BJP criticises triple talaq, nikah halala but hasn’t yet clarified its stance; experts say tacit politicisation of personal law at heart of issue

On Tuesday, it came to light that a woman in Bareilly had allegedly been forced to undergo repeated nikah halala by her husband's family. On Thursday, Union minister Arun Jaitley wrote on Facebook that the incident is capable of "shaking" the conscience of society enough to "compel it to take remedial measures." Far from taking remedial measures, the government which Jaitley serves is yet to clear its stand on the issue of nikah halala.

Nikah halala is an Islamic dictum that requires a woman who has been divorced thrice by her husband to marry and sleep with another man before she can return to her first husband. It takes no leap of imagination to conclude that the practice, originally instituted to keep men from mistreating their wives through repeated divorces and reconciliations, is grossly misused.

In October 2016, reported Hindustan Times, a man divorced his wife of 25 years and the mother of his two sons, forced her to sleep with his friend on the pretext of nikah halala and then demanded that she return to him. The 42-year-old woman eventually found out that all this had been done because her husband had lost her to the friend in a bet and had found in the Islamic law, an easy route.

"I cannot get over the insult and shame meted out to me," the woman had told the newspaper.

In the Bareilly incident, which shocked Jaitley so, the woman who was forced to undergo halala (i.e. lawful) rapes by her father-in-law and brother-in-law had been divorced both times with the instant triple talaq — a practice which the government is bent on abolishing with the Muslim Women (Protection of Rights on Marriage) Bill, 2018, that has been passed in the Lok Sabha and is now waiting in the Rajya Sabha.

BJP criticises triple talaq, nikah halala but hasn’t yet clarified its stance; experts say tacit politicisation of personal law at heart of issue

Representational image. ANI

Why then, did the government not include the nikah halala clause in the triple talaq bill itself? Why, even after the Supreme Court has heard petitions filed by political outfits and social justice organisations, has the government not made its stand on such a stark gender injustice issue? Does the fact that the BJP has raked up the issue now, a day after the Congress women's wing president Sushmita Dev said the party would abolish the ban on triple talaq if voted to power, not speak volumes on how keen parties are to politicise personal laws instead of striking them down?

Women's rights activist Zakia Soman said that the answer is in the fact that none of the governments that have ruled India in the 70 years since its Independence have taken any steps in ensuring that practices like nikah halala are abolished. "The Constitution offers women the right to freedom of religion as well. But for reasons that have everything to do with politics, women's issues are constantly bypassed when it comes to bringing laws, especially if the women belong to minority communities. The understanding at the political level is 'let the minorities do what they want to do', and even the BJP government knows that," said Soman, whose organisation Bharatiya Muslim Mahila Andolan is in the process of filing a petition seeking a ban on polygamy and nikah halala in the Supreme Court.

The current BJP government's indecision regarding the nikah halala is in direct contravention of Narendra Modi's pre-2014 poll promise of ensuring safety for women. Vacillation on the part of such a decidedly Hindu-leaning government which censures a Muslim divorce practice but not a direct offshoot of it begs the question if the party considers the issue as going into a territory which will not translate into any election-time dividends. For that, just the triple talaq ban seems to have been considered enough.

The tacit politicisation of Muslim issues is also why, Soman feels, the triple talaq bill could not be expanded to include the nikah halala issue within its ambit. "There should ideally have been exhaustive discussions involving the government and all other parties before a comprehensive bill was brought. But that did not happen. Codified Muslim family laws are the need of the hour now but as long as there is inherent politics, that will not happen," she says.

Soman adds that secularism cannot be an excuse to allow patriarchal practices to continue. Which is probably why, while Jaitley laments the "animal existence" to which the women on Bareilly have been reduced, an apex court petition to abolish nikah halala by one Sameena Begum who claimed she was under pressure to withdraw it was delayed to such an extent that then Chief Justice of India Dipak Misra had to question why it was not pushed sooner. Which is also probably why, while Union law minister Ravi Shankar Prasad asked Congress chief Rahul Gandhi to support the abolishing of nikah halala, the same practice found no mention as what should have been a natural corollary to the triple talaq issue in the the Bill to ban the same.

Nikah halala is validated by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which ensures that marriages in the Muslim community are governed by the Muslim Personal Laws. Islamic clerics and the All India Muslim Personal Law Board have argued that abolishing the nikah halala would mean destroying an essential tenet of Islamic law. But the Jamaat-e-Islami Hind, a constituent of the AIMPLB, did agree that the Jaipur woman’s case was that of rape. All India Majlis-e-Ittehadul Muslimeen president Asaduddin Owaisi, one of the more modern faces of Muslim politics, too spoke out against abolishing both this practice and triple talaq.

A year and a half after it struck down the practice of triple talaq, the Supreme Court is still to pronounce verdicts on polygamy, nikah halala, nikah mutah (temporary marriage) and nikah misyar (an impermanent travel marriage). In addition to Sameena Begum's petition, six more pleas have been filed in the court by victims Nafisa Begum, Sabnam, Zakira Begum and Farzana, and two advocates, Ashwini Upadhyay and Mohsin Kathiri. The government has told the apex court that it supports the abolition "in theory" but is yet to take a stand in court.

While Parsis, Christians and Hindus have all enjoyed changes in their personal laws, the Muslim issue remains one that successive governments and even the decidedly Hindutva-adhering BJP one is doggedly trying to avoid taking a firm stand on.

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Updated Date: Feb 08, 2019 15:51:05 IST

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