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Mainstream, VOL LV No 10 New Delhi February 25, 2017

No to Instant Triple Talaaq

Monday 27 February 2017

by Krishna Jha

The cultural meaning of gender, like the cultural meaning of class, is evolved by men and women, according to the spaces they occupy in the society at its roots, and this meaning in itself is intensely political. The options and choices made about how to resist or assimilate and get involved in it are the issues of race, nationality, gender, and class.

It is in the context of these assertions and contradictions that the initiative by the Law Commission seeking views on Article 44 of our Constitution mentioning common civil code has been criticised by the All India Muslim Personal Law Board. The right to religion for every citizen of the country gets violated whenever the issue of uniform civil code is raised, observed the Board. It was critical of the Central Government for opening the option in the name of gender equality.

Prime Minister Narendra Modi, while delivering his poll speech in Uttar Pradesh, tried to win the Muslim support as he said that the instant Triple Talaaq was denial of equal status for Muslim women. The Law Commission has distributed a questionnaire on the issue and also on the deterrents to the uniform civil code.

The Left democratic women’s organisations like the National Federation of Indian Women, All India Democratic Women’s Association, almost all the Muslim women’s organisations and the Left have expressed their solidarity and commitment to the demand of Muslim women against the practice of arbitrary and instant Triple Talaaq. They have argued that acceptance of this demand would bring relief to the affected women. They have also asserted that the personal laws of the majority community too require reform.

It may be pointed out here that the RSS-led Central Government has made claims that personal laws for Hindu women have already been reformed, meaning thereby that it was not the securing of women’s equality but the targeting of the minority communities, particularly the Muslim minority, was their objective. For the Hindu women, it is well known that despite their claims there is strong discrimination concerning adoption, property rights and the right to choose one’s own partner.

With the offensive of the communal forces on the very identity of the minority communities on the rise, any move to push the agenda of Uniform Civil Code, as is being done by the government directly and through its institutions, is counterproductive for the rights of women.

The debate is also opening up on gender relations within the Muslim community, Shaira Bano from Kashipur has challenged the validity of instant “Triple Talaaq”, reviving the controversy once again that had shot up when the issue of protection of women in Islamic legal norms had gained public prominence during the Shah Bano case.

In 1985, 62-year-old Shah Bano filed a lawsuit, seeking alimony from her former husband. The Supreme Court, in this case, had held up her right to alimony, but the judgment was vehe-mently opposed by the Islamic community who considered it to be going against the written rules in the Quran. The debate was also on the extent to which the judiciary could interfere in the personal/religious laws. The Congress Government, which was then in power, passed the Muslim Women’s Protection of Rights on Divorce Act, which made it necessary for the husband to pay alimony to his wife, but only during the period of iddat, that is, 90 days after divorce.

Neither was the initiative taken by the Congress regime new nor were the protests against the personal laws. The organisations of the women’s movement have always fought against the discrimination faced by women in personal laws, across all religions. But it is also true that there have been strong protests against any reforms making it extremely difficult to bring about any change.

It may be significant to go back into history when on August 23, 1985, a private member’s bill was moved in the Lok Sabha by an MP, named G.M. Banatwala of the Indian Union Muslim League, seeking to exempt Muslims from the purview of Section 125, an exemption that was nullified by the Apex Court judgement in the Shah Bano case, pronounced on April 23, 1985. One of the Ministers in the then Rajiv Gandhi Government defended the Supreme Court judgement in the Shah Bano case.

As against his own government, he opposed the Bill in the House representing, as he called it, “... so to say, the ‘progressive’ Muslim point of view”. The judgement was defended by quoting Maulana Azad who had “written that the Quran takes occasion to re-emphasise that proper consideration should be shown to the divorced women in every circumstance”.

As against the Bill, the argument was that only if the downtrodden are uplifted, can the Islamic tenets be said to have been followed and justice done. But the political compulsions played their role and in February 1986, the Bill was introduced in the House to overcome the Supreme Court judgement. It was said then that with this new legislation “Indian Muslim women will be the only women to be denied maintenance anywhere in the world”.

It was one of those occasions when once again the Shariat Act, so far as its applicability was concerned, had to face the challenge. It was one of those instances when the issue of protection of women’s rights as part of the broader fundamental rights came in conflict with religious rights.

In fact, in our country, the Shariat Application Act is to protect Islamic laws in personal legal relationships, though there is no clear definition so far as the laws themselves are concerned. The only concern explicitly shown is about matters of personal disputes, where the state shall not interfere and a religious authority would pass a declaration based on his interpretations of the Quran and the Hadith. Given this background of the matter, it is difficult to have it undergo changes since it raises the question as to what extent should the state (which is supposed to be secular) interfere with the personal affairs of civilians. While the protection of the rights of women has been called into question time and again in such cases, a practising lawyer says: “...majority of those practising Islam consider the laws of the Shariat to be completely correct and so they cannot be subjected to legislative changes considering the fact that freedom of religion, practices and so on, are part of fundamental rights.”

However, it is also true that Shariat has never been static. During the period when the Prophet was alive, the legislation mentioned in the Quran kept developing in response to practical problems faced by the Prophet and his community. After his death too, the presence of different schools of Shariat and the way different modern Islamic countries have applied it to their legal domain, is evidence of the capacity in the Islamic law to be interpreted and developed in ways meeting sometime the needs and sometime the wishes that are taken as the needs of society. It may be pointed out here that many rights that the Quran had accorded to women were denied to them as they were considered to have less intelligence. This was a later addition to support the patriarchy. The Quran by itself considers every human being ‘lil albab’, people of intelligence. Also the Quran has nowhere said that women must look after their husbands, children and the household, though the whole Islamic juristic literature is full of such assertions. These concepts have their origin not in the Quran but in the social ethos that stresses on the supremacy of one over the other. In our country too, despite evidence to the contrary in the Quran itself, the Ulema’s assertions acquire divine status. This is present in the practices of all the religions of the class divided society. It was explicit in the address of Mohan Bhagwat to the Rashtra Sevika Samiti, when he asked them to concentrate on the welfare of the family, kutumb prabodhan.

On November 9, at a press conference called to announce a training camp, Rashtra Sevika Samiti general secretary Seetha Annadanam vociferously defended the exclusion of women from the RSS shakhas. “Our culture does not permit joint shakhas for men and women,” she said. “That is why we have separate shakhas for them.”

Annadanam, in fact, appeared so tied to patriarchal family interests that, while replying to another question, she stood against allowing Hindu women a share in the ancestral property of their parents. “There should be a balance between women’s rights and our traditions, and this should be done on the basis of shastras,” she said. “Otherwise, it would split our families and pit brothers against sisters.”

While addressing the Sevikas on November 11, 2016, at Chhatarpur, Bhagwat made no mention of gender justice or self-choice for women; instead he kept stressing on “matri shakti”, or woman power, and the family values—showing that the women’s group has not been allowed to change even a bit since its formation eight decades ago in 1936. In his hour-long speech, the RSS chief spoke on the woman’s central role of imparting sanskar (values) to children and, thereby, strengthening society and the nation. “Our kutumb vyavastha [family system] has caught the attention of the world,” he said. “Till India’s matri shakti turns active and comes forward, India will not be able to achieve its potential and pristine glory and act as a guiding force to the world,” Bhagwat told hundreds of sevikas, as the members are called, from across the country.

It is obvious that the RSS-led NDA Government does not have any intention to grant the same equality to Hindu women, as they are demanding for the Muslim women. In its agenda it is not justice for women in the country, instead it is an attempt to lead them towards uniform civil code.

On the issue of instant Triple Talaaq, as the Left and democratic organisations are agitating for and demanding change, even the Quran grants women the right to divorce on giving fidyah (compensation) if she fears she cannot keep Allah’s limit; however, the Ulema made the husband’s consent imperative for fear of destabilising the family.

Similarly, as far as the Quran is concerned, there is no sanction for instant Triple Talaaq as the protagonists plead. The Quranic system of Talaaq requires at least three months period to finalise the divorce. During the first two months of this period, there are possibilities for reconciliation for the couple. We have always pleaded that the Muslim community should evolve a consensus on divorce keeping in view gender justice. Instant Triple Talaaq has to be given up.

On polygamy, the Quran spells out in no uncertain terms as it says: “Marry those among you who are single.” (24.32) This is addressed to both men and women and strangely this provision has been totally ignored, while the provision that gives conditional permission for polygamy, applicable in very exceptional circumstances, has been elevated to the status of regular law.

It is important to note that a few years after the death of the Prophet, even though triple divorce found legal sanction, the men who resorted to triple divorce were awarded 40 lashes as punishment as they were perceived to have committed a crime.

The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims. The British colonialists governing India were trying to ensure that Indians be ruled according to their own cultural norms. When it came to distin-guishing between laws made for the Hindus and those for the Muslims, they laid out the statement that “clear proof of usage will outweigh the written text of the law” in the case of Hindus. For the Muslims, on the other hand, the writings in the Quran would be of foremost importance. Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the state shall not interfere.

Such legislations have been made over the years for other religious groups in India as well, thereby framing separate civil codes for different religions in the country. Take for instance, the Hindu Succession Act of 1956, which lays down guidelines for property inheritance among Hindus, Buddhists, Jains and Sikhs. The Parsi Marriage and Divorce Act of 1936 lays down rules to be followed by the Parsis according to their religious traditions. The Hindu Marriage Act of 1955 had codified laws relating to marriage among Hindus. In fact, in 1955 this Act had been amended to include laws on divorce and separation which were previously not part of it.

Apart from these separate civil codes related to marriage, there is a Special Marriage Act as well which was last amended in 1954. It lays down provisions for marital laws irrespective of the religion to which the persons concerned belong. Muslims too can get married under this law. Meanwhile it may be quoted here from the Quran itself that “there is no compulsion in religion” and it does not recognise any racial or birth-based inequalities.

The author is a senior journalist and writer.