Tuesday, October 24, 2017
NEW DELHI: Muslim women have come out on the side of rights and justice to question the debilitating Triple Talaq proviso that has rendered hundreds and thousands destitute.
An affidavit filed by the All India Muslim Personal Law Board (AIMPLB) in the Supreme Court supports the unilateral right of Muslim men to utter oral divorce through triple talaq as they are supposedly better than women when it comes to controlling their emotions. This affidavit also claimed thatTriple talaq protects women from being murdered by their husbands in a fit of rage. The affidavit also justifies polygamy thus, “Polygamy ensures sexual purity and chastity and whenever polygamy has been banned, it emerges from history that illicit sex has raised its head.”
Zakia Soman, founder of Bharatiya Muslim Mahila Andolan(BMMA) that has been fighting for the cause of Muslim women asserts, “The Muslim Personal Law (Shariat) Application Act, 1937 that governs Muslims in India is archaic and irrelevant for today’s times. The AIMPLB is a regressive self-styled body; neither do they represent the views of the Muslims in India nor do they have any right to claim hegemony over the religion. The fact that they can call women the weaker sex in an affidavit is shameful”.
A report(2013) published by BMMA based on a study across 10 states of India shows that 92.1% Muslim women want this biased system of verbal triple talaq to stop. 83.3% advocated for the codification of a Muslim family law. 50,000 Muslim women signed an online petition earlier this year to abolish triple talaq and polygamy.
A soft revolution is underway in India, led by a group of Muslim women who believe that the peaceful, rational and equal Islamic ideology has been usurped by dogmatic and misogynist views of a few who see women as the weaker sex. This coming together of victims, scholars and activists seems to be the beginning of a new feminist movement in the Islamic world. These women are seeking reinterpretations of the hadiths and traditions based on Prophet Muhammad’s life.
The central government has also taken an unequivocal stance against unilateral instantaneous Triple Talaq, nikah halala and polygamy. The affidavit submitted by the Union Law Ministry articulates that gender equality is non-negotiable and religious identity can’t be the reason to deny Muslim women equality, justice and dignity. The affidavit reads, “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”.
The central government has pointed out that Pakistan, Bangladesh, Afganistan, Iran etc have regulated their divorce law and polygamy thus substantiating that these practices are not essential religious practices beyond reform.
Muslim clerics in India claim that this affidavit itself is against Islam. National general secretary of All India Jamat Raza-e-Mustafa, Maulana Razvi believes that the Centre has no right to interfere with Islamic law.
The debate around Triple Talaq started with the landmark case of Shah Bano(1985) in which the Supreme Court initially granted divorce and alimony to Bano for life. However following protests from Muslim leaders stating that the court can’t be intrusive, the judgment was overturned.
Much later in 2002, Triple Talaq was rendered legally in the Shamim Ara vs State of UP judgment and the subsequent orders from various High Courts but not many are aware of this.
More recently as Ishrat Jahan, Sharaya Banu, Afreen Rahman, BMMA and other organizations file petitions in the supreme court demanding the ban of Triple Talaq, many Muslim women feel emboldened to open up to bring to light the atrocities they have suffered due to the practice of unilateral Talaq and the lopsided decisions of the Jammat that has paid no heed to women and their rights.
Shabnam (Dindugal), for instance, was married at the age of 17 to a 34yr old man who deserted her just 10days after the marriage. He refused to take her back unless she got more dowry. When Shabana’s family approached the Jammat, they were told “Be happy that your daughter is back safe and move on”. The gold and 40k that they gave the groom as Mehr was never returned. As in case of Shabnam, in most situations when the man approaches the Jammat, they facilitate the process of divorce without any efforts of reconciliation. At best they speak to the girl’s brother or father who mayn’t represent her case appropriately.
Bano(Chennai) is distraught by the 5yr long legal battle she has been fighting since her husband sent a divorce certificate validated by a Qazi. Neither was she aware of the supposed utterance of Triple talaq nor did she get a chance for any kind of mediation or reconciliation. “I wish I wasn't born a Muslim, maybe then I wouldn’t feel at the end of my tether. I could have stopped my husband from indulging in polygamy and have had better access to the constitutional rights that every other citizen is entitled to in the country.” she says. Despite being educated, employed and empowered to challenge her husband’s and his family’s arbitrary divorce procedures in the court, she hasn’t made much progress. When she confronted the Qazi who certified their divorce she was told, “I agree your husband has been unfair, he will be punished by God”.
Badar Sayeed, Bano’s lawyer argues that the Quranic verses are consistently misunderstood or misinterpreted by a few to suit their discriminatory patriarchal interests. She filed a petition in the High Court of Madras 3yrs back, to declare that the Talaq validated by the Qazis has no legal sanctity. The Qazis Act, 1880 was enacted to regulate the role, duties and appointment of Qazis; it doesn’t confer any judicial or legal authority to certify divorces or issue fatwas.
“You can’t change your wife like you change shirts. Triple talaq has to be banned and the final decree for any divorce in the country should be in the court, there should be no multiplicity of proceedings. Personal boards or Jammats have no right to interfere. Isn’t Beto Bachoa for all women in India, including Muslim?” she asks.
The Quran gives equal rights to men and women and establishes that divorce is only the last option after all efforts to arbitration and reconciliations doesn’t work. The first talaq has to be uttered by the husband after he makes sure that the woman is not menstruating at that time or in a state of nifaas (post-natal bleeding).
This is not considered divorce and the couple continues to stay under the same roof separately.
The second and third talaq has to be uttered in consideration of an obligatory waiting period of 3 months (Iddat period), so that they get time for reconciliation and mediation. Also, the husband must return her Mehr, pay her maintenance for 3months and a lump sum amount for future.
If after the 3 talaqs the husband and wife change their mind, they can’t automatically live together again. The woman has to marry another man, divorce him and only then return to the husband (Nikka Halala). Also triple talaq has to be uttered, not written, on post, email or phone. But most men don’t follow this practice. Afreen (one of the petitioners) was divorced via Speed Post.
Nagma(Dindugal) was married at the age of 19 to her cousin and had an abusive relationship since the beginning. He constantly doubted her integrity and commitment to the relationship, alleging that she was interested in other men. As soon as they had a kid, he claimed that the child was not his and threw her out of his house without giving a penny.Few years later she received the certificate by post, a plain paper stating he has already given her a divorce stating Talaq thrice.
While a woman does have the right to seek divorce from her husband (Khula)after returning the Mehr she got, most don’t seem to access it. Legally, women have access to Dissolution of Muslim Marriages Act 1939 which gives women the right to seek dissolution of marriage on nine specified grounds. However, the act doesn’t specify a time frame or a specific procedure by which she can get a divorce. It also doesn’t deal related matters such as maintenance, custody of children, payment of mehr, etc for which she has to file separate cases. This the law remains haphazard and ineffective in protecting women’s rights.
Fatima believes no legal options can help women. “One can even get out of central jail, but not the marriages we are bound to. I was initially married very young to a sick man who died in a year of heart attack. I was then married to a man aged 80, when I was 29. I lived with him for a year after which he disappeared because his daughters from the first marriage didn’t like me. Many years later he appeared and claimed to have given a talaq on the telephone. I don’t know about the existence of laws for women. Even if I want to fight a case in the court, I don’t have the money, time, resources or family support do so. So goes with most women here”, she says explaining the situation in Dindugal and most of Tamilnadu.
The Muslim Women (Protection of Rights on Divorce) Act 1986 is another existing legal recourse available to Muslim women but this too doesn’t say anything about a woman’s right to divorce. It just mentions a few fair and reasonable entitlements of a women that is divorced.
Roja was fooled into marrying a Hindu boy who converted to Islam only to have the privilege of marrying 4 women. 3years and 2 children later, he disappeared without even uttering Talaq. She has been making incense sticks to feed her children, she gets paid 17Rs per 1000sets. She continues to await his return, “If he comes back, I will take him back. After all men do err”. The social structure makes marriage the only option to have a safe, secure life with financial stability.
Zakia Soman explains the social milieu these women are in “The legal ban would be the first step but that can’t solve it all. A multi-pronged approach that involves both legal and social reform to challenge the patriarchal mindset will bring gender justice”.