The Islamic idea of marriage is best expressed in the following Quranic verse: “It is He who created you from a single person and made his mate of like nature in order that he might dwell with her (in love). When they are united she bears a light burden and carries it about. When she grows heavy they both pray to God their Lord: ‘If You give us a goodly child we vow we shall be grateful’.” Elsewhere, the Quran says: “They are your garments and you are their garments.”
On the other hand, in Shariat (Islamic law) marriage is described as aqd (contract) and like any other contract, it requires free consent of the contracting parties. The parents or guardians may act as facilitators but the final decision rests with the man and woman who can propose their own terms and conditions to conclude the marriage.
The Quran views marriage as a source of physical and emotional comfort and a means of perpetuating mankind, so it is necessary both partners intend the bond to be for life. However, in cases where living together becomes impossible, the law permits divorce, described as “the most odious among permissible things”.
The Quran lays down the detailed procedure, which is informed by a strategy that encourages reconciliation and prevents family breakup. The Quran says: “When you do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods, and fear God. And turn them not out of their houses nor shall they leave except in case they are guilty of some open lewdness. Those are limits set by God: and any who transgresses the limits of God does verily wrong his soul: you know not if perchance Allah will bring about thereafter some new situation.”
The Quranic procedure of divorce provides that the couple continue to live in their matrimonial home during iddat (the three-month cooling-off period) and the option of reunion and remarriage remains available.
In Islamic legal theory, the Quran is accorded the highest status. It is from this that Sharia laws are extracted and construed. It defies reason that Muslim family laws as practised on the Indian subcontinent are mostly in conflict with Quranic provisions.
Some of the legal provisions with respect to marriage and divorce compiled by the All-India Muslim Personal Law Board (AIMPLB) sharply violate the spirit —and word — of the Quran. On the question of parity between husband and wife, Section 117 (3) of the AIMPLB compendium differentiates between Muslims of Arab and non-Arab origin. It provides that “regard shall be had in respect of descent among the Arabs especially Quraysh and those non-Arab families who have preserved their descent. People in the rest of the non-Arab world are mutually equal”. What a travesty of Islamic egalitarianism and equality.
Similarly, in matters of divorce the compendium makes a mockery of the lofty Islamic principle of ‘no compulsion in matters of religion’.
The chapter dealing with divorce not only validates instant divorce but Section 5 (b) says: “For the effectiveness of talaq (divorce) it is in principle necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment”.
Sections (6) and (7) are even more ludicrous. Section 6 says: “If a person under compulsion or duress pronounces a talaq it will be valid if it is verbal but not otherwise.” Section 7 says: “A talaq pronounced in hazl i.e. jest also becomes effective.”
There is nothing Islamic about these laws; in fact they smack of pre-Islamic Arab jahiliyya (ignorance), which thrived on class differences and the use of brute force. Is it any wonder then that many hapless women are exploited through fraudulent marriages and then shown the door with an instant divorce? It is futile to talk of reform so long as the authors of these atrocious laws continue to enjoy political patronage.
The writer, a former Union minister, quit the Rajiv Gandhi government over the Shah Bano controversy