Daily Times

It has been reported by Al Jazeera that in India 50,000 men and women have signed a petition demanding a ban on Muslim divorce. Three different but expected reactions were noticed. Ulema (religious scholars) were the first to denounce it as “un-Islamic” and an “intervention in Islamic faith.” The Indian Supreme Court simply shied away, and squirmed behind an ingenious but disappointing argument saying, “It was outside its jurisdiction to make laws for social change.” Then came the spokeswomen who apparently under pressure from religious legions tried to steer the intent of the petition towards better of the two options outlined by Sharia.

All the three responses could not have been materially different had the petition been made in Pakistan. It was the then Chief Justice (CJ) Iftikhar Chaudhry’s judicial tenure when I submitted a paper on the tyranny of unilateral divorce titled “Let Me Speak, My Lord,” which had already appeared in Daily Times for the CJ’s kind consideration. After a year or so, the reply was even more wretched than the Indian Supreme Court reaction. It simply said that the petition was considered, and no action was merited, or words to that effect.

The Indian Supreme Court’s plight is understandable. They have the authority of the constitution but lack the status of a Sharia court. My petition required a constitutional and humanitarian approach, which are coincidental considerations under Fiqh (the theory of Islamic law) in this particular matter. While dealing with the Sharia law, all the brilliance and logic of a mufti or religious scholar comes to halt where the domain of Sunnah and the word of Quran begins. The fear of being called a heretic among Muslim scholars has been so great that they failed to devise necessary safety mechanisms and rules of business for a fair and thoughtful dispensation of justice in offences like adultery, rape, blasphemy, false witness and false accusation, to count a few. The result in most cases has been a miscarriage of justice, particularly in the case of rape where they have been pathetically insensitive and unimaginative. Our lofty Council of Islamic Ideology considers the sure-shot and scientific DNA test as inadmissible evidence in a rape case.

There is a different set of the permissible in Islam that is viewed by most Islamic societies with equanimity, but whose effects are no less by way of destruction, suffering and human degradation. Two of the major ones are slavery and divorce where Fiqh did place a few provisos, but discretionary and not preventive or punitive. Slavery in the classic sense has long gone out of practice, but was one of the cruelest businesses practised by not just Muslims but the rest of the world too. Imagine a family captured by way of conquest, or taken by force by slavers and offered for sale. They used to be auctioned off in slave markets like animals. If the mother was bought by one, the father by the other, and children were acquired by yet another bidder. There could be nothing more heartless and barbaric. Slave trade thrived in Americas, Europe, Far East and Middle East with all its attendant horror and tragedy. Whether Islamic, Egyptian, European, American or Chinese civilisations, through the seams of their grand palaces and pyramids seeps the blood of slaves and bonded labour.

Slaves had an important role to play in their economies. The Industrial Revolution replaced human work force, and enabled economic independence, whereas the information revolution helped develop collective awareness and consolidate collective conscience. These two together made slavery untenable, and it was finally eliminated by the turn of the 19th century after thousands of years of its religiously approved existence. This only goes to prove that religions have generally been relative to their times and societies of their advent. That certain permissible stuff could be amended or abandoned as the host societies evolved over time.

However divorce, the other scourge, has continued to devastate Muslim societies unabated as the grip of the religious orthodoxy is still to be loosened. In fact, daunted by the rapid advances in the information technology and unable to match the response, some ill-educated Muslim societies are increasingly becoming literalists rather than pragmatic. In 1960s, girls could cycle to their schools and colleges in a place like Gujranwala without threatening anybody’s religious sensitivities, but now they cannot.

Divorce is becoming a plague in Pakistan. We used to take pride in our strong family bonds, and thought that our lesser incidence of divorce compared to western societies was a result of the same. Not so. It was because male expectations had not exploded, females were minimally empowered, and that the larger family and social circle could exert a kind of moral pressure upon the errant husband/wife to put out the fire.

Over the centuries so much has changed but still everything is the same. One is particularly concerned with morally and physically devastating privilege of instant, unilateral divorce by the Muslim male, and the ultimate indignity of absence of any social, religious and legal remedy to the utterly defenceless female. In many situations, she is turned into a social leper — length of the married life, number of children or the enormous volume of compromises she made notwithstanding. It is also inconsequential to the entitled tyrant as to what kind of vulnerabilities would she and her children be exposed to out in the open.

In the course of following a divorce case in a family court one was able to reverse at least two divorces by earnestly engaging with the affected families from the floor of the crowded court itself. In one case, it was a lower working class family with two daughters and a son, eldest daughter about 11 years old. I just had to draw the man’s attention to the real possibility, in a future point in time, of his college-going daughter being harassed by a loafer at a bus stop. Whom would she turn to for protection? He understood. My parting advice to him was not to turn towards a mullah (clergy) but enlist the help of a respected elder for a patch-up. He did and that family was never seen in the court again.

Divorce has become a potent weapon for systematic gender extermination in our society, and has to be addressed with a sense of urgent purpose. This discourse is not about abstractions like orthodoxy versus human rights. Instead, material issues are few and easily identifiable. A determined attempt has to be made to retard, mitigate and humanise divorce. Male unilateralism must be replaced by a post-divorce fully responsible conduct for its residual effects upon the mother and her children, not limited only to a disgraceful handout called maintenance allowance. Married females should be provided with a wholesome legal cover against spouse indiscretions like divorce, second marriage, domestic violence, drunkenness and personality assassination, and those who sign casually as witnesses at the time of marriage be held responsible as guarantors by family courts should things go wrong. Our woefully deficient Council of Islamic Ideology, ulema and judiciary must be proactive. Finally, our society must undergo a qualitative change of attitude towards a woman whom it considers guilty in retrospect as soon as a divorce is pronounced, and the male is generally not asked to account for what he did. Divorce was intended to be the last but an undesirable option, and not a non-negotiable male right.

The writer is a retired brigadier of the Pakistan army and can be reached at clay.potter@hotmail.com