Triple Talaq: Our Muslim Neighbours Have Moved On, But We Haven’t

Unlike the political class, the Indian judiciary should take bold steps on triple talaq, writes Zakia Soman.

Women in poor and backward communities are bound to be further excluded. The conservative patriarchal leadership has failed to uphold the fundamental rights and entitlements of Muslim women. For them, the idea of gender equality is anathema.

Muslims, the largest minority in India, face several challenges. Of the 17.40 crore population (according to the 2011 census), large numbers live in poverty, educational and socio-economic backwardness, with nominal political representation. Muslim women face multiple marginalisation owing to the lack of opportunities for education, income, and legal discrimination in matters of personal law.

The concepts of womens’ human rights and equal citizenship are alien and viewed with suspicion, even hostility. Even today, the general belief is that women should stay either at home or behind veils. No wonder, then, that practices such as triple talaq and halala persist in our society despite them being unQuranic. Our call to abolish this practice is met with hostile reactions. Shayara Bano had no recourse other than going to the court as the conservative clergy would never enable her to get justice.

Banning Triple Talaq

The Quran calls for a process of dialogue, attempts at reconciliation, followed by mediation over a period of 90 days before divorce. Triple talaq as practised in India has no mention in the Quran. Triple talaq is illegal in most Muslim countries across the world, including our neighbours, Pakistan and Bangladesh. And yet, the regressive religious bodies are resisting attempts to abolish it, despite the fact that Muslim women themselves want to end it.

In our study, Seeking Justice Within Family, Muslim Womens’ Views On Reform In Muslim Personal Law, this becomes clear. This study was conducted in 10 states with a sample of 4710 women in 2015. An overwhelming 88.3% have called for a legal ban on triple talaq. 89% of the women surveyed have called for a comprehensive reform in Muslim personal law through codification. They have called for the age of marriage to be 18 and 21 years for girls and boys respectively. 91.7% of women have called for polygamy to be banned. 90% have called for Qazis to be made accountable to law based on principles of gender justice.

In yet another study conducted by us, based on over 100 case studies of women who have suffered triple talaq, we have called for an immediate ban on this practice. We have registered cases of women who have been divorced unilaterally, instantly, in absentia, over SMS, over email, over the telephone, through postcard, etc.

Reform Personal Laws

Nehru and Ambedkar championed the Uniform Civil Code because they were apprehensive that our patriarchal society will deny justice to women despite Constitutional provisions. They were afraid that Indian women from all faiths and backgrounds would continue to suffer subjugation and oppression in marriage, in family and in property matters. They thought a common code for women cutting across all religions could pre-empt such injustice. But unfortunately, they were opposed from all quarters, mainly by the Hindu right. It was perceived as a threat to our ancient culture and heritage. Nehru was forced to abandon the idea of the Uniform Civil Code.

Instead, reform was brought in through the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956. The Christians and the Parsis too amended their own religious text based personal laws to enable gender justice. But the Muslim women were left to deal with the injustice in their communities. The Shariat Application Act, 1937 has never been reformed or amended. It is silent on triple talaq, halala, polygamy, age of marriage, custody of children, womens’ share in property – all key issues in the life of a woman.

Abolish Triple Talaq

• Triple talaq has no mention in the Quran and the practice is considered illegal in many countries, including Pakistan and Bangladesh.
  
• 88.3% of women called for a legal ban on triple talaq in a 2015 study conducted by the BMMA in 10 states, with a sample size of 4710.
  
• Attempts to bring in a Uniform Civil Code have suffered a blow so far due to political opposition, especially from the Hindu right.
  
• The Shariat Application Act, 1937 has never been amended and is silent on contentious issues such as triple talaq, halala, polygamy, womens’ share in property, etc.
  
• Unlike the political class, courts can undo the injustice perpetrated against women by declaring triple talaq unconstitutional.
  

Judicial Intervention Needed

The conservative Muslim patriarchs supported by political parties and elected representatives have systematically thwarted any attempts to reform the Muslim personal law. In short, they are to be singularly blamed for blatant violations of Quranic injunctions on gender justice in the form of practices such as triple talaq and halala. This injustice must end.

The courts must come in, as the political establishment has failed in their Constitutional obligations. They have openly allowed free play at the hands of conservative patriarchal bodies that control the lives of ordinary Muslim women and men. They have been instrumental in the denial of Quranic justice to Indian Muslim women. This must change.

The right to religious freedom enshrined in the Constitution must be upheld. This right equally applies to male as well as female citizens. They have distorted the meaning of this right giving superiority to men over women and so the injustice can continue! Triple talaq has no validity in theology, it can have no validity in Indian law. It must be banished from Indian society.

(The writer is co-founder of Bhartiya Muslim Mahila Andolan (BMMA))

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