November|December 2004
Don't Drink and Divorce By Dan Morrison
Death at Incirlik By Sara Catania Mind Reader By Sara Solovitch Don't Drink and Divorce Nazma Bibi's husband mistakenly divorced her in a drunken rage. Now his Muslim community in India won't let them get back together. POLICE GUARDS WATCH OVER NAZMA BIBI'S HOME, a two-room thatch and mud hut, set on a tiny plot of land amid 150 other similar dwellings in Kantabania, a village in the eastern Indian state of Orissa. She gets this treatment not because she is a VIP or a star witness in a celebrity trial, but because she is the nation's most famous reluctant divorcée. Nazma's ordeal started last year during an argument with her husband about money. In the altercation, Nazma's husband, Sher Mohammad, an underemployed laborer, decided he'd had enough of her, and shouted "talaq, talaq, talaq," an Arabic-language renunciation that for a majority of Indian Muslims signals an instant, irreversible divorce. That he was drunk and enragedenough to beat his wife, as neighbors looked ondidn't bother the community. For the villagers of Kantabania, Sher's turning to the common demons of alcohol and violence were easy sins to overlook. His inebriated divorce was something else. Neighbors took his renunciation seriously, and they have since used violence and harassment to keep the couple apart. According to the dominant interpretation of Muslim law in Kantabania, and among the majority of India's Muslims, Nazma and her husband can reunite only if Nazma performs "halala" by marrying another man, consummating the union, and then divorcing again. Since there is no provision in Islamic law for a man to remarry the wife he has renounced, she must first become another man's wife. Only then, locals say, can the couple remarry. "I don't want to perform halala," Nazma told members of a fact-finding mission from India's National Commission for Women, an advisory body charged with investigating cases in which women are deprived of their constitutional rights. "I want to stay in my house with my husband." For now, though, she's isolated in her home, the symbol of an issue that has opened up explosive questions about gender, religion, and law among India's 135 million Muslims. INDIA IS A SECULAR STATE, but it's a breed of secularism most Westerners would not recognize. The term "secular" in overwhelmingly Hindu India implies a protection of religion as an institution and of religious minorities and their customs. Nazma's predicament arises from a clause in India's constitution that allows citizens to conduct their personal and family lives under the laws of a religion recognized by the state, as long as those laws don't violate the constitution or other government laws. You can't drive on the wrong side of the road and declare that your religion commands it. But when Hindus, Muslims, Jains, Sikhs, Christians, and Jews marry, most register at their local temple, mosque, gurudwara, church, or synagogue rather than at city hall. When these marriages end, the disengagement usually happens outside the purview of the state. In this system, in a major concession to a sometimes restive and often neglected minority, Muslims may govern their personal lives by Sharia, or Islamic law. Shias and members of some other Muslim sects disagree, but according to Indians who follow Sunni Islam, a "triple talaq" is an irrevocable declaration of divorce. India's courts have issued rulings about Muslim family law, in cases in which litigants claimed that some element of Islamic law contradicted the constitution. But very few Muslims, especially Muslim women, would approach a civil court over a family matter, so the opportunities for courts to interfere have been limited. On the few occasions where the courts have issued judgments, they've often sparked protest. In a 1985 ruling in Mohammad Ahmed Khan v. Shah Bano Begum and Others, India's Supreme Court created an uproar among Muslims by ruling that Shah Bano had a right to financial support after her husband of 43 years divorced and exiled her from their home when he took a second wife. The decision did quote verses from the Koran (Aiyat 241: "For divorced women/Maintenance should be provided/On a reasonable (scale)/This is a duty of the righteous . . . "). But it rested on India's criminal code, which includes a law requiring husbands to pay "maintenance" to their wives, including their ex-wives, until the wives remarry or die. By citing India's criminal code, which applies to all Indians, the Shah Bano decision superseded Muslim law and sparked widespread protests, including a rally by 300,000 Muslims in Bombay. The Shah Bano decision came at a time of growing religious tensions in India, and the ruling Congress party was faced with an angry core constituency. The next year, Rajiv Gandhi's government passed the Muslim Women (Protection of Rights on Divorce) Act, which exempts Muslim men from sections of the criminal code requiring them to pay maintenance. The law stipulates that long-term maintenance for a divorced Muslim woman should come from the woman's immediate family, more distant relatives, or Muslim charities. The husband is required to support his former wife only during iddat, the three months immediately after a divorce. In recent years, however, influential courts have interpreted the Muslim Women Act in ways that have reinforced the Shah Bano decision and have contradicted the intent of the 1986 law. In each case the courts used both civil and Islamic law in their reasoning. In July 2000, for example, the full bench of the Bombay High Court echoed an earlier decision by the Calcutta High Court and ruled that a husband must pay lifetime support to the wife he divorces. The court, which is one of the most prestigious of the 18 high courts that sit just below the country's supreme court, also ruled then that the man should pay all the money within the three-month period of iddat. Recent decisions have also limited the customary use of triple talaq in India, though only for women who have the confidence to take their disputes to court. In 2002 the Bombay High Court ruled that triple talaq was insufficient for a legal divorce, and it required a husband to file a divorce petition in civil court with due notice to his wife. The court also said that a judge should decide whether the husband had shown cause for divorce and whether he had made proper attempts at reconciliation, as prescribed in the Koran. In that particular case, the husband justified his divorce by saying that his wife had insulted him when she asked for maintenance after he abandoned her and their three children to start another family in another town. These decisions and others like them didn't arouse the Muslim backlash that the Shah Bano case did, perhaps because Muslim leaders knew better than to expect sympathy from the Hindu nationalist-led coalition that ruled India from 1998 to May 2004. But the decisions may have stirred the background tension that erupted in Kantabania and that has left Nazma Bibi barricaded in her home. MORE THAN TWO-THIRDS OF INDIA'S ONE BILLION PEOPLE live in rural areas, where personal matters of marriage, birth, death, and inheritance are handled within the community, and where civil authorities are involved only in a crisis. When two men squabble over property, they will likely take it to a community or religious figure rather than to a district official or judge. This holds even more for Muslims, many of whom fear the state's interference in their private lives. For these villagers, the interpretation of a local small-time cleric can have more meaning than a judge's opinion. While divorce is rare among Indian Muslims, the triple talaq is the most common method. This reliance on custom over jurisprudence was evident in Nazma's case. About two weeks after the couple's quarrel in July, as word spread that they remained under the same roof, a group of villagers said they couldn't continue to live together. Sher Mohammad was forced to leave the house and return to his home village a few miles away. In September of last year, the couple went to a nearby town and obtained a legal opinion, or fatwa, from a cleric declaring the talaq invalid due to Sher Mohammad's drunken state. The couple then reunited in Kantabania. Within days, more than 100 people appeared at their home with a fatwa from a different local cleric, declaring the talaq binding. Nazma's husband was beaten. For allowing the couple back into his house, her father was slapped by villagers wielding shoes, a deep insult in South Asia, where shoes symbolize uncleanliness. After the president of the village's Muslim association reaffirmed the unwanted divorce, Nazma filed a complaint with police in October. Fearful of reprisals, she took refuge with a local nonprofit group where her mother worked as an office helper. In November, members of the state women's commission held hearings in the village and declared the couple's constitutional right to live together. This action, and a later fact-finding mission by the National Commission for Women, only solidified local opposition to Nazma's marriage. In December, the couple sought help from a district-level court. A judge issued a ruling that nullified the talaq, citing Sher's drunkenness, but locals refused to accept it. Nazma faced a social boycott: She was denied water from the local pump, the eldest of her four children was barred from school, and her father was blocked from working. Not one villager stood up for her in public. When the couple tried to reunite in Kantabania in the spring of this year, Nazma's husband was again assaulted. A delegation from the National Commission for Women visited from Delhi, 1,000 miles away, and convinced the police to offer protection to Nazma so that she could move back into her father's home. But her husband returned to his parents' home and stayed away. In June, about 6,000 Muslim men from all over the region held a rally outside a local government office. They presented a petition reaffirming the legality of the divorce, reminded the official of the Muslim male's right to talaq, condemned the interlopers from Delhi, and affirmed the pain they felt over the central government's attempted interference. For now, local mores have overpowered the constitutional authorities. In a sign of how volatile this subject is, a Muslim editor at a Bombay Hindi-language newspaper who has championed reforms on the talaq issue was stabbed in August. He said the attack had been incited by the editor of an Urdu-language newspaper that had railed against him in its editorial pages. (Urdu is the primary language of most Indian Muslims.) "You insult the holy Koran," one of the two attackers said. THE SAME TRIPLE TALAQ THAT INDIAN MUSLIMS CONSIDER SACRED is banned in the rest of the Muslim world, including India's closest neighbors, Pakistan and Bangladesh. "No other country in the world accepts triple talaq except India," said Neelofar Akhtar, a Bombay attorney who specializes in Muslim family law. The notion that a man is granted immediate divorce by saying "talaq" three times doesn't appear in the Koran. Divorce as described in the Koran requires three months of attempted reconciliation and arbitration before the couple can split. To divorce, the husband says talaq three times, but each of these talaqs must be separated by a month, and the first two are always revocable. Thus, in most Muslim countries, even the utterance of "talaq, talaq, talaq" is legally counted as a single renunciation that must be confirmed a month later and again a month after that. Triple talaq first entered Islamic law when Umar, the second Caliph of Sunni Islam, a successor to the Prophet, learned that some husbands were using the threat of divorce as leverage against their wives. The caliph responded in 637 A.D. by making the triple talaq a valid, instant divorce. Doing so was his way of declaring, "Don't say it if you don't mean it." Shia Muslims and some Sunni sects hold this to be the caliph's personal opinion, an innovation on the Koran made by Umar without proper consensus, and thus invalid. Ali, who was the fourth caliph of Sunni Islam and the first Shia imam, disagreed with Umar's decision at the time, as did other leading Sahaba, or companions of the Prophet. In India, however, a majority of scholars believe the triple talaq is legitimate. Without the state deciding Islamic jurisprudence, as happens elsewhere in the Muslim world, and without a single civil code for all Indians, matters of Sharia are left to the Ulema, the community of Muslim scholars, most of whom favor the triple talaq. The central government "does not have the authority to ban it," said Uzma Nahid, a headscarf-wearing Bombay feminist and a member of the All-India Muslim Personal Law Board. "It is part of Sharia." But progressives like Nahid are seeking to make an end run around the triple talaq within Sharia law by promulgating a model marriage contract, or nikahnama, in which the groom agrees to transfer to the bride his authority to pronounce talaq, so that she has the final say in voicing their decision to divorce. The signing of a nikahnama before marriage is a Koranic practice, but the content of the document is left up to the bride and groom. Nahid says that conservative scholars of the Ulema have slowly come to acknowledge the misuse of triple talaq as a social problem, and to accept in principle the model nikahnama as a way to diminish its use. But local custom trumps all of these scholars, and Nahid holds out little hope for changing the custom, or for Nazma to escape the isolation she's now locked into. Said Nahid, "There is a man's psychology that will not give liberation to women." |
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