Triple Talaq: Holding women culpable to avoid un-Islamic rulings

By Priyam Vada

The debate over passing a bill on the gender and religion sensitive issue of Triple Talaq has been simmering up with different ‘flag bearers’ of women’s rights coming forth to show their solidarity with Muslim women but with their own share of prejudices. While the Supreme Court on 22 August 2017 has already struck down the practice of Triple Talaq with a bench split of 2:1:2 citing their respective reasons that are in retrospect of the constitution, religion and democratic rights, it is surprising to see how the Centre and All India Muslim Personal Law Board (AIMPLB) being two prominent “well-wishers” of Muslim Women have interpreted the judgement .

Centre: Gender equality is non-negotiable

The Lok Sabha, where the Centre has its majority, on 28 December 2017 passed the Muslim Women (Protection of Rights on Marriage) Bill under which the practice of Triple Talaq is criminalised as a cognisable and non-bailable offence under the Code of Criminal Procedure, 1973. It proposes punishment for pronouncing talaq upon one’s wife that extends to three years in jail with a fine.

The bill also provides for ‘Protection of Rights of Married Muslim Women’ by granting her custody of minor children and providing for ‘subsistence allowance’, determined by a magistrate. But this will do little to provide justice to Muslim women who are deprived of their rights under Shariat, are highly uneducated to realise their rights and are financially dependent on their husbands, so punishing their spouses (valid even without the consent of wife) will only demonise Muslim men leaving the wife outcasted in society and ceasing any possibilities of reconciliation in marriage. The Centre claims that “gender equality is non – negotiable” which is justified but why only in the context of Muslim women? Today a Hindu Man who rapes his wife (while they are separated) is not subjected to prosecution until the wife approves which makes us question the communally selective criteria of the centre that penalises only Muslim men and the urgency to consider it as a criminal offence (not even a civil offence).

Challenging Section 375 of the IPC

Also, if the centre cares so much about empowering women with agency and autonomy in marriage then why not challenge Supreme Court (SC) judgement over Section 375 of Indian Penal Code (IPC) that rules – ‘A man’s sexual intercourse with his wife above the age of 15 as NOT considered rape.’ Just because a Hindu marriage in India is considered sacrosanct so its violation of women’s rights and dignity is generally ignored to sustain the social institution and appease the Hindu society. This has to be given a serious thought in terms of reformation given the centre’s urgency to stand by women’s rights, especially that section of women whose sufferings are caused by irrational orthodox religious beliefs.

Leaving aside the women in general, the iteration of safeguarding Muslim women’s interests also appears to be a delusional stand where the Centre only focuses on proposing a harsh retribution for the husband on the behest of women petitioners and organisations like Muslim Bhartiya Mahila Andolan (MBMA) while paying no attention to the key changes they suggest in the Bill. This way the Bill appears to be partial and still does not impart complete justice to a married Muslim woman.

Instant Triple Talaq and Nikahnama

In this conundrum of Triple Talaq, women are undoubtedly the major stakeholders but there are bodies like AIMPLB that oversee the application of Muslim Personal Laws in the country and thereby formulate what is to be followed under the ambit of Islam. AIMPLB has long maintained a stand of triple talaq being an “integral part of their religion” and which they claim has constitutional protection under article 25. Even minority judgement of the SC, provided by former CJI J.S. Khehar and Justice S Abdul Nazeer has favoured a jurisprudential position that a practice that is an “integral part of a religion” is presumed to be constitutional – whether it violates constitutional values such as equality dignity, fraternity, expression, and life. However, the validity of triple talaq under Islam is debatable as Muslim women themselves have claimed that the Quran does not provide for it.

Many Islamic nations like Bangladesh, Turkey, Iraq, Tunisia, Algeria, Pakistan and Egypt too have banned the practice so why should it continue in a progressive country like India in the veil of Islam? The rising petitions and SC judgement (provided by majority judgement by Justice Kurian Joseph) overruled Triple talaq as being “against the tenets of Islam” thereby compelling the Muslim Law Board to check it’s validity. But what more could be expected from a patriarchal body that stringently follows Shariah and is still not free from the medieval mindset? The Board’s long list of suggested puritanical measures has proven to be ineffective because they condone this abhorrent practice in some way or other and hence are opposed by women. For instance, asking for a steep amount of Mehr or inclusion of specific clauses (that are gender sensitive) in Nikahnama (marriage contract) like the rejection of instant Triple Talaq has proven to be a void in the face of gender equality.

Nikahnamas are generally drafted by Qazis (affiliated to the AIMPLB) who position the bride in a vulnerable state. “In a survey, we did of women, we found that 50% of wives don’t even know where the Nikahnama is kept in their marital homes” – says Noorjehan Safia Niaz, a co-founder of BMMA. “In our culture, the bride’s family has a huge inferiority complex and so they don’t feel comfortable asking for a large Mehr amount in the contract. Also, mentioning divorce in a Nikahnama is considered inauspicious.”                               

Yet another disparate provision

While Islam only gives the “privilege” of instant triple talaq to men, it does offers women the ability to divorce their husbands through Khula – a procedure in which the wife returns her Mehr (bride price) to the husband in order to break off the marriage. But in many cases like that of 58-year-old Shamshad Begum, who filed for talaq after suffering from domestic violence for 35 years in her marriage, the victim is unable to exercise her right to divorce as such a procedure vacillates easily as the real power lies in the hands of Qazis and Islamic clerics.

On 22 May 2017, the AIMPLB issued another questionable provision, that of excluding the Triple-Talaq in one sitting (talaq-e-biddat) in the Nikahnama (contract) at the time of wedding which can be easily counterfeited in words of advocate Anand Grover. “What if a husband does not agree to the advice?”, the Board further urged the community for a social boycott of men who utter Triple Talaq in one go. While this way the board thought to minimise Triple Talaq cases but they soon faced criticism as organisations like BMMA and Qaume Majlis –e- Shoora finds this practice unacceptable and in violation to Article 17 (Abolition of Untouchability). Such a social boycott does little to reduce the inimical effect of instant triple talaq on a woman and only promotes discrimination and hostility towards the man nullifying the purpose of reducing a woman’s suffering.

Women held culpable to avoid Un-Islamic sentiments

Hence, all these anachronistic tactics opted by AIMPLB seem to dodge the issue of women’s rights which Muslim women have been demanding since 1986 after the Shah Bano judgement. The combined effect of petitions filed by BMMA, and women like Shayara Bano, Ishrat Jahan, Gulshan Parveen, Aafreen Rehman and Atiya Sabri along with the impulsiveness shown by the Centre in the matter, plus the need for a legislation over the issue of triple talaq (as vindicated by SC) has petrified the conservative AIMPLB to the extent of accepting the unconstitutionality of the practice and take reformist measures.

In a post-colonial modern India, there lies no justification for the regressive, inhumane and undemocratic practices against women or men (if there are any) under Personal Religious Laws– be it triple talaq, marital rape, domestic violence or others. If our faith in religion directs us to violate fundamental rights then the apex court should step in as secular-theoretic adjudicator to embolden the constitutional values just as the majority judgement has proven in favour of the triple talaq judgement. Religion is no moral arc to impart justice but the law is. Religion has for centuries sanctioned social evils like untouchability, apartheid, the sati system, dowry, child marriage and in present times, it considers abortion, homosexuality as sinful. Hence, relying solely on it will only dehumanise us as a society. As far as the current Muslim women’s demands are concerned, it would be noble to stick to the proposed changes in the Muslim Women Bill 2017. If the Centre really wants to pay heed to their demands and for the AIMPLB to NOT hold women culpable, it calls for a positive change by calling it Un-Islamic.

Featured image source: Pixabay