More than 50,000 Indian Muslim women and men have signed a
petition demanding a total ban on the "un-Quranic" practice of the
unilateral triple talaq or divorce and "nikah-halala" under the
mantle of the BMMA.
In 2016, Shayara Bano and Afreen Rahman, unilaterally
divorced by their husbands, approached the Supreme Court of India, demanding an
end to triple talaq, seeking justice from the courts to nullify a practice
which is not only unconstitutional but, according to the BMMA and a number of scholars,
also "un-Quranic".
Both cases have opened a Pandora's box, and now the question
of whether it is the right time to abolish the practice in India is being
debated by all quarters of the media and civil society.
Inside Story - Should India review Muslim divorce?
Why ban it?
Over the past six years, the BMMA has been working with
hundreds of women who have been suffering as a result of a unilateral divorce.
What makes the conditions of these women worse are sanctions
from religious seminaries.
Darul Uloom Deoband, one such revered seminary, has often
validated divorce given by a husband on the phone, by written communication,
and also where a husband repeats the word
"talaq" thrice, even in the absence of his wife.
According to the findings of a BMMA study, more than 90
percent of the 4,710 women interviewed wanted a ban on unilateral divorce.
"Triple talaq creates a power dynamic in a marriage
which is greatly in favour of the man and oppressive to the woman," says
filmmaker Shazia Javed, who is currently working on a documentary project on
the issue, called 3 Seconds Divorce.
Litigation or reform?
After the Shah Bano verdict of 1985, when a court granted a
70-year-old divorcee maintenance for life, and the controversial Muslim Women
Act - which was passed to overturn it when that judgement created uproar as
being intrusive and against Muslim laws by the All India Muslim Personal Law
Board (AIMPLB) and others - there has hardly been any evident effort by the state
or the judiciary towards reviving the process of reform towards gender-just
laws.
With the Muslim community entangled with issues concerning
its identity and socioeconomic security, working towards securing the basic
human rights of Muslim women seems to have been relegated to the background.
Here are five arguments the AIMPLB provided to the SC in
favour triple talaq:
1. Triple talaq provides security to wife
The afidavit say, “Granting husband the right to divorce
indirectly provides security to wife. Explaining the reasons for this, it says,
“Marriage is a contract in which both the parties are not physically equal.
Male is stronger and female weaker sex. Man is not
dependent upon woman for his protection. On the contrary,
she needs him for her defence. If there develops serious discord
between the couple and husband does not at all want to live
with her, legal compulsions of time consuming separation proceedings
and expenses may deter him from taking the legal course. In
such instances, he may resort to illegal, criminal ways of murdering or
burning her alive.”
2. Women get killed when men don’t have easy divorce
“Needless to add, a husband who does not fear God may do
anything against his wife whom he hates. For only he is with her in the
darkness of night. He has more chances of covering up his crime. Often do
culprits get the benefit of doubt. This accounts for the rise in the cases of
women being murdered and burnt alive.”
After Alleged Rapist Gets Bail, Frightened Victim Attempts
Self-Immolation
3. Obtaining divorce from courts scandalises women’s
character, for men the damage is little
“Securing separation through court entails that the
weaknesses of the opposite party be brought into public domain. Some moral
failings
are considered more scandalous for women in our society. For
example the charge against a male that he has loose conduct and
temper may damage only a little his prospects of remarriage.
However, husband’s same charge publicly against his wife about her
loose character may deprive her the chance of remarriage.
She may be more harmed than benefitted by court proceedings.”
4. Obtaining divorce from courts “deters re-marriage”
prospects of men, women
“Further, it is not unknown that securing separation through
courts takes a long time; this further deters the re-marriage prospects of the
parties. In addition to the above, in cases where serious
discords develops between the parties and the husband wants to get rid of the
wife, legal compulsions of time consuming separation proceedings and the high
expenses of such a procedure may deter him from adopting such a course and in
extreme cases he may resort to illegal criminal ways of getting rid of her by
murdering her.”
5. Triple Talaq is sin, but ‘valid and effective’ form of
divorce
“It is submitted that though pronouncement of Triple talaq
is considered to be a sin it is still a valid and effective form of divorce. In
Islamic Jurisprudence many times an irregular or improper
nature of an act does not affect the legal consequences of the Act. For
instance, it is not lawful to appoint a sinner as a judge However, if the state
appoints a sinner as a judge and he passes a judgment, that judgment will be
effective, provided it is within the limits of Sharia.”
The Supreme Court said the question whether divorce under
the Muslim Personal Law needs to be supervised by either courts or by a
court-supervised institutional arbitration falls under the legislative domain.
The observation was made by an apex court bench headed by
Chief Justice Khehar, after hearing the plea filed by one Shayara Banu, who had
moved the apex court challenging the validity of triple talaq.
Banu had stirred a hornet`s nest after she moved the Supreme
Court to challenge the triple talaq under the Muslim Personal Law, under which
a man simply has to utter `talaq` thrice to divorce his wife.
Banu has also challenged the concept of `nikah-halal` in the
Supreme Court, under which a woman must consummate another marriage in order to
go back to her first husband, if she wants to.
Earlier also, several women have filed a petition before the
Supreme Court seeking the quashing of the triple talaq practice. The Central
government has also told the top court that it is against gender injustice and
is for equality between men and women under the Constitution.
In December last year, the Allahabad High Court termed the
Islamic practice of divorcing a woman by uttering the word "talaq"
thrice as unconstitutional.
"Triple talaq is unconstitutional, it violates the
rights of Muslim women," ruled the High Court, adding that no personal law
board is above the Constitution.
All India Muslim Personal Law Board, however, had rubbished
the stand taken by the Narendra Modi government that the apex court should
re-look these practices as they are violative of fundamental rights like gender
equality and the ethos of secularism, a key part of the basic structure of the
Constitution.
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