JAH dismisses HC ruling on Talaaq as ‘interference in religion’

All religious groups’ conference called on Nov 4^th to devise resistance plan

Ahmed Ali Fayyaz

Srinagar, Nov 2: Prominent religious organisation Jamiat-e-Ahl-e-Hadith (JAH) has dismissed a Jammu and Kashmir High Court judge’s ruling on divorce (Talaaq) as “interference in the religion of Islam” and decided to put up resistance to adjudication of religious matters by the judiciary. A conference of different religious bodies has been urgently called in Srinagar on November 4^th to devise a plan of sustained resistance.

In a 23-page judgment delivered last week, Mr Justice Hasnain Masoodi had decreed that both partners of marital union had equal rights in Islam and the husband’s competence of pronouncing divorce was not arbitrary, unqualified or absolute. The judgment has been delivered in a case in which the wife had initially come up with an application in the trial court seeking maintenance. However, the husband had resisted the application on the grounds that he had divorced her and was not under any obligation to pay maintenance allowance.

JAH today held a threadbare discussion on the body, interpretations and consequences of the High Court judgment. According to a statement released to media this evening, JAH viewed the judgment on Talaaq as “completely unacceptable” calling it “direct interference in the religious matters (of Islam”. It asserted that the judgment was pregnant with “extremely dangerous consequences for the religion of Islam”.

The JAH statement added that the High Court judgment was infringement of Muslim Personal Law under which followers of the faith of Islam had every right to live as per their religious dogmas and practice. It claimed that the judicial courts set up under the non-theocratic set up had no jurisdiction or competence to adjudicate and interpret matters defined in Quran and Hadith. “If this judgment is accepted today, the man-made courts would be tomorrow judgmental on all other religious matters of the Muslims. This has never been acceptable to Muslims in the past nor would ever be in future”, added the JAH statement, unprecedented after Shah Bano judgment controversy in India.

According to the press release, JAH was inviting “all religious and social organisations, intellectual community, jurists and legal experts besides prominent religious leaders” to deliberate on the judgment and its consequences in a conference here on November 4^th. The conference would devise a collective strategy to resist the judgment on divorce.

Informed sources added that efforts were underway to get on board all the religious leaders including heads of both factions of the separatist Hurriyat Conference. However, there were strong speculations that Chairman of so-called moderate faction of the Hurriyat had certain reservations including the one that Mr Justice Masoodi happens to be the uncle of his spouse. Even the participation of the Chairman of Hurriyat’s “hardline” faction, Syed Ali Shah Geelani, as well as that of Sadr Mufti, Mufti Bashiruddin, and his successor son, was said to be uncertain for varied reasons.

Confrontation between the clergy and judiciary in Kashmir over the husband’s competence of Talaaq would be watched with interest as the judge himself belongs to a scholarly background and a respected family. Bar-at-Law from the prestigious Harvard University in USA, Mr Justice Masoodi is known as an authority on Islamic jurisprudence. “This is not going to be a debate on a judge’s profile or qualification. The question is whether or not the courts of a non-religious set up could adjudicate such matters and issue decrees”, a JAH activist observed.

The judgment goes extensively into details of the Shariah law and Quranic injunctions on the subject to find support for its view that “husband cannot have unrestricted or unqualified power to pronounce the Talaaq.” It lays special emphasis on going into the fundamental sources of Shariah law to understand the concept of marriage in Islam, the rights of the parties to the marriage contract and the mode and manner the contract is dissolved.

“Though Islam visualizes a situation where a marriage may run into rough weather for reasons beyond control of the parties to the marriage contract, and provides for a mechanism to end or dissolve the relationship in such case, yet the device of divorce is to be used as the last option when the marital relations have irretrievably broken down”, it reads.

It maintains that in Islam divorce by husband may take three forms: Talaaq-e-Ahsan—single pronouncement of divorce made during a Tuhr (period between menstruations) followed by abstinence from physical relationship for the period of Iddat; Talaaq-e-Hasan—three pronouncements of divorce made during successive Tuhrs, without any physical relationship during any of the three; and, Talaaq-e-Bidhi—three pronouncements of divorce made during a single Tuhr either in one sentence or in three sentences or in any other form like in writing, indicating intention of the husband to irrevocably dissolve the marriage.

The judgment calls the Talaaq-e-Bidhi as most despised and discouraged form and Talaaq-e-Ahsan as the most approved form of divorce.

Maintaining that Talaaq-e-Ahsan is the “only form of divorce that finds approval of Quran,” it says this is the approved form of divorce as it leaves room for reconciliation. Quoting several verses from the Quran on the subject, the judgment reads: “Quran obviously places certain restrictions on the power of husband to pronounce divorce.”

It reads: “There is no scope for disagreement with the legal proposition that as Quran and Sunna refer to Talaaq-e-Ahsan, restrictions placed on use of said device, as laid down in Chapter 65 verse 1 and 2 and elsewhere in Quran and Sunna have reference to Talaaq-e-Ahsan. However, there is no reason to conclude that the said restrictions, applicable to the most approved form of divorce, should not be applicable to the most despised and discouraged form of Talaaq i.e. Talaaq-e-Bidhi. On the other hand, restrictions warrant strict enforcement in case of Talaaq-e-Bidhi.”

According to this judgment, a husband was bound to prove that “effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit; that he had a valid reason and genuine cause to pronounce divorce on his wife; that Talaaq was pronounced in presence of two witnesses endued with justice; and that Talaaq was pronounced during the period of Tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said Tuhr.”

“It is only after the husband pleads and proves all the above ingredients that divorce- Talaaq- would operate and marriage between the parties would stand dissolved so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife,” it rules.

“Islam does not give preference to either of the parties to a marriage. The message in Chapter 30 Verse 21 is not gender specific. It does not address a Muslim man or Muslim woman. It does not say that Almighty Allah created for a man, woman as his spouse or vice-versa. It, on the other hand, addresses both men and women saying that He created spouses and it is a sign of His mercy. This clearly indicates that a man and woman are equal partners in a marriage”, reads the judgment.

It adds: “Again Quran uses expression ‘Zawj’ for both husband and wife. It means either of the pair. Wherever Quran makes mention of ideal partners in a marriage, it refers to them as ‘Zawj’ and not husband or wife. This again makes it clear that husband and wife in Islam are equal partners and have equal status.”

“Islam does not prefer or encourage a particular pattern of life for a married couple. It gives them complete freedom to decide on life pattern and assign roles as long as such patterns or roles are not in conflict with fundamental principles of Islam. The husband and wife, at the time the marriage is contracted, must be competent to enter into a contract. The contract is to be based on mutual consent i.e. offer and acceptance. This further reinforces the proposition that a man and women have equal rights, equal role and equal power while contracting marriage.”

Again, it reads: “In Islam husband and wife protect each other. Quran calls them garments for each other. The verse is to indicate the level of proximity or intimacy between the spouses. Here again Quran does not make any difference between wife and husband.”

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Geelani denies ‘macadam statement’, sticks to his guns on Amarnath

Ahmed Ali Fayyaz

Srinagar, Nov 1: Separatist hardliner Syed Ali Shah Geelani has dismissed Omar Abdullah government’s media campaign over Amarnath Yatra track as an attempt to “distract attention from the real issue”. While asserting that he had never claimed ‘macadamization of Amarnath track’, Geelani has however reiterated his demand of reducing the number of pilgrims and period of the annual Hindu pilgrimage.

According to a statement issued today from headquarters of Geelani-led faction of the Hurriyat Conference, neither the conglomerate nor its head had ever claimed that the track to the holy Cave was being widened and macadamized. Spokesperson of the separatist alliance claimed that the state government’s sponsored aerial inspection of the track by a select group of journalists on Wednesday was “just an attempt to distract attention from the real issue”. He added: “Hurriyat (G) has never alleged black-topping of the yatra track. It has never claimed that structures were being raised over there”, the spokesman asserted.

“After a detailed survey in upstream Pahalgam, Hurriyat (G) had said that building material was being dumped on the track at large scale by the Shrine Board. It had simply expressed apprehensions that attempts could be made in future to utilize these dumps for widening and macadamizing the road in a phased manner”, the spokesman said. He asserted that Hurriyat (G) was continuously firm and resolute on its four demands made in 2008---immediate dissolution of Shrine Board, shifting the entire gamut of the pilgrimage and shrine management to the local Pandits, reducing the number of pilgrims and curtailment to the yatra period.

The spokesman said that macadam or no macadam could be considered only after the Government responded to Hurriyat’s charter of demands. It needed to be clarified whether the government taken Hurriyat’s demands seriously or it was taking Delhi’s diktats with its eyes shut, said the spokesman. He alleged that the establishment was misleading the masses through the unwarranted refrain of “no-macadam” which was not Hurriyat’s fundamental demand. He claimed that the Hurriyat’s concerns and demands were based on apprehensions of scientists and ecological experts who believed that existing duration and rush of the pilgrims, coupled with constructions, could have a dangerously negative impact on the Valley’s environment. Even the sources of water could dry up completely, he said.

In a press conference on October 18^th, Geelani had threatened to launch a mass agitation after Eid-ul-Azha (October 27^th) if the state government did not stop widening and macadamizing the pilgrimage track from Pahalgam to the holy cave. From Chief Minister to IGP Kashmir, several government functionaries have contradicted Geelani’s statement and claimed that there were no such plans on cards. On October 31^st, Government sponsored an aerial survey of select mediapersons by a helicopter and provided evidence that no construction work was underway. However, the trip was restricted to only Baltal area and no sorties manoeuvered to Pahalgam-Cave track.

In his October 18^th press conference, Geelani had warned that the fresh anti-Shrine Board agitation would be “far bigger than that of 2008 and 2010”. At the same news conference, Geelani had claimed that fresh efforts of raising “Amarnath Nagar” were underway. According to him, Governor was implementing the plan by directly taking dictation from New Delhi and the state government had been rendered completely helpless. He had claimed that huge quantities of construction material had been already dumped on Pahalgam upstream as the Shrine Board, according to him, had started widening and macadamizing the road to the Cave.

“Shrine Board has arranged special permission for vehicles as truckloads of material are reaching from Rajasthan with the direction to authorities that none of these vehicles be subjected to checking”, Geelani had told mediapersons. According to him, the road from Pahalgam to the holy Cave was being widened and macadamized under orders of Supreme Court and Omar Abdullah’s government had not deployed any of its attorneys in defence. Geelani had claimed that Hurriyat was not against the pilgrimage but it was putting up resistance “only because this pilgrimage is being used as a tool to sustain and strengthen the Indian political aggression (on Jammu and Kashmir)”. He had also mentioned conservation of ecology and wildlife as another reason.

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Silver Star CCTV found shut since evening of Oct 18

Pak ultra Qasim identified among 4 in LeT’s Sajjad group

Ahmed Ali Fayyaz

SRINAGAR, Oct 30: Much to its surprise, Special Operations Group (SOG) of Jammu and Kashmir Police has observed that CCTV system at Silver Star had been switched off 22 hours before the suspected militants of Lashkar-e-Tayyiba raided the three-star hotel on the National Highway Bypass in Srinagar outskirts on October 19^th.

Two young civilians, who were both junior employees of the hotel, had died and two more of their colleagues had sustained injuries when four heavily armed gunmen, suspected to be the cadres of LeT, had attacked Solver Star hotel at 4.30 p.m. on October 19^th. While as authorities had claimed that the militants caused the bloodshed after they failed in their plans to attack a convoy of security forces, LeT spokesman had claimed that Army suffered casualties as two fully packed vehicles became the target of its militants who all reached safely back to their hideout after the ‘fidayeen attack’.

Sources associated with the investigation revealed to Early Times that two of the four ‘fidayeen’ had been identified even as two more were likely to be identified in a couple of days. All the four, according to these sources, were members of the Sajjad group of LeT. Operating in Pampore-Wuyan-Nowgam-Parigam belt, Sajjad is said to be a resident of Zewan village. However, he was not among the four of his associates who did a fierce shootout at the hotel and escaped successfully, sources said.

Qasim, who is believed to be a Pakistani national and involved in a fatal highway strike on Army at Pampore earlier this year, as also LeT’s Kashmiri functionary, Imtiyaz of Kulgam, are said to have been identified as participants of the ‘fidayeen’ attack on the hotel. At least one militant of the group has been identified with the help of a previous video recording by the CCTV as Police tallied his visuals with the photographs already in their possession. It indicates that the militants had carried out a reconnaissance survey of the spot before they struck on the hotel earlier this month.

The investigators, who are still processing hundreds of call detail records of cellphones and video recordings, have noticed that the hotel’s CCTV system had been “unusually” shut off at 6.00 p.m. on October 18^th. When questioned by Police about it, the hotel’s proprietors and staff insisted that the system had closed down automatically when the electric supply went off a day before the shootout.

The investigators have, nevertheless, seized the CCTV system with all of its cameras and processing units. Its back up has been preserved and is being scanned by a technical team helping SOG in the investigation. According to sources, it contains the recorded footage of 30 days prior to the militant strike.

Police, according to sources, were trying to ascertain whether the militants had operated with the help of some insider at the hotel or the CCTV had really stopped working in absence of power supply.

Presence and movement of the LeT group in Pampore area had led to return of a Rashtriya Rifles camp at Chhatergam village earlier this month. However, within days, it suffered a setback when soldiers of a different battalion of Army opened fire on a privately engaged Tata Sumo of RR 53 Bn, killing a Territorial Army driver on spot out of confusion. He was a resident of Beerwah area of Budgam district.

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