Political Diary

New Delhi, 27 September 2016

Talaq, Talaq, Talaq

WHAT ABOUT EQUALITY?

By Poonam I Kaushish

Little did thirty-five years old Shayara Bano realize she would create waves, big waves. Shayara who? In the sleepy town of Uttarakhand’s Kashipur her worst fears came true when her husband of fifteen years sent her the talaq-nama from Allahabad. She decided to move the Supreme Court seeking a ban on instantaneous triple talaq (talaq-e-bidat), polygamy and halala (a practice where divorced women, in case they want to go back to their husbands, have to consummate a second marriage). Thereby, becoming the first Muslim woman to challenge a personal law practice, citing her fundamental rights

In 2007 Dilshad Pathan too had moved the Bombay High Court challenging the arbitrary pronouncement of the word “talaq” by asserting that this wasn’t a sufficient condition for divorce. The Court held that clear reasons for the divorce must be provided. Moreover, arbitrators must be appointed to initiate attempts at reconciliation.

Earlier in 2002 in the Shamira Ara case the Supreme Court had taking measures to reduce the arbitrary nature of the Triple Talaq provision in Muslim Law and to regulate it, thereby somewhat strengthening the position of a Muslim wife.

In 2005 28-year-old Imrana a mother of five children, is raped by her father-in-law in Muzzaffarnagar. She files a complaint with the Islamic panchayat seeking justice. Instead, the panchayat dissolves her marriage to her husband.

Further, the Darul-ul- Uloom of Deoband endorses this and issues a fatwa denying her marital rights. As under the Shariat Law, she is now symbolically her husband’s ‘mother.’ A shattered Imrana and her husband meekly state that they will abide by the Deoband fatwa. Even as her father-in-law is arrested. But what about the poor rape victim?

Remember 62-year-old Shah Bano from Indore, a mother of five she was divorced by her husband in 1978. She filed a criminal suit in the Supreme Court in 1985. A five-member Constitution Bench overruled the Muslim Personal Law and allowed her maintenance from her husband.

Predictably, the Muslim clergy opposed the judgment. The then Congress Prime Minister Rajiv Gandhi decided to curry favour with the Muslims and got Parliament to pass a new legislation, the Muslim Women (Protection of Rights on Divorce) Act. This reinforced denial by the Muslim Personal Law of any maintenance to divorced women.

True, neither Shayara, Dilshad, Shamira, Imrana or Shah Bano talked of the contentious Uniform Civil Code, nor asked for codification of the Muslim Personal Law. All they sought is equality before law and protection against discrimination on the basis of her gender and religion.

Thereby raising many questions: Can a fatwa overturn the sanctity of marriage? Does the fatwa not tantamount to violation of human rights? Does a women have equal rights in a democracy? Can they be discriminated on the basis of religion? Can a victim be victimized for no fault of hers? Should she be denied her marital rights? What about her feelings?

Is there no appeal against a husband’s monstrous and arbitrary order?  Can the clergy trample on individual rights? Importantly does the Muslim Personal Law take precedence over the law of the land? Does Islamic Law oppose the idea of equality enshrined in the Constitution? Are triple talaq and nikah halala not Islamic? Should the State discriminate by religion? 

The NDA Government stand is clear. It is opposed to the All-India Muslim Personal Law Board plea that divorce by triple talaq is derived from the Quran and sanctified by the Sharia law. Instead the practice is a violation of the fundamental rights guaranteed by the Constitution in secular India.

As it stands regulating matrimonial laws is acknowledged in Islamic countries and not considered contrary to the Sharia. In fact, many Islamic countries have codified and reformed the Muslim Personal Law to check its abuse. Polygamy has been banned in 22 Islamic countries, including Syria, Iran, Tunisia, Morocco, Saudi Arabia and Pakistan.

Echoing the Centre’s view is the Bhartiya Muslim Mahila Andolan (BMMA) which states that both triple talaq and nikah halala are unIslamic, and antithetical to Islam itself. To underscore this it cites the example of the Prophet’s wife who was a widowed businesswoman, fifteen years older to him while his youngest wife Ayesha led a contingent to battle. Proof of Islam being inherently equalising.

Moreover, practices from ‘jahiliya’, the so-called age of ignorance before Islam, like the purdah, chador etc have left their mark on regional practices and now being confused with Islamic practice. As it stands according to a survey

Pertinently, liberal Muslim clerics hoot for gender equality, citing Islamic feminism as modern. Consequently, many Indian Muslim women today interrogate ‘the spirit of Islam’, and their place in it. According to a recent national survey 88% of Muslim women want a stop to patriarchal legal practices such as triple talaq and polygamy. They want the State to explicitly oversee traditional Islamic courts, while 95% hadn’t even heard of the Muslim Personal Law Board.

What next? All eyes are affixed on the Apex Court. Will it lead by example and unshackle the 21 Century Muslim woman trapped in archaic medivial Personal Laws? Will it again suggest implementation of the Common Civil Code? And emphasise Babasaheb Ambedkar’s advocacy of an optional common civil code?

Remember, during the Constituent Assembly debate on Article 35 (now 44) on November 3, 1948, Babasaheb had argued that according to him there was no connection between religious and personal law in a civilized society. Appropriately he made two observations: One, the Muslim Personal Law is not immutable and uniform throughout India, contrary to what had been stated in amendments (moved by Muslim members).

Reminding all that up to 1935 the North West Frontier Province was not subject to the Shariat Law instead it followed the Hindu Law in succession and other matters. So much so that it was only in 1939 that the Central Legislature abrogated the application of Hindu Law to the Muslims of the North West Frontier Province and applied the Shariat Law to them. In North Malabar, the Marumakkathayam Law, a matriarchal form of law and not a patriarchal form of law is applicable.

It is time our Muslim brethren remembered that there is no mysticism in the secular character of the State. The State is neither anti-God nor pro-God. It does not differentiate by sex. And is expected to treat all religions and people --- men and women alike, be it the devout, agnostic and the atheist. It only ensures there is no one is discriminated against on the ground of religion.

Ultimately, no one should be allowed to decide, dictate or ruin another individual’s life. From successfully granting Shah Bano her alimony in 1985 to allowing an unwed Christian mother to be her child’s sole guardian, without the approval of the absentee father in 2003 to now deciding whether to heed Shayara Bano’s pleas all eyes are affixed on the Court. Will it break new ground and unshackle minority women? ---- INFA

(Copyright, India News and Feature Alliance)