And the struggle must go on
FOR LONG HAVE certain issues been discussed within families and the four walls of Muslim households and been labelled as ‘unfair’ and ‘unjust’. But it is when the oppressed unite and come out in the open to protest against injustice that everyone sits up and takes note. Perhaps that’s why demonstrations and public meetings have been a powerful means of change. And perhaps that’s why those who stand against change condemn women taking to the streets as ‘washing one’s dirty linen in public’. Well, this time around, washing one’s ‘dirty linen’ has yielded some results because it focused attention on the need to address the process of Triple Talaq (talaq-e-biddat), or divorce pronounced three times in one sitting. The Supreme Court has put a stop to this manner of divorce.
While Muslim women have celebrated and welcomed the verdict and the Islamic clergy has expectedly reacted to talaq-e- biddat being done away with by calling it ‘a BJP and Right-wing agenda’, has it really brought some respite to Muslim women and taken the fight for gender justice a step forward?
Triple Talaq has been made illegal, but what does this decision give the Muslim woman? A short period of about three months to try and persuade the man to forgo the idea of divorcing her, overcome his anger/intoxication/impulse, bring moral and social pressure on him through the moderation of friends and relatives, and put her own financial and social responsibilities in order. But it is still the man who takes the final decision to divorce the woman. The Court has made no comment on the woman’s right to contest the man’s decision to divorce her; she just has to accept it. There is also no mention of the maintenance or financial support during the three months; a Muslim man is obliged to provide support to the woman he is divorcing for the gap between the first pronouncement of ‘talaq’ to it becoming binding, after which it cannot be revoked. This was one of the reasons that Triple Talaq became part of Sharia; the men paid their mehr (dower) if it was pending and nothing if the sum had been paid before.
So the divorced Muslim woman has no secure house and she would become dependent on her own family for financial, social and moral support. This is what happened with Shayara Bano, a petitioner in this case; she moved back to her parents’ house and was able to fight this two-year- long battle because of the support she had from her brothers.
While the Muslim Personal Law Board and its supporters remained incorrigibly obstinate in refusing to re-analyse the provisions of divorce in the Qur’an, a number of imams and maulvis have come out in support of women demanding this change. They have publicly clarified their positions, written about it and quoted the scriptures to support their claim. Muslim men, too, have shown the courage to uphold the instructions of the Holy Book and condemn this practice as archaic and anti-women. Justice Kemal Pasha of the Kerala High Court has openly questioned these archaic laws and asked for the equal treatment of men and women, as guaranteed by the Constitution, and expressed his support for a just and fair law.
These were the positive signs that projected gender unity within the community and probably helped the apex court consider the need to address the petition. However, support from the community, women’s groups and rational Islamic scholars is not enough and shall not be able to get Muslim women justice.
Shayara Bano’s is the case that brought the fight for equality among citizens of India to the forefront. That this case comes after 30 years of Shah Bano’s demand for maintenance speaks volumes about the way issues concerning women’s rights are always being put on the backburner. Shayara Bano, a woman in her late thirties with two children, had gone for a brief rest to her father’s home after a painful abortion when she received a written divorce: three times ‘talaq’ on a piece of paper. But instead of staying the silent victim, she decided not to accept the Muslim Personal Law and demanded her constitutional rights. This case stirred a hornet’s nest, not only because Shayara Bano invoked the law of the land and asked that it order her husband to pay maintenance, but also because she boldly challenged the validity of her husband’s action of whimsically kicking her out using Triple Talaq. She petitioned the Supreme Court to declare Triple Talaq, polygamy and halala (the custom that mandates that if a woman wants to go back to her husband following a divorce, she must first consummate a marriage with another man) invalid and illegal.
What does the ruling give the Muslim woman? A short period of about three months to try and persuade the man to forgo the idea of divorcing her and put her financial responsibilities in order. But it is still the man who takes the final decision to divorce the woman
In several Muslim-majority countries such as Egypt, Iraq, Jordan, Kuwait, Morocco, Sudan, Syria, the UAE and Yemen, the system of law has completely derecognised the concepts of Triple Talaq and halala.
Any justice-minded person would want to know why it still exists in a democratic India. Why should any religious personal law be allowed to parade these inhuman and illegal practices in the 21st century?
A 2015 survey of around 5,000 women across 10 states conducted by the Bharatiya Muslim Mahila Andolan found that over 90 per cent of respondents wanted an end to polygamy and Triple Talaq; of the divorced among them, almost four-fifths had been given Triple Talaq, and 76 of them had had to consummate a second marriage or perform halala so that they could go back to their former husbands.
In case of a woman seeking divorce or khula, as it’s called, she would have to request the man to say ‘talaq’. Often, he refuses; in a patriarchal setup, men feel humiliated if a woman decides to walk out of a marriage. The woman then has to persuade, beg, cajole him and often offer him money or property. She also has to forgo her mehr or return it if she has already been given it. Even when the man finally agrees to a divorce, it is he who pronounces ‘talaq’ and ends the relationship, never the woman. If he does not pronounce the divorce and the woman separates or does not co-habit with him, Islamic law allows him to marry again since he can have four wives and still not divorce the first one. The woman then approaches the particular school of jurisprudence of her sect, is asked innumerable questions on the reason for her wanting a divorce, and is sometimes made to run around for years before a khula is made possible. There are innumerable pending cases of women seeking a divorce on the grounds of incompatibility, domestic violence, mental abuse and torture, and deprivation of basic rights. These women do not like to approach Indian civil courts since they feel that such a step would excommunicate them and they would not remain Muslim anymore. Why can’t she also say ‘talaq’ three times with a gap of 40 days in between and be free to walk out of a bad relationship?
The verdict is silent on this.
More and more women are taking up jobs to enhance the financial position of their families. A large number of Muslim women have been working from home, such as chikan, zari and zardozi workers, or beedi workers, to name a few. The income they generate is absorbed in the day-to-day functioning of their household and no accounts are kept. The Qur’an does not take into account this contribution of the woman, but Muslim women should be able to demand compensation or a share in the property to which they have contributed. It has to be understood that the world has moved way beyond the times of Prophet Muhammad when women were neither required to work for a living nor did they contribute to household expenses.
Islamic law also upholds the patriarchy in the custody of children. There is no consensus among scholars, but the general rule is that when parents separate and they cannot agree on the issue, then the mother keeps custody of a son until the age of two and a daughter until the age of seven. However, this rule is conditional and dealt with case by case. The period of custody lasts until the age of discretion and independence of the child. After that, the father gets custody.
The Qur’an does not take into account the contribution of the woman to the household. It has to be understood that the world has moved way beyond the times of the Prophet when women were neither required to work for a living nor did they contribute to domestic expenses
Maintenance for the divorced wife has been held to be the mehr under Section 127(3), but it has been emphasised that such an amount should be fair and reasonable, as observed in Bai Tahira versus Ali Hussain (1979), which finds further approval of the Supreme Court in Fuzlunbi versus K Khader Vali (1980), so as to guard Muslim women from destitution. In the infamous Shah Bano Begum versus Mohammad Ahmed Khan case, the Supreme Court had ruled that whether dower has been paid or not, the husband is liable to maintain his wife. Though there is no fixed method of calculation for maintenance, it is usually around 30 per cent of the income of the man. So, by virtue of judicial pronouncements, the rights of Muslim women have been protected, but they will become fruitful only when Muslim women begin demanding this right.
In Shayara Bano’s petition, she demanded this right.
This can very well be managed if religion and law are made out as two different and entirely separate entities. This is not difficult since the Qur’an clearly spells out the five tenets of Islam. These are: faith in Allah and the belief that Muhammad is Allah’s Prophet, the offering of prayers, performance of Hajj, observation of Ramzan, and the paying of zakat (money for charity). So, a change in how divorce is conducted, or alimony and maintenance are determined, or a reform of the process of remarrying the same person, is in no way going to interfere with a Muslim’s faith.
Shayara Bano’s petition also addresses the practice of polygamy in Muslim society; a man should not be allowed to marry while his divorce is being settled, and if he does, he should be held for bigamy. However, this has probably been left for future debate. So, as it stands now, if a man is unable to divorce his wife, he can simply marry another woman. It is possible that some women’s groups feel that banning polygamy would be demanding a lot and that small steps must first be taken to have them granted and implemented. However, women rights activists should realise that this is an opportunity and the right time to usher in other much-needed changes. Women’s organisations must pressure the Government to weigh in on the side of Muslim women. The Indian Judiciary is ready to lend support.
The onus is now on Parliament to format a bill and see to it that a law comes into effect. The BJP has a thumping majority, and such a bill can sail through both Houses if the party wills it. But will the draft bill address all these issues that would acknowledge and provide the same constitutional rights to the Muslim woman as the Hindu woman? Political parties have so far used this issue more to ‘thumb nose’ or ‘protect’ the Muslim community than to provide gender justice. Now, the Congress and BJP seem to be on the same page, and the Prime Minister has welcomed the decision of the court. ‘Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,’ Modi tweeted on August 22nd.
The next six sessions of Parliament before the country goes in for the next General Election are ones to watch and pressure the Government into acting in favour of gender equality. The apex court has given the Centre six months for an enabling legislation.
Asaduddin Owaisi and others have begun alleging that this is a Uniform Civil Code under cover, since it was part of the BJP’s election manifesto. If that is the case, hopefully, this would allow a public discussion on the personal laws of different religions, not just among religious heads and scholars but also the general public and concerned citizens, and would encourage an inter-faith dialogue to draft a Civil Code that provides justice and equality to all Indians.