Amid reports that former Haryana deputy chief minister Chand Mohammad divorced his wife Fiza over the phone from London, a noted Islamic scholar termed the move as a brazen absurdity that couldn’t be inducted into the divorce procedure prescribed by Islamic law.
“The talaq (divorce) given on landline or mobile phone, or by SMS, is a brazen absurdity that cannot be given effect under the Indian law which is based on sound jurisprudential principles,” Law Commission member Tahir Mahmood told HT.
He said, “Under the law of India as settled by the Supreme Court in the celebrated Shamim Ara case of 2002, a talaq can have the effect of dissolving the marriage only if the man satisfies the court through legally tenable evidence that he properly ‘pronounced’ it strictly in accordance with the procedure prescribed by Islamic law.”
Mahmood said telephone and SMS technology was absolutely non-existent when the Islamic law of divorce was formulated and cannot now be inducted into the divorce procedure prescribed by Islamic law.
“This will further distort that law which unfortunately stands already distorted beyond recognition,” Mahmood, a former chairman of the National Commission for Minorities, said, urging religious leaders “not to allow such mockery of the sacred law of Islam”.
About Chand Mohammad, Mahmood said his second marriage to Fiza was, despite their “pretended conversion to Islam”, void ab initio (non-existent right from the beginning) under the Indian law.
Maintaining that divorce pre-supposes existence of a valid marriage, he said, “To discuss the effect of telephonic talaq on his (Chand Mohammad’s) second marriage is an exercise in futility.”
“If a married Hindu during the subsistence of his first marriage embraces Islam and contracts a second bigamous marriage, it is illegal and punishable under the Indian Penal Code even if conversion is absolutely genuine…This is the current Indian law as settled by the Supreme Court in the 1995 Sarla Mudgal case — and it conforms to the true Islamic law on polygamy,” he said.