Triple Talaq- Why are the ‘liberals’ not standing up for the rights of Muslim Women?
- In Politics
- 11:51 PM, Nov 05, 2016
- Shwetank Bhushan
When the feisty young woman Ishrat Jahan from Howrah, filed a writ petition asking the Apex Court, "can an arbitrary and unilateral divorce through 'triple-talaq' deprive the wife of her rights and custody of her children?” rejecting her unilateral divorce, challenging its constitutional validity, The Supreme Court of India agreed to hear it.
But when the Supreme Court passed the buck to the Central Government, contrary to the hope of many "secular-liberals," that the GOI would weasel out like Congress under Rajiv Gandhi, the Modi government bit the bullet.
The Central Government in response to the Apex Court's order on the rights of the Muslim women in matrimonial matters relating to divorce and maintenance, including the 'triple talaq,' for the first time, filed an affidavit that the 'triple-talaq', 'nikah-halaal' and polygamy as practiced by the Muslims in India, were not "integral to the practices of Islam or essential religious practices." You can read the full affidavit here.
The gist of the affidavit can be summed up as:
- The Centre asked the Apex Court to abolish `triple-talaq' and polygamy, calling them unconstitutional customs, however, the GOI refrained from linking its stand to the demand for the Uniform Civil Code.
- The government has cited the instances of changes in marriage laws in theocratic states like Iran, Egypt, Indonesia, Turkey, Tunisia, Morocco, Afghanistan and also Bangladesh and Pakistan.
- The fact that Muslim countries, where Islam is the state religion, have undergone extensive reforms establishes that this medieval practice cannot be regarded as integral to the practices of Islam or essential religious practices.
- The Government's stand on 'triple talaq,' 'nikah-halal' and ' and polygamy is primarily guided by "principles of justice, equality, non-discrimination, and dignity of women," the values that flow from our Constitution, notably, the fundamental rights.
The Supreme Court will hear the matter soon.
Talaq-e-biddat, commonly known as “Triple-Talaq” is one form of divorce practiced by some within the Muslim community in India. There are other types of divorce also in practice in the Muslim community which require negotiations and attempts at reconciliation over a period of 90 days before the divorce is deemed valid.
THE POSITION OF MUSLIM CLERICS:
Faced with an unprecedented clamor for gender justice and equality from the Muslim women, the All India Muslim Personal Law Board (AIMPLB) and the clerics’ strategy is to stall the Center or the Court's move by alleging interference into their religion. They state that the 'triple talaq' is a social evil and must be discouraged, but also reiterate it's legal validity according to religious texts, at the same time.
“Our laws are based on divine inspiration and triple-talaq comes from the same inspiration, that is, Shariat. We have no powers to amend or abolish it. So the triple talaq is irrevocable.”
-Sayed Rabey Al-Hasani Naqvi, President of the AIMPLB, in 2008
The problem with this argument is that it expects the state to give up its responsibility to protect the rights of its citizens and cede its authority to one particular interpretation of religious texts. But there is diversity in interpretations of religious texts as well as in opinions about the practice of Talaq-e-biddat among Muslims in India.
“The ‘so-called’ triple-talaq is an absurdity that militates against the words and spirit of the Quran and sayings of the Prophet. The Quranic verse says a person can’t divorce his wife unless there is an arbitration or reconciliation process, which requires representations from both sides."
- Legal Muslim scholar Tahir Mahmood
If you look at the AIMPLB's affidavit defending the validity of 'triple talaq,' you would understand how downright regressive and bizarre their stand is. It states:
“Polygamy ensures sexual purity and chastity, and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head." Further, “If there develops serious discord between the couple, and the husband does not at all want to live with his wife, 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."
It is an open threat. The reality, however, is that the clergy has a declining support in the Muslim community, hence more brouhaha. On top of that, this entire opposition is not religious, but absolutely political in nature and that’s why those who fancy themselves as representatives or leaders of the religion are opposing it. Also, the myth that the Mullahs of AIMPLB represent the collective will of Indian Muslims in India must be busted for good.
MUSLIM WOMEN's POSITION:
Sometimes I wonder, how brave the Indian Muslim women are for quietly leading a revolution to reform Islamic law, fearless of the backlash from these conservative Islamic clerics.
From Agra to Aligarh to Hyderabad, Muslim women cutting across sections have welcomed the Union government's decision on 'triple-talaq'; many said in chorus that it should be banned at the earliest. Hailing the Centre's decision to oppose the practice, social activist Maria Alam Umar said in Aligarh that not just 'triple-talaq,' the AIMPLB, too, should be abolished for its "pro-male" stand on almost every aspect of Muslim life.
Dr. Nasreen Begum of Agra said the practices of 'triple-talaq,' polygamy and 'nikah-halal' cannot be regarded as essential part of religion. "I wholeheartedly support the Centre on this," she said to TOI. She further added that "Islam does not advocate 'triple-talaq' and it is an arbitrary creation of the AIMPLB.
Demanding an apology from the AIMPLB for stating that "Male sex is stronger and female weaker," Zakia Soman of Bharatiya Muslim Mahila Andolan (BMMA) said, "Their stand that men have greater reasoning power compared to women smacks of a medieval mindset and prejudice against women."
"Triple-talaq' is unilateral and arbitrary. Nowhere in the Islamic world it is legal," said Noorjehan Niaz of BMMA.
Jameela Nishat, of NGO 'Shaheen' of Hyderabad, pointed out the inconsistencies with the AIMPLB's statement and raised the point saying, "There is no oral 'triple-talaq' in Bangladesh and Pakistan. There is no reason why we should continue to have it in India."
In a survey of 4710 Muslim women across ten (10) states conducted by the BMMA, 92.1% of the women when asked whether there should be a legal ban on the practice of 'Triple-Talaq' replied in the affirmative.
CONSTITUTIONAL POSITION:
India is a secular country. Secularism is part of the basic structure as held by the Supreme Court in various judgments and is the unalterable fundamental norm of governance. But since Independence, India has allowed different religions to practice their own personal law in matters of marriage, divorce, maintenance, adoption, and succession.
Instead of following a genuinely secular Uniform Civil Code (UCC), our governments opted an utterly perverse definition of secularism, fearing to lose their vote banks. But this matter of 'triple-talaq' is not about UCC. It is primarily a gender discrimination issue, more importantly about humanity.
To understand it best, we must refer the voice of one of the wisest legal minds India witnessed. Here is a part of Dr. B. R. Ambedkar's speech during the Constituent Assembly debates, responding to a proposal to include the right to follow the personal law of one’s group or community as a Fundamental Right:
“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion, and if the personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.
I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discrimination, and other things, which conflict with our fundamental rights."
In 2002, the Supreme Court held that 'triple-talaq' must be pronounced on sound plausible and reasonable grounds and is effective only when efforts for reconciliation and resolution have failed. In 2007 the Delhi High Court held that a couple’s divorce is invalid if the husband pronounces 'talaq' in anger or fails to communicate it to his wife, leaving no scope for reconciliation. Few would know that the Muslim men in Goa cannot practice 'Triple-Talaq' or polygamy. There is a total absurdity.
But no one ever called the bluff and stated it clearly that the Indian Constitution enjoys primacy before all personal laws. An act of crime is an act of crime and is not just as an offense against an individual, but an offense against the society as a whole; as it disturbs public order; which is why the criminal law is common for everyone.
These regressive practices sit at odds with a citizen's fundamental right to equality before the law, irrespective of gender or religion as guaranteed by the Constitution. Hence, these personal laws, customs, and usage (as this government submitted in its affidavit), "would come under the ambit of Article 13, which lays down that any law that impinges upon fundamental rights shall be void."
It is that simple if there is a political-judicial will.
The ‘SECULAR-LIBERAL’ POSITION:
As the 'triple-talaq' debate rages, regressive minds of the so-called 'secular-liberals-cabal' are getting exposed badly. In the 21st-century, a significant section of the Indian population gets treated as second class citizens in a modern democratic society. For the first time, the government and the court have supported the cause of Muslim women, who have raised their voices against oppression cutting across age and regional divides.
It is disheartening to see India's liberals, who should have been at the vanguard of such a movement and lead the charge against institutionalized subjugation, tight-lipped. Where is the civil society? Is this a battle of Muslim women alone? Does their plight not move our liberals?
How many of you remember the movie called 'Nikaah"? The director, B.R Chopra made a sharp social comment on the Sharia Laws of divorce (Triple-Talaq) and its misuse in Indian Muslim society. It immediately struck a chord with Indian women and resulted in a blockbuster. There was no fuss, apart from changing the name of the movie from "Talaq-Talaq-Talaq" to Nikah, on the insistence of Islamic clerics. But today, one cannot even imagine such a theme in Hindi cinema.
Do you remember Farhan Akhtar, who led the MARD (Men against Rape and Discrimination) campaign? Surely 'triple-talaq' debate would benefit from their voice, only if they chose to speak. All the self-proclaimed Intellectual Khans are silent. It seems they don't want the Muslim women to progress. Where are the liberals?
Surprised to see the profound silence among most secular pretending people on the 'Triple-Talaq' debate. Why is the 'Award Wapasi Gang' not uttering any word? Where is the lady of Shani Singnapur fame?
The victims of this unequal medieval law have some horrific stories to tell. Where Shayara Bano had to undergo six abortions as she was forced by her husband, 25-year-old Afreen was divorced via Speed-Post and a 21-year-old student who was divorced ten days into her marriage through WhatsApp, for instance.
Is this the time for the so-called liberals and feminists, as they profess to be, to sit on the fence and let Muslim women fight? Nothing exposes India's liberals more than their collusion with medieval fundamentalists on the 'Triple-Talaq' issue.
CONCLUSION:
Why don't these Muslims leaders for once think on the issue as a father or son and not as a husband? Because Indian Muslim leaders are fighting for Islamic identity and not for Muslims and Indian seculars do not stand for Muslim women's liberty.
The argument is that it is essential to the religious identity of the Muslims that their personal laws remain untouched by the state. Therefore any intervention by the state in personal laws would threaten the ability of Muslims to preserve their religious identity in the same form.
All of this poses a danger, not to the preservation of the identity of Muslims as a whole, but of those Muslims who believe that it is crucial to the preservation of their identity that they have the power to declare that their personal law is above the constitution.
The Center must be applauded for breaking away with the status-quo of past governments and stating that gender equality in a multi-lingual, multi-ethnic and pluralistic, secular democracy such as ours is non-negotiable.
I request you all to check this Appeal and the questionnaire of the Law Commission of India, and use remarks section to voice your concerns; let law commission know your stand.
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