Divorce: A buyer-seller transaction

To put it bluntly, it is the ‘purchase’ of divorce when the woman has to forgo all to end a troubled marriage. Khula is just that. What ensues, in most cases, is humiliation and the lifelong struggle for bare necessities. Raising children as a single mother is by no means an easy feat. Contrast this with the provision for men, the contentious system of oral triple talaq, which the All India Muslim Personal Law Board (AIMPLB) recognises, one has to simply utter the magic word thrice.That too, in just one sitting. “Talaq, talaq, talaq.” An extension of this application: It could be over the phone, email or even Whatsapp. Voila! The marriage has ended. No questions asked. God bless technology.
The misuse of these provisions continues with its victims being Muslim women. When a woman opts for khula, she has to forgo her meher, or dower. It is a sum of money, or its equivalent in jewellery, which the she is promised at the time of nikah, the solemnisation of marriage. It is a cushion which she expects will break her fall if marital relations turn sour. She saves it in case “qubool kiya” becomes “naqaabil-e-qubool”. But khula comes with a catch: the husband has to grant it. More often than not, it is denied. As a result, the woman either seeks the help of a scholar of Islam or approaches courts of law. While the former involves a dominant male perspective of marital matters, the latter is a long drawn battle and involves resources.
In a recent case involving a couple, both from well-known and well-connected families from the city, the woman sought khula after a prolonged struggle with the husband. The husband refused to grant the divorce.
The ulama, or Muslim clergy, were reluctant to intervene as the husband was a man of means. Now, the woman is left to fend for herself with little or no support from her immediate family. Ripples were felt within the community. But this is just one story. The issue becomes acute in middle class families and worse towards the other end of the social spectrum.
What is conspicuous in many such cases is the absence of arbitration as a legally binding clause on the couple in case of marital discord. Acknowledging the misuse of talaq laws, mainly by men, and as a reformatory measure, the AIMPLB sought the opinion of various scholars and activists across the country. This resulted in the drafting of what the board calls a “model nikahnama”.
It covers crucial aspects of arbitration so as to give the woman her due. But while this document was released years ago, it is not in use in Telangana and Andhra Pradesh. Here it is the nikah proforma, known as the siyahnama, composed during the Asaf Jahi period by Maulana Anwarullah Farooqui, the founder of the Islamic seminary Jamia which is in circulation. Lawyers specialising in family and Muslim laws and women’s rights activists believe that it is time that this arbitration clause be inserted into the siyahnama. As a natural consequence, the Arbitration Act will come into play, they argue.
The pressing need for the insertion of this clause comes in the failure of the Darul Qaza, the arbitration centre set up by Islamic scholars, to resolve marital disputes, which comprise roughly 80 per cent of the recorded annual cases. Many women who have approached the institution narrated that the mediators and counsellors had failed to suggest a mutually agreeable solution and that they were forced to approach the courts. In the event that a sensible solution was proposed, their former or estranged husbands believed that it was not binding on them.
Compounding the problem is the fact that women working in the capacity of Islamic scholars and jurisprudence specialists, in comparison with their male counterparts across the country, are few and far between. To buttress this point, it is pertinent to point out that the Darul Qaza is run primarily by men. Moreover, the representation of women in the 350 member AIMPLB itself is just over seven per cent. This highlights the largely absent female perspective in religious matters. There is a need to address this problem immediately.
Divorce becoming a transaction between a seller and buyer is a sad commentary on the state of affairs of the community. In the face of this, it is imperative on the AIMPLB that it takes a principled but radical stand and sensitises the ulama on women issues. For, before it lies a mammoth task. That of changing deep-seated male-centric attitudes.