Men, their rights, and nothing more; women, their rights, and nothing less.
The raging debate in the country today is on gender justice: can a woman be denied her fundamental rights because she belongs to a certain faith?
The debate was triggered by the Supreme Court (SC)’s decision to examine if triple ‘talaq’ violated her fundamental rights.’’ Central govt and All India Muslim Personal Board (AIMPLB) have filed affidavit in the SC giving their view; and several Muslim Women’s and feminist organisations have asked to be made party.
The genesis of the case in the SC is this: Afreen Rehman, 28, was “beaten up” and thrown out of her “husband’s home.” At her maternal home, she received ‘talaq’ – by speed post! “This is wrong, unfair and unacceptable” she cried and on 17 May 2016 filed a petition in the SC. Her petition was tagged with the petition filed in April 2016 by Shayara Bano, 35, of Uttarakhand who had also received ‘talaq’ by speed post. In August 2016, Ishrat Jahan of Kolkata, given ‘talaq’ on the phone, became the third woman to come to the SC.
Their plea was that triple ‘talaq’, polygamy, and ‘nikah halala‘ – which stipulates that to remarry her husband, a divorced wife must first marry another man, consummate this marriage and then get divorced by him – was misogyny; that these trampled on their fundamental rights under Articles 14 and 15 of Constitution and were therefore unconstitutional.
In December 2015, when dismissing a PIL seeking enactment of a Uniform Civil Code (UCC), Chief Justice T S Thakur said “If a victim of triple ‘talaq’ comes to the court we can examine [if] triple ‘talaq’ violated her fundamental rights.’’ Three victims have now come to the SC. Their PIL are to be heard along with a PIL – “Muslim Women’s Quest for Equality” – generated on SC’s orders, which came up before a Chief Justice headed bench in February 2016. Central govt, All India Muslim Personal Law Board (AIMPLB) and Jamiat-Ulema-e-Hind (JeH) are party to the PIL. Several other organisations that have come to the SC against triple ‘talaq’ – Nisa, a Kerala-based women’s organisation in March 2016; All India Muslim Women Personal Law Board (AIMWPLB); the Bebaak Collective, comprising many feminist groups; and Bharatiya Muslim Mahila Andolan (BMMA) – will also be heard.
JeH and AIMPLB’s argument that Sharia is God’s law and therefore cannot be superseded by manmade laws, ie the Constitution, is hollow because many Theocratic (Islamic) states – Pakistan, Bangladesh, Afghanistan and Iran – have regulated their divorce and polygamy laws showing that these are not essential religious practices that are beyond reform.
As for AIMPLB’s 70 page affidavit in the SC, you may laugh, or cry, at it but would never take it seriously
“On the necessity of triple talaq,” AIMPLB says: “marriage is a contract in which the two parties are not equal . . . male is stronger and female weaker sex . . . she needs him for her defence [he doesn’t]; Shariah grants the right to divorce to husband because men have greater power of decision-making . . . are more likely to control emotions and not take a hasty decision . . . legal compulsions and expenses [of divorce] may [lead husband to] murdering or burning her alive . . . divorce proceedings instead of triple talaq could damage a woman’s chances of re-marriage if the husband indicts her of loose character in court;[because] modern women do not want to be second wives.” In short, “marriage is an institution for men,”
On polygamy, AIMPLB says: ” polygamy is necessitated by the male sexual drive, or the lack of children [always the woman’s fault!]; is a social need because an unlawful mistress is more harmful for social fabric than a lawful second wife; is a blessing not a curse for women because it prevents promiscuity; since women outnumbered men, not permitting polygamy would force women into leading a spinster’s life; it ensures sexual purity and chastity; [banning it leads to] illicit sex; if it is not allowed, a man would divorce an ailing wife, or he might have an extra-marital relationship; polygamy is the solution to the problem of divorced women and widows; would they [women] prefer wedlock for fellow women, or let them be illicit mistresses of men, without any of the rights which a wife gets.” A divorced woman is not given lifelong maintenance because it will encourage her to go astray.
And finally: “India is a patriarchal society, and therefore personal laws of all communities are aligned with the patriarchal notion.”
AIMPLB’s stand has been condemned by secular Muslim, and by many Muslim Women’s organisations and Muslim intellectuals, jurists, commentators and community leaders – as retrograde, untrue and patriarchal. One hundred odd feminists released a Press statement demanding a “gender just” family law for all.
Muslim Mahila Foundation president Nazneen Ansari condemned the AIMPLB for twisting Shariat laws to their advantage. “Why should the Shariat be taken into account only when there’s a debate on the freedom of Muslim women? Why don’t these clerics press for Shariat laws against Muslim men accused of rape and other such crimes?”
Zakia Soman of the Bharatiya Muslim Mahila Andolan called for a nation-wide campaign “to raise our voices against antiwomen practices. Our organisation will get over 50,000 Muslim women in 15 states to get the forms [for this] completed.”
As for the Central govt, for the first time in India’s constitutional history, it opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims. Govt’s submission is: that any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution; that in a secular democracy, religion, or the preservation of plurality and diversity among the people, cannot be a reason to deny the equal status and dignity available to women under the Constitution; that a relook on grounds of constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries – is called for.
In a survey of 4,710 Muslim women across 10 states in 2010, BMMA, found that 88% of them wanted a ban on triple ‘talaq’. So ban on triple ‘talaq’ has a ground swell of support among Muslim women and Muslim women’s and Feminist organisations.
Muslim women have tried for decades but failed to persuade their religious leaders to amend the personal laws that discriminate against them. Institutions such as Urdu media, that can help the women have remained moot. So the women had no option but to come to the SC to adjudicate on their demand for equal rights as guaranteed by the Constitution.
Shayara Bano, one of the petitioners says: “Shah Bano got a ruling in her favour from the Supreme Court but it was later overturned by the [Rajiv Gandhi] government, denying divorced Muslim women their right to maintenance. Had her case been a success, it would have been one battle less for us.”
Contrary to the misinformation by AIMPLB, JeH and a few other Muslim organisations, the PIL in the SC is not an attempt to usher in the UCC through the backdoor. SC has categorically stated in its orders that introduction of UCC is for the legislature to decide upon; courts have no role in it. The current PIL in the SC are on the limited question of ‘talaq’, polygamy, and ‘nikah halala.’
And finally, AIMPLB, is an umbrella organisation of several Muslim organisations. But after Shah Bano, it usurped the mantle of representing the true opinion of Muslims. In reality it has no such authority. It is only an NGO.
Muslim women are in need of emancipation. But the imam khatib are the greatest block in their emancipation.