could marry. Islam introduced the concept of restraint; but what it gave with one hand it took away with the other. In this Surah as well as several others, it also states that Allah is merciful and forgiving to his creatures if their treatment of women is on principles of adl (justice) and masawaat (equality).
In the report entitled Voice of the Voiceless which ensued from the public hearings of Muslim women, certain recommendations had been made which were directed to the state, civil society and to the Muslim samaj. These included education and poverty alleviation, writing down the Muslim law, standardising the nikahnama etc. Specifically with respect to polygamy, it was stated that some Islamic countries prohibit it and many strictly control it through courts of law and administrative bodies. In South Asia, countries like Pakistan and Bangladesh require that all matters of extra judicial and arbitrary divorce, and second and subsequent marriages be submitted before an arbitration council. They also require written permission of the first wife before a second marriage is contracted.
A while ago, the Muslim Personal Law Board (MPLB), a body of over 150 Muslim clerics from all over the country held a meeting in Delhi on the genuine problems of Muslim women and their solutions in the light of the Sharia. This meeting was the first in recent history when Muslim women and maulanas sat together to discuss the issues of marriage, divorce, mehr, maintenance, in an effort to hammer out some solutions. It was a meeting which revived the traditions of pristine Islam when women used to discuss their problems with the Prophet. Later, the four Khalifas - Hazrat Abu Bakr, Hazrat Umar, Hazrat Usman and Hazrat Ali - were accosted and questioned by women.
The beauty of Islam was that the humblest of the believers had the freedom to question and sometimes convince even the great Caliphs. In the MPLB meeting Qazi Mujahidul Islam Qasmi, chairman of the Board, listened to them for two days. At the end, among other things, he said that three talaqs in one sitting were haram (forbidden) and gunah (sin). So far as polygamy is concerned, his view was that the most important Islamic injunction is faithful adherence to adl, which is a prerequisite to a second marriage. In the declaration which emerged from the conference there was general agreement that Muslims should be mobilised in an effort to eradicate social evils which have become rampant in the Muslim samaj.
Interventions such as the Zuleikha Bi petition are not isolated instances nor likely to remain so. These have become a recurring phenomenon. We cannot hide behind the slogans of `impinging on the freedom of religion' and compelling the Muslim community to do away with Sharia. No one has suggested doing away with anything; the only thing which needs to be done away with is the malpractice by its adherents which gives Islam an anti-gender image.
(The author is a founder-member
of the Muslim Women's Forum)
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