Imrana Case: Points to Ponder

By Dr Javed Jamil

Director , International Centre for Applied Islamics, India

Imrana Case has been the centre of controversy in India in recent months. The verdict given by All India Muslim Personal Board is surely contradictory to the basic spirit of the family system established by Islam as well as the general sense of justice. Her father-in-law raped Imrana. The Village Panchayat ordered her to separate from her husband and choose her father-in-law as her new husband. Unfortunately, the Islamic Clergy has come to the defence of the verdict of the Panchayat, basing their argument on the principle that a woman who has slept with father cannot be a wife of son. Let us first try to understand in brief about the aims and objectives of Islamic family system and a little more closely about the importance of Iddah, which is extremely important to decide cases of family related issues like divorce, marriage, maintenance etc.

Family peace is an integral part of Islamic social system. Owing to much less prevalence of extramarital relationships, promiscuity and sexual perversions, family system is safe and alive in most Muslim societies even at this time of crisis, unlike most of the Western countries where arrangements are being made to perform its final rites. Divorce rates are extremely low, with less than 1 per cent of Muslim marriages ending in divorce in most countries, compared to more than 50 % in most of the Western countries. The incidence of Polygamy is generally low, except in some countries. Wherever polygamy is there, this is nowhere compared to very high promiscuity rates in Western countries. The differences between promiscuity, permitted by modern systems and prohibited by Islam, and polygamy, permitted by Islam and interdicted by modern laws, are huge and need not be discussed here. With hardly a few marriages breaking, the number of single parents is remarkably low in Muslim countries, and there are only very few unfortunate children living in single parent families. In Islamic societies, abortion too is much less common; in most of the countries people regard it as murder of their own children.

Iddah

Iddah is the period for which a woman has to wait after the initiation of the process of divorce or after the death of her husband. The following facts about Iddah are to be noted:

1.      The period of Iddah in case it follows the pronouncement of divorce is three menstruation-cycles if by that time she shows no signs of pregnancy.

2.      If a woman undergoing Iddah develops signs of pregnancy her Iddah will be extended till the termination of the process of delivery. (This must include the postnatal period of 40 days.)

3.      If she is having irregular menstruation cycles her Iddah will be of three months.

4.      If she is undergoing Iddah after the death of her husband its duration will be four months and ten days.

The legal provision of Iddah has enormous implications on family and social health and legal matters related to marriage.

1.      Iddah safeguards the honour of woman. If a woman leaves the house of her husband and after a few weeks, she develops signs of pregnancy, her husband can charge her with infidelity. This is why the Quran has specifically enjoined that Iddah has to be completed in the house of the husband.

2.      Iddah safeguards the legal rights of woman and her child. In case, iddah is not completed in the husband’s house, the paternity of her foetus may become a matter of controversy.

3.      Iddah ensures safe motherhood. In case her pregnancy is completed in any house other than that of her husband, she may suffer from mental anguish, which can be detrimental for the health of mother and child.

4.      In the case of divorce (according to the procedure laid down by the Quran), Iddah provides an opportunity top the couple to bury their differences and reunite without any problem;

5.      Iddah is also extremely important for the sexual health of individuals and society

I was struck with the extraordinary role of Iddah during the compilation of my monograph, "Islamic Model for Control of AIDS" when to my amazement I found that Iddah would play a crucial role in protecting men and women from sexually transmitted disease. Since then I have continued to get more and more convinced about the extraordinary importance of Iddah in Family Health and Peace. One of the primary objectives of Iddah is to ensure that right from the first day of conception till the completion of the process of delivery (including postnatal period) she would be looked after financially, physically as well as socially by her husband. During this period, the husband is not entitled to formalize the divorce even if he has decided to part with her. Thus the antenatal, natal and postnatal cares are obligations imposed by Islam on fathers. This also provides the couple with an opportunity to reconcile their differences; the news that she is pregnant is more often than not likely to facilitate this reconciliation. It is obvious that such an extraordinary status of mother also ensures the safety of child.

Family is not an artificial creation of man for every born has a father and a mother. It is therefore necessary that the parentage of every child must be established beyond doubt. The establishment of the identity of mother is a foregone conclusion, as she physically delivers the child. But the establishment of the identity of father will create huge problems if the propriety of the institution of marriage is not maintained. If there had been no provision of a mandatory period of waiting it would have become impossible, in case a woman married within a few days of separating from her husband, to know the real father. If the identity of the father of the child is not established, it is bound to cause immense damage to the future prospects of the child; he or she may have to grow outside the shadow of fatherly protection. Thus Iddah preserves the family system ensuring that the children and parents live without their mutual love and affection getting diluted by any kind of suspicion. This of course also preserves the credibility and honour of the woman.

Another important role of Iddah is to prevent the sexually transmitted diseases. The provision of Iddah means that no woman can ever have sexual relations with two men without a gap of at least three months. This is greatly helpful in minimizing the risks of HIV and other STDs. It is interesting to note that the incubation period of all STDs is less than 90 days, and the window period of HIV/AIDS is also about 90 days. In Syphilis for example the median period of incubation is 21 days though occasionally it may be up to 90 days. Thus in the case of Syphilis, the woman will develop symptoms of Syphilis within and not more than three months. The development of a painful swelling in her private parts is likely to prevent her from marrying till she gets relieved. The same is true of other STDs like Lymphogranuloma venereum, Reiter’s disease, Herpes etc. In the case of AIDS, while the incubation period may be several years, the blood test for HIV becomes positive within three months. So if the spread of AIDS warrants a strict vigilance a woman may get her HIV tested after the expiry of Iddah before getting married again. This rule may be used with good effect for the AIDS prevention programmes. (See my book "The Killer Sex" for details).

Now before arriving to any conclusion in Imrana case, the following principles must be kept in mind:

1.      Without any formal declaration, the sexual contact between a man and a woman cannot be accepted as the part of a legal marriage, even if this has happened with the consent of both. Sex outside marriage is a punishable act

2.      In Islam, Nikah can take place only if both have agreed. Any forced relationship or rape cannot be taken as marriage. Any forced sexual act will lead to the punishment to one who forces the other.

3.      In Surah Nur, it has been clearly enjoined that one who has committed an illegal sexual act can only marry one who has either committed similar act or an idolater or idolatress. Such a person cannot marry an unadulterated Muslim.

4.      A woman cannot have relationship with two men without the completion of a gap of at least three months.

5.      If a person rapes the wife of a man, it would not automatically annul her relationship of marriage with her husband.

6.      If a father-in-law rapes his daughter-in-law, this would not annul her relationship with her husband on the ground that a woman cannot marry a father and a son. In this case, the woman has not chosen to have relationship with her father-in-law who in fact raped her. According to Islamic law, he is not even entitled to life anymore. When she was in marriage with a man, she was a forbidden woman for his husband’s father. It is he not her who has committed the forbidden act; so it is he not her who deserves punishment.

So, the ideal verdict would have been like this:

1.      If the rape is proved, the rapist will be given a punishment in accordance with the law of the country, and in addition he will be excommunicated from the community;

2.      His relationship with his wife will be broken, as he cannot be allowed to live with a pure Muslim woman;

3.      The raped woman (Imrana in this case) should have been asked to observe a period of Iddah (meaning suspension of sexual relations with her husband) for a period of three months. If she is not found pregnant and has not caught any STD in this period, she can resume her normal relationship with her husband. In case of her becoming pregnant on account of rape, she would be entitled the right to abort.

I urge the Clerics should re-examine their position in view of the above stated facts.