Triple talaq: Farha Faiz's fight for Muslim women's rights may create constitutional history - Firstpost
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Triple talaq: Farha Faiz's fight for Muslim women's rights may create constitutional history

Besides the law manuals and bare-acts neatly placed on the shelf, are stacked DVDs of the BR Chopra-directed film Nikaah. Farha Faiz picks one and asks her daughter to play it. Actor Tanuja’s voice is heard, as she talks about the “numerous sacrifices women make, only to be sacrificed at the altar of the male ego”.

Nikaah, which was released in 1982, had to face more than 30 cases on its release, something that was expected as the film touched upon the very sensitive issue of 'triple talaq'. The film is counted as one of the biggest BR Chopra hits and is lauded for splendid performances by Raj Babbar, Salma Agha and Deepak Parashar. But in spite of the award-winning performance of the three actors, the film is remembered more for its story, which posed serious questions about Muslim personal law and its support for the practice of triple talaq.

It was 1980 and Farha Faiz, now a Supreme Court lawyer fighting against the provision of triple talaq, was an eight-year-old witnessing the making of an epic drama. Her maternal uncle Omar Khayyam Saharanpuri was roped in by BR Chopra as advisor on religious matters in the film and the issue of talaq was discussed at home on a daily basis.

“He was contributing heavily to the story, fighting the hardliners who did not want the movie to be made. I was young but could understand the agony he was going through. Right from the title of the movie ‘Talaq Talaq Talaq’ which had to be changed to Nikaah due to various pressurse, he had to fight many battles," recalls Faiz.

Farha Faiz. Image by Naresh Sharma/Firstpost

Farha Faiz. Image by Naresh Sharma/Firstpost

In 1937 The Muslim Personal Law (Shariat) Application Act was passed which made provision for the application of the Muslim personal law (Shariat) to Muslims, which among other things regulates the personal matters of the community like marriage and its dissolution.

According to this 1937 act, in matters of personal disputes (of the Muslim community), the state was not allowed to intervene and a religious authority was instead given power to pass judgments. This immunity allowed Muslim men to divorce their wives by pronouncing talaq three times in succession. The practice has been outlawed in many Muslim majority nations, but is permitted in India under the 1937 act.

In October last, the Supreme Court of India decided to register a PIL suo motu titled ‘Muslim women’s quest for equality’ on the gender discrimination women face under the Muslim personal law. The quest for equality among Muslim women got a new lease of life.

While the SC took up the case, many Muslim religious bodies opposed the move as according to them court could not adjudicate on Muslim personal laws. Jamiat Ulama-i-Hind, a Maharashtra-based organisation argued that the minority religious community’s personal laws draw authority from the Quran and not the Indian constitution; hence the court’s interference was uncalled for.

Fiaz told Firstpost that for a long time, she wanted to file public interest litigation (PIL) in this regard and last year, when the Supreme Court took cognisance of the issue, she filed an application requesting to be made a respondent in the case. She was made a party in the case on 28 March after she filed a detailed response in favour of Muslim women before the Supreme Court.

In her application, Faiz wrote that she was born and brought up in a Muslim family and is well aware of the principals of Islam. Her father was a Quran Hafiz (one who has orally remembered the entire Quran) and still “she is of the firm opinion that constitutional rights - legal as well as fundamental - are above religious rights”. This forms the basis of her appeal that personal laws too should be regulated by the courts and should not be the monopoly of some ‘registered’ organisation.

Taking on the All Indian Muslim Law Board (AIMLB) which is opposed to any interference of the courts in personal law, Faiz in her application, filed in the apex court states, “AIMPLB is running their own institution namely Darul–Qazis spread all over the country and Qazi and Naib Qazis (as appointed according to the Kazis Act 1880) are administrating the Daru–Qaza in the name of arbitration and Shariat. The members of AIMLB considers themselves the supreme judiciary of the Muslim community in India”.

Stressing on why she is so much against the AIMPLB, she states, “The AIMPLB published a book, Majmua Qwanene-e-Oslami. This book prepared in the manner of a constitution is divided into chapters and sections. According to this book, a Qazi will judge the matters of marriage, divorce, inheritance etc and the judgment given by Qazi will be binding. Some sections are strongly objectionable and seriously injurious for the welfare of the Muslim women and are in total violation of the law."

Faiz in a written submission to the Supreme Court asked for an order to “restrain the AIMPLB from misusing the platform of media and creating a harsh communal atmosphere” as she felt that AIMPLB “was using the media to discredit women who had approached the apex court”.

“The issue of talaq has been very close to my heart as I have told you how my maternal uncle was associated with a film which was perhaps the first major social commentary on this very important issue. So when I heard that the apex court has taken suo moto cognisance of the issue, I was very glad," says Faiz.

She adds, “But, when I read in a newspaper that Jamiat Ulama-i-Hind had filed writ application against it, I was shocked because Jamiat Ulama-i-Hind had supported women in the past. So immediately I filed my application in support of women and to assist the apex court.”

Talking about her opposition to the religious groups who are at loggerheads with the court for interfering in the personal law Faiz says, “Actually they say that court can't interfere in Muslim personal laws. I feel that the actual custodian of a law is ‘court of law’ like the High Court and Supreme Court of India and it can interfere in any matters where there is a gross violation of individual rights. But they said that Supreme Court can’t interfere. I was shocked to hear this."

She adds, “See the problem is that AIMPLB believes that they are the ultimate authority on personal laws. They feel that they know the Shariat best and their interpretation should be final. They feel that what other people understand is wrong and they want to keep the court out of it. My point is that how can we say that the biggest court of the land is incapable of dealing with religious matters and a registered body is so much more capable of deciding what is right and what is wrong?"

Argue by Firstpost

Faiz, who belongs to a family of ‘progressive’ Muslims, feels that it is lack of understanding and deliberate misinterpretation of the teachings of the Holy Quran that is source of all ills. “The Quran is a guide for life and deals with every aspect of our lives. An educated person can understand and interpret it. Why should someone have monopoly over its interpretation? We can adhere to it in our lives as we interpret it. Maulvis' and mullas' work is to administer mosques and see that space is used to impart teaching of Quran and Islam and not regulate our personal lives," says Faiz.

Faiz started working for women's rights when she was just 21. For more than two decades she has been working for the rights of women belonging to all communities; “especially those women who are not so well off”. She feels that there is a great need to reform the laws governing personal space so that “the injustice caused to women is stopped”.

Dwelling into what the real provision of talaq is and how it was misinterpreted Faiz says, “See, the Quran in detail addresses the question of how to live a life of righteousness. It is very exhaustive. What cannot be understood from the Quran can be understood by following the life of the Prophet, who was the messenger of the Almighty. How he dealt with problems is a guide for us. Hadish carries the lessons from his life and is a guide when we fail to get answers from the Quran.”

She adds, “In the context of talaq, the Quran itself has lengthy verses. It has explained it quite elaborately. According to which, when a man pronounces divorce to his wife, it will be counted as only one divorce. And the wife will start the iddat period at her husband’s house only. Following which two persons, one from the man’s family and other from the woman's, will be appointed as arbitrators and try for a reconciliation. In the course of iddat, if a husband realises that he has been wrong and feels regret, he can withdraw the divorce".

If this was the case, then how did triple talaq become so prevalent? Faiz explains, “The beginning of triple talaq can be traced sometime during the life of Hazrat Umar. But he also did not approve of it and called for the punishment of 40 lashes to anyone who did that. Ironically, we forgot the teachings of the Quran and just started following a practice prevalent during the lifetime of one Khalifa."

What larger purpose does Faiz want to serve through her fight against triple talaq? Faiz says her focus is “holistic”. She wants to reform all personal laws like Shariat. “It was enacted in 1937 when the British were ruling us. They, as a policy did not want to interfere in our religious affairs. So many wrong practices that should have been opposed and stopped, continued to exist. But that does not mean we shall continue with them even now. The British were an alien power. They were just concerned about their empire and not its people. But the same cannot be expected in free, democratic India," says Faiz.

She adds, “Like the issue of talaq, there are other areas like inheritance law, which is important and should be made clear. This right was given 1,400 years ago. But we don’t know about it."

Of why she want personal laws to be regulated by courts Faiz says, “These are civil matters, so we start remembering Shariat. But then in the Quran, criminology is also very well defined. Like there is a clear instruction of stoning a person to death for rape. Will we follow that while deciding a criminal matter? No, then why do we leave civil matters, that affect the lives of people so intensely, to a 'registered body'? We never raise a cry when the Quran or Shariat is not followed in criminal matters. But when it comes to civil matters, we raise the flag of personal law and religious independence. This is not acceptable."

What outcome does she expect from this case? “I believe that this will be a landmark and defining case in many respects which will ensure equality of women," says Faiz. "It will lead to the formation of a constitutional bench that will create history and will usher in a new era of equality for women."

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