A Historical Judgement: Victory for our Muslim Sisters
This quote from India’s first Prime Minister, Jawaharlal Nehru’s speech, immortalised a moment – the stroke of midnight on 15th August 1947 - and heralded a new age, as India breathed freedom and unburdened itself of the yoke of centuries of servitude.
These words could be perhaps used as appropriately for the historic Judgement that was pronounced on 22nd September 2017, against the practice of Triple Talaq by the five member bench of the Supreme Court.
While there are three forms of initiating divorce under Muslim law, this particular form of divorce named talaq-e-biddat or instant and irrevocable talaq, an increasingly popular form adopted by men to annul their marriages, has been declared a "manifestly arbitrary" practice, which is not protected by Article 25 (freedom of religion) of the Constitution. Hence it was declared illegal and unconstitutional though as the 3:2 judgement pronounced, would await legislature.
What is it about Triple Talaq that was deemed so ‘manifestly arbitrary’ by the learned judges? The answer to this question forms a seething cauldron of unjust and arbitrary personal laws, that are promoted as valid under variously interpreted religious texts by the custodians of religion – the predominantly male clergy. Who, needless to state, have high stakes in protecting the vested interests of patriarchy.
To give an example, I share here an oft quoted text from Tulsidas’s Ramcharitmanas, which misogynists use extensively to defend their argument about the need to keep women under control:
Dhol gawaar shudra pashu naari, yeh sakal tadarna ke adhikari.
A blinkered, straightforward translation would be: A drum, the illiterate, the low caste, an animal and women must be chastised and controlled.
Interpretations however vary, some stating that the word ‘Tadhna’ has to be phonetically understood as ‘ uplifted’, which means all the stated groups can be uplifted; others say that the words were uttered by the Sea God, Samudra ( when asked to make way for Rama’s army in its passage to Lanka) a foolish entity, roundly chastised by Lord Rama; or perhaps what calls for chastisement are beastly women like the other subgroups mentioned.
The rationale behind my example is that religious texts can be twisted in their interpretations, and employed to keep whole sections of society under the control of those in positions of authority, patriarchy. Triple talaq under the Hanafi Sunni law, has been used for over 1400 years, as per the male whim. The All India Muslim Personal Law Board (AIMPLB) has defended it as a personal article of faith, but now it appears that it does not even fall within the tenets of Islamic law, and therefore merits even less justification.
However, while the arguments fly, what has been unequivocally argued is that it is unjust, conceded even by CJI Khehar, who had defended it otherwise. Triple Talaq can be employed by any man to pronounce that his marriage to a particular woman was over and done with. Drunk or sober, driven by boredom or by the desire to abdicate his responsibility towards one’s family, a man could pick up his mobile, give a call or a WhatsApp, or simply send a letter. A single word uttered thrice, and he was free. The law gave him a weapon to wield: to get more dowry, to excuse violence and a host of other evils that such immunity inevitably brings. While the woman had little to protect herself with, but fervent prayers and a utopian dependency on a man’s commitment.
Shayara Bano’s story, one of the prime petitioners against this practice, encompasses the spectrum of vulnerability, humiliation, violence and injustice that so many women have experienced under this travesty of a law. Married for 15 years with two children, she was tortured for dowry, forced into six abortions, and when the whim overtook him, her husband sent her a note pronouncing the irrevocable sentence. This was sent by Speed Post, as if the man could not bear to waste precious minutes whilst severing his marriage. Ishrat Jahan with four children, Aafreen Rehman and Gulshan Parveen a post graduate, echo a similar tale of exploitation and violence, where they found themselves summarily thrown out of their married homes through a phone call or a letter. Gulshan argues, that if a woman must consent for nikah, why does she have no agency whilst ending it? The other women echo a similar hope that there would be more gender friendly clauses within the framework of divorce laws for Muslims, that would include the clause of mutual consent. They argue, “If marriage is agreed upon by mutual consent, why should divorce not be subjected to the same form of mutual consent?
My own understanding of the impact of this arbitrary divorce was a tale poignantly shared from the other side of the gender divide. This was a young man, the driver of my taxi during a working visit I had made to Bhopal (Madhya Pradesh) in 2010. In the unfolding camaraderie of a shared ride, he spoke about the hopelessness and struggle that had engulfed his childhood, as he along with his mother and siblings, had been thrown out into the streets, when his father uttered the dreaded words in a fit of rage. What was more ominous was that this was not an isolated incident but that, as he said, hung as an unsheathed sword over the children and women of his community - who dreaded its unpredictability, and in some ways its inevitability.
 |
| Women celebrating. Pic: The Indian Express |
The rejoicing over its invalidation by the courts has been shared alike by women’s groups across the country as well as the government, which must be congratulated, the media and the law. The celebration made more iridescent as the ruling casts aside the shadow of a historical wrong. Many decades back in 1985, the Government of the time had developed cold feet and overturned a Supreme Court judgement in the famous Shah Bano case, where the courts had ordered alimony to a divorced woman. Since then the situation of Muslim women has been left largely untouched by legal interventions, as politics and its machinations kept religious and personal laws particularly those of the minorities, outside its purview.
While one needs to exercise caution in stepping into the territory of minority law, a complete ‘hands off’ policy should not be the normative as it has far reaching consequences for a nation’s polity. A nation finally is the sum total of communities of disparate faith and callings and each impacts its larger cultural and social fabric. India performs abysmally on several gender indices as various reports and fora reveal :(http://www.genderindex.org/country/india/, http://www.hdr.undp.org/en/composite/GII)
The indices directly or indirectly reflect the manner in which communities treat their women, whether armed by the tools of culture and society or its most rigid and powerful one – religion! This is a weapon used by the patriarchal faces of the different communities: the khaps, the pandits and the maulvis, who twist their content and shamelessly employ it to fetter and browbeat women into pandering and submitting to patriarchal norms.
The winds of change sweeping across traditional bastions, exemplified by the petitioners themselves, who hail from traditional backgrounds, the coming together of women’s groups such as Bhartiya Muslim Mahila Andolan and All India Muslim Women Personal Law Board
(AIMWPLB )opposing this historic injustice, spells hope for women across the country, of different faiths and strata though they may be.
It is a victory…which gives fresh grist to the battle for a more equal world. “a step, an opening of opportunity, to the greater triumphs and achievements that await us,” to quote Nehru once again.
by
Amita Sahaya
Comments