A week from now will a process be set in motion, by which a wife, hearing the dreaded words "talaq, talaq, talaq", could turn around and tell her husband: "Sorry, sir, I’m still your wife, the highest court has said so?"
On 6 September, the Supreme Court takes up the plea filed by Shayara Bano of Uttarakhand in February, to hold unconstitutional the practices of "triple talaq" — unilateral instant divorce pronounced by a husband, halala (remarriage to the same spouse after the divorced woman consummates her marriage with another man and gets divorced by him), and polygamy.
Two women divorced through triple talaq from Jaipur and Kolkata have also approached the Court. Their petitions and a number of supportive pleas filed by Muslim women’s organisations, as well as by the Centre for Study of Society and Secularism, have all been bunched together.
Opposing these petitions in court are the Jamiat-Ulema-e-Hind (JUH) and the All India Muslim Personal Law Board (AIMPLB).
This is at heart a fight between women wanting change and religious heads opposing it. It’s reached the Supreme Court primarily because a golden opportunity to end the practice of triple talaq prevalent among Sunnis, and acknowledged even by the All India Muslim Personal Law Board as "sinful", has presented itself.
In December, a bench headed by the Chief Justice, refusing to entertain a PIL demanding a Uniform Civil Code, stated: "If a victim of triple talaq comes to the court and questions the validity of the… procedure, we can surely examine the legality of triple talaq and find out whether it violated her fundamental rights." It would have been silly indeed, if such victims had not seized this opportunity.
However, this isn’t the first time Muslim women have gone to court against the way their husbands have interpreted their personal laws. But every time they’ve done so, it’s after having failed to get their rights from their religious heads.
It’s not as if solutions within the community haven’t been tried. Muslim groups have drawn up model nikahnamas (marriage contracts), forbidding triple talaq. But who will ensure they are implemented? The Board’s own model nikahnama, drawn up a decade ago under pressure from women, prescribes talaq according to the Quran, wherein divorce is a properly thought-out procedure requiring arbitration. But the Board has done nothing to propagate this nikahnama, which anyway doesn’t lay down punishments for husbands who flout it.
Courts have done more justice to women, and to Quranic injunctions regarding them, than the religious establishment. In 2002, the Supreme Court (Shamim Ara vs State of UP), held that only a talaq which follows the Quranic procedure is valid. High Courts have followed suit.
Yet, men continue to divorce their wives using these three words, with full support from religious heads. Only a few women thrown out like this have the inclination and means to challenge these talaqs in court and render them invalid in accordance with precedents.
But what is expected of the Supreme Court this time isn’t just a reiteration of the Shamim Ara judgment. The practice of triple talaq per se is sought to be banned. The argument against it this time in the many pleas is not just religious, but also Constitutional: Do these provisions of Muslim Personal Law, as practiced in India, violate the fundamental right of equality to all guaranteed by the Constitution?
The JUH and AIMPLB say that the court cannot ban triple talaq as that would be a violation of the Muslims’ fundamental right to freedom of religion. But there’s enough material to prove that this practice is nowhere approved of in the Quran. Indeed, it is banned in most Islamic countries.
Interestingly, in the recent Haji Ali judgment, the Bombay High Court dealt with both aspects: religious and Constitutional. It held that the trustees of the Haji Ali dargah had failed to prove that their decision to forbid women from entering the shrine’s sanctum sanctorum was an "essential and integral part" of Islam. Additionally, their decision violated the fundamental right to equality.
The current triple talaq case can’t be viewed as a sudden phenomenon of Muslim women rushing to court. A plea to the Supreme Court to declare the entire Muslim Personal Law unconstitutional had been made 30 years back by young Shahnaz Shaikh, who headed a Muslim women’s organisation in Mumbai. Her plea however, got lost in the furore raised by the Supreme Court’s Shah Bano judgment of 1985, which granted an old Muslim divorcee a monthly maintenance for life under a secular law.
The Shah Bano decree was no different from others made in similar cases. But the remarks on Prophet Muhammed made at the end of the judgment were used by Muslim politicians and religious heads to whip up a frenzy. Shah Bano was attacked till she voluntarily gave up her legal right. Parliament enacted a law aimed at depriving Muslim divorcees of the protection of the secular law. (In 2001, the Supreme Court laid down a liberal interpretation of this law.)
The few Muslim voices in support of Shah Bano were drowned in the din of "Islam in danger" created by the community’s male leaders. A survey done by this writer at that time, of those actually affected by this development, ie, Muslim divorcees claiming maintenance, most of them poor and illiterate, had shown that they were, to a woman, against triple talaq and the move to remove them from the purview of a secular law that gave them lifelong maintenance. But none of the saviours of Islam cared to ask them, and they had no forum to express their opinion.
The day the new law was enacted, Shah Bano’s supporters wore black badges. When would the day come, they wondered, when Muslim women would acquire the strength to influence new legislation that affected them?
Well, that day has come. Shah Bano had little support; Shayara Bano has tons. The organisations supporting Shayara Bano’s plea are based in Kozhikode, Mumbai, Chennai, Lucknow. Whether reformist, wanting change within the ambit of the Quran, or radical, invoking only the Constitution, they represent a new generation of women who aren’t afraid to study and interpret the Quran by themselves, to run legal centres for women, and to come out on the streets to demand their rights.
Expectedly, the Ulema characterise these women as not representative of the average Muslim woman. But like in Shah Bano’s time, even today it is the Ulema who remain disconnected from the women of their community. A survey of 4,710 women in 10 states by the Bharatiya Muslim Mahila Andolan found that 88 percent of them wanted a ban on triple talaq. The Andolan has sent 50,000 signatures in support of such a ban to every authority.
It’s not women alone, or even intellectuals. The all-male Sunni Ulema Council recently asked the AIMPLB to treat the pronouncement of triple talaq by a husband as just one pronouncement, as done by the Ahl al-Hadees sect. This way, the pronouncement doesn’t become irrevocable. The Board refused.
The women who’ve petitioned the Supreme Court are being termed by the Ulema as RSS agents. The credentials of these organisations (except one) rule that out. Whether in Shah Bano’s time, when the Congress was in power, or now, Muslim women who’ve spoken out against their leaders have always been told that the community is under siege, now’s not the time to speak up as women; doing so would mean supporting "the enemy". This time, "the enemy" is ruling the country.
The question is: how long should Muslim wives allow their lives to be ruined by their husband’s right to divorce them at a drop of a hat? With even the Supreme Court having ruled against it, when will the time be right for Muslim women to demand that this practice be legally abolished?
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Updated Date: Sep 03, 2016 12:23:58 IST