Soon after she was made a member of the Chennai branch of the All India Muslim Personal Law Board in 2013, Nikhath Fathima started state-level coordination programmes with existing members. Coming from different professions and sects, speaking different languages – Tamil or Urdu – most of these men and women had never met one another. Thanks to her, they started sitting together to plan the activities of the board. These included talks by the board’s secretary, Maulana Khalid Saifullah Rahmani, on women’s rights under Islam and the need for education for women.

Last week, Fathima resigned as a result of differences with the board on triple talaq – whereby a husband can unilaterally divorce his wife just by pronouncing the word talaq thrice.

A number of petitions have been filed in the Supreme Court by Muslim divorcees and organisations challenging the constitutional validity of triple talaq. In October, the Bharatiya Janata Party-led government at the Centre filed an affidavit in the court seeking a ban on triple talaq, saying it “cannot be regarded as an essential or integral part of the religion”. The Muslim law board has, in turn, filed an affidavit supporting the practice.

Instant talaq and halala 

“The Quran has a definite procedure for talaq that requires mediation, followed by a single pronouncement of talaq, which allows you to reconcile. Even if you utter talaq three times, it must be treated as a single pronouncement, and the couple can marry again, even after two or three years,” said Fathima “There is no need for halala (the practice where if a man wants his divorced wife back, she must first marry another man, consummate the marriage and be divorced by him). In North India, the practice of halala has become rampant and has led to the exploitation of women. No way can you use religion to justify it, nowhere in the Quran is halala mentioned. Why is the board facilitating something that is wrong?”

In the south though, she added, triple talaq and halala are not as widespread because Muslims there are educated. “They read the Quran,” she said. “Also, jamaats such as the Jamaat-e-Islami and Ahle Hadees are very active, and both are very progressive on women’s issues.”

Fathima follows the Ahle Hadees school that holds a pronouncement of triple talaq equivalent to a single pronouncement, thereby giving the couple an opportunity to get back together.

“The board represents various sections of Muslims, including the Ahle Hadees and Shias, both of which do not recognise instant triple talaq,” she said. “Why are their views not being accepted?”

Board members quote​ the Prophet’s companion​, the Caliph Umar, to justify triple talaq. Umar had made the pronouncing of triple talaq irrevocable, but as a warning to men making the pronouncement recklessly, divorcing their wives and then remarrying them. He had simultaneously prescribed lashes for any man who pronounced triple talaq.

“Who’s giving the lashes today?” asked Fathima “If you endorse the validity of instant triple talaq on the basis of what Caliph Umar said, why are you not endorsing the punishment he gave too? I’m not comfortable with this attitude. My conscience does not allow me to continue in the board.”

Fathima, however, feels instant talaq should not be completely done away with. “In exceptional circumstances, such as when the wife is suffering long-term abuse but does not have the guts to break away, instant talaq can be a boon.”

Need for reform

She explained that the Muslim law board’s rigidity on triple talaq arose out of fear of “appeasing the BJP”. Party president Amit Shah had said in an election speech in Uttar Pradesh on November 8 that the BJP was not afraid of doing away with triple talaq. According to Fathima, the board feels that opening the door to reform would mean facilitating a BJP-imposed Uniform Civil Code – a common set of laws governing marriage, divorce, succession and adoption that would replace the various religious personal laws.

She asked, “But should the fear of a Uniform Civil Code mean there should be no reform? Even if some practices are being carried on in the name of tradition, it’s time to change them.”

Fathima is opposed to a Uniform Civil Code, which she believes goes against the secular character of the state, guaranteed by the Constitution. But according to her, a Uniform Civil Code has always been part of the BJP’s goals. “It’s not a hidden agenda that will come to light only if the board brings in reform in personal law,” she said. “The BJP will try to enact a Uniform Civil Code anyway. It’s the secular voice that must cry out against the government’s attempt to use its powers to bring in a non-secular state.”

Fathima feels that such a code will be difficult to enact, given the diversity in practices among Hindus, as well as Adivasis, some of whom allow polygamy.

Fathima is a well-known activist in Chennai, and is a former co-chair of the AHI Academy for Women and president of the alumni association of the Sacred Heart Church Park School, which has Tamil Nadu Chief Minister J Jayalalitaa and former Congress minister Jayanti Natarajan as members. “I come from a school where independent thought was encouraged,” she said. “My mother worked alongside my father, who was a mining engineer. I have studied Islamic jurisprudence and can assert that triple talaq is not part of it.”

Fathima said she believed women had the right to pray in mosques. While the Ahle Hadees recognises this right, other sects that are also part of the Muslim law board do not. Some of them, she pointed out, run businesses where 70% of the workforce is women. “They don’t mind women going out of their homes to work, but will not allow them in the mosque. Why? Because they will start reading the Quran and learn of their rights under Islam,” she added.

Prophet Mohammed’s wives, she pointed out, were all independent women – one was an entrepreneur, the other an activist. “It’s very simple, we should just follow the Prophet’s example,” she said. “That’s what the Ahle Hadees does.’’

Fathima’s stand on women’s rights was known to the Muslim law board when they recommended her name in August 2013. “I said yes because I thought I could work as a mediator on women’s issues between Muslim women and religious bodies.” she said. “I also wanted them to be proactive on women’s issues.”

She called her stint with the board’s Tamil Nadu chapter a great experience, praising the other members as a “bunch of sincere workers”.

While the board has not yet accepted her resignation, the Jamaat-e-Islami is urging her to stay on and fight from within. Despite their progressive stand on women, both the Jamaat-e-Islami and Ahle Hadees, however, are firmly backing the board today. Fathima said their stand was a bid to “show that the community is united against a Uniform Civil Code”.

However, she said she could no longer let her name be associated with an organisation that endorses triple talaq. “The Uniform Civil Code must not happen,” she insisted. “But reform must continue within and from outside every community that suffers the bane of injustice and oppression.’’