At the centre of the 'triple talaq' debate in India lies a power struggle between a group of entitled patriarchs who seek to carry on with their oppression under the cover of religion, and Muslim women fighting for their rights, increasingly willing to take a stand against institutional bullying.
In this unequal yet important battle where a significant section of the Indian population remains as second class citizens in a modern democratic society, the government and the court have lent their weight behind Muslim women who have raised their voices against oppression cutting across age and regional divides. The burden of grief that connects an otherwise unconnected Shayara Bano to Afreen Rehman or members of the Bharatiya Muslim Mahila Andolan (BMMA) has become too heavy to bear.
In its 28-page affidavit, the government has urged the Supreme Court to do away with the controversial practice that has been shunned in many Islamic theocratic states including Bangladesh and Pakistan. The Centre must be applauded for breaking away with the stasis of past governments and stating that gender equality is non-negotiable. It deserves praise for taking an unequivocal stand against the unilateral, split-second divorce that erodes the fundamental rights of a woman.
But when it comes to such fundamental, socio-economic changes that have far-reaching repercussions in a multi-lingual, multi-ethnic and pluralistic, secular democracy such as ours, the government and courts can only do so much. It is rather disheartening to find India's liberals, who should have been at the vanguard of such a movement and led the charge against institutionalised subjugation, go AWOL on this subject. Where is the civil society? Is this a battle alone for Muslim women? Does their plight not move our liberals?
A first-of-its-kind study, conducted by BMMA across 10 states featuring 4,710 women between July and December 2013, reveals that 91.7 percent Muslim women in India want triple talaq to go. A report in The Times of India, quoting author of the study, Zakia Soman, says: "In 2014, of the 235 cases that came to women Sharia adalats (courts) that we run, 80% were of oral talaq." An overwhelming 93% women were opposed to instant talaq and favoured an arbitration process before a divorce. A further 83.3% advocated for the codification of a Muslim family law.
The victims of the unequal law have some horrific stories to tell. Shayara Bano, for instance, was made to undergo six abortions by her husband, who forcibly administered pills that ruined her health. Bano, according to a Times Now article, longs to be with her two kids who stay with her husband. Or, take the case of 25-year-old Afreen, who was divorced via Speed Post. The report also mentions the plight of a 21-year-old student who was divorced 10 days into her marriage through WhatsApp.
Meanwhile, fearing an erosion of power, the pedagogues of All India Muslim Personal Law Board have reacted in the same way that bullies habitually do. Faced with an unprecedented clamour for gender justice and equality from women within their own society, the AIMPLB chieftains have sought to conflate the debate by placing it within a larger religio-ethnical context. From being the oppressors, they have tried to fashion themselves as "victims".
Their strategy is to stall the Centre or court's move by alleging interference into Muslim Personal Law. AIMPLB has sought to use Article 25 of the Indian Constitution, which guarantees the right to practice personal religion, as a battering ram against all arguments of gender justice, equality, dignity, and non-discrimination.
This is a red herring. First, it needs to be stated clearly — and this is where liberals can play a role bigger than the government or the courts because we are discussing minority rights — that Indian Constitution enjoys primacy before all personal laws.
And since retrogressive practices such as triple talaq sit at odds with a citizen's fundamental right of equality before the law irrespective of gender or religion as guaranteed by the Constitution, these personal laws as well as customs and usage — as the government submitted in its affidavit on Friday — "would come under the ambit of Article 13, which lays down that any law that impinges upon fundamental rights shall be void." As a report in The Indian Express points out, "the government pleaded that the practices of triple talaq and polygamy should be tested on the anvil of Article 13 after rectifying the “incorrect” precedent set by the High Court in 1951." Second, the myth that a few patriarchs of AIMPLB represent the undivided will of Muslims in India must be busted for good.
Social activist Maria Alam Umar, while welcoming the Centre's stand on triple talaq, told The Times of India that "the Muslim Personal Law Board, too, should be abolished for its "pro-male stand on almost every aspect of Muslim life". She said the board which was set up to explain the intricacies of Shariah, "has over the years turned into a 'dictator' of sorts, consistently favouring men."
We need to just take a cursory look at the AIMPLB's affidavit before the Supreme Court while defending the validity of triple talaq to see how downright regressive and bizarre their logic is. “Polygamy ensures sexual purity and chastity and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head,” stated the affidavit.
“If there develops serious discord between the couple, and the husband does not at all want to live with her, legal compulsions of time-consuming separation proceedings and expenses may deter him from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive."
This is not the time for liberals to sit on fence and let Muslim women fight. If they really care about a free and fair society, as they profess to be, they must make this battle their own.