Instantaneous triple talaq in one go, is against the Quran, the Indian constitution and a woman’s human rights. Spurred by a lone Muslim woman’s charge, a brigade of activists and supporters is urging the Supreme Court to ban this “abhorrent practice”
By Ramesh Menon
It’s remarkable how courage can suddenly erupt in completely ordinary lives constrained by numerous fears and inhibitions, to become the foundation for turning points in history. Sometimes, it just takes a lone trigger to spark that act of courage. When Shayara Bano, who had been married for 14 years, saw a letter in the post from her husband, Rizwan Ahmed, she thought he must be asking her to return to him after he dropped her off at her parents’ home in Kashipur, Uttarakhand. But the letter just had three words: Talaq, talaq, talaq.
In seconds, her world crumbled. Slowly, haunting images of her husband indulging in consistent domestic abuse, forcing her to undergo half-a-dozen abortions and threatening her with divorce time and again returned. Images those 14 years had piled up.
She also remembered how she had been a simple, happy girl studying sociology in Uttarakhand before she got married. She does not know how she summoned up such courage, but she decided to put up a fight. This February, she filed a case in the Supreme Court seeking a ban on triple talaq as it is usually practiced in India. She is now fighting for thousands of other Muslim women who had been similarly wronged and is also challenging the male-dominated Muslim law-making bodies. She soon realized the import of the step she had taken as overwhelming support began to pour in. She had catapulted a private issue like triple talaq into a national debate.
As Firoz Bakht Ahmed, the grandnephew of Maulana Abul Kalam Azad, the famous freedom fighter, points out, “In her petition, Shayara has challenged ‘instantaneous triple talaq’ and not triple talaq itself, which is allowed by the Quran as long as the three utterances are spread over 90 days. Shayara’s is the first such case where a Muslim woman has challenged a personal practice, citing the fundamental rights guaranteed by the constitution. With the All India Muslim Personal Law Board (AIMPLB) deciding to oppose any move to scrap triple talaq and contest the Shayara Bano case, the stage is set for another Shah Bano-like confrontation like in the 1980s.”
Since they set up the Bharatiya Muslim Mahila Andolan (BMMA) in 2007, activists Zakia Soman and Noorjehan Niaz have documented thousands of heart-rending stories from more than 30,000 of its members across India. Many of them have been victims of triple talaq. A 2013 BMMA survey found that 92 percent of women want a ban on triple talaq and 88.3 percent want the legal divorce method to be that of talaq-e-ahsan, which is spread over 90 days and involves negotiation and is not unilateral. The survey, which had 4,710 Muslim women respondents in 10 states, showed that they sought reform and codification of Muslim law based on Quranic principles. They felt they did not have the rights enshrined in the Quran.
That maintenance is a real issue can be gauged by the fact that the families of 73.1 percent earned less than Rs. 50,000 annually. Nearly 53.2 percent had faced domestic violence. Shockingly, 95.5 percent of them had not heard about the All India Muslim Personal Law Board. Mumbai-based Niaz told India Legal: “Triple talaq is ruining the lives of so many women. Men find it so easy as they just need to utter talaq three times. Men are getting away with it as there is no law that can punish or stop them. Daily, we hear so many painful stories from women. This is what gives us the energy to fight, demanding legislation to ban triple talaq.”
More and more Muslim women in India are finally finding the courage to fight for their legal rights in matters related to marriage and divorce. They are now challenging the concept of triple talaq and demanding a ban on it. They are capturing the imagination of other Muslim women who until now suffered silently and had similar stories punctuating their lives – being divorced through SpeedPost, Facebook, Skype, WhatsApp, text messages and phone calls without their consent and sometimes even sans their presence. A word repeated three times had wreaked havoc in their lives and changed them forever. It is not easy to just pick up the shattered pieces and move on especially since there are several problematic issues with alimony in Muslim personal law.
In April, another woman, Aafreen Rahman from Jaipur, became the second petitioner in the Shayara Bano case after her husband used SpeedPost to divorce her – sending a letter with talaq written three times.
Though this is contrary to the Quranic tenets of justice, in addition to violating several rights guaranteed by the constitution, Muslim women who go to their community courts do not get justice. These courts, dominated by conservative male elites, often uphold such divorces.
Then there is the practice of nikah-halala. If the husband is ready to take back his divorced wife, it can only happen if the wife marries another man, consummates the marriage and then divorces him—the process of nikah-halala. Shayara Bano has asked the Supreme Court to also ban nikah-halala and polygamy which many women now see as typical patriarchal practices that violate their human rights.
Support for Shayara Bano is snowballing. The BMMA has collected more than 50,000 signatures of Muslim women and men against triple talaq, nikah-halala and polygamy in its nationwide campaign. The National Women’s Commission has announced that it will also become a party to the Bano class action suit which means that a group of people with similar grievances get together to sue as a group.
At 28, MBA graduate Afreen was happy two years ago when a match with a lawyer based in Indore worked out. But, soon after the wedding, her trauma started as she became a victim of domestic violence. Reason: More dowry. Her brothers had taken a huge loan for her wedding so she chose to silently suffer and never told her parents. A year later, her husband threw her out of the house. Her parents initially pleaded with her husband to take her back. He did so, only to throw her out again. Then came the letter by Speed Post, divorcing her. The Supreme Court has now accepted her petition challenging the talaq and asking for triple talaq to be banned. It is now part of Shayara Bano’s petition.
The practice is already banned in 22 Islamic nations, including Pakistan and Bangladesh. Indonesia, the only country with more Muslims than India, has also banned it. (See Box) Shaina Hasan, Disaster Risk Reduction Consultant, United Nations, says: “Triple talaq is an abhorrent practice that has no place in Islam and our country. Not only is it un-Islamic, it also goes completely against the principle of equality. That is why most Muslim countries like Bangladesh and Pakistan have banned it. If countries that closely follow Shariah law such as Saudi Arabia have banned it, what’s stopping India? It is really sad that the All India Muslim Personal Law Board, instead of being sympathetic towards Muslim women who suffer due to this crime, has turned a blind eye to the demand for reform and has been completely resistant to change. The government must step in and abolish this regressive practice of triple talaq.”
Muslim leaders and political parties have largely kept out of the debate. Many feel this is because patriarchal attitudes dominate. Sabiha Farhat, a television producer and documentary filmmaker, points out: “It is a double whammy for Indian Muslim women as they have been let down by national leaders and religious leaders. What the community needs today is a leader like Ambedkar, who codified the Hindu personal law despite opposition from leaders like Sardar Patel, Syama Prasad Mookerjee, Dr Rajendra Prasad and many others to give us the Hindu Code Bills standing against Hindu orthodoxy that saw a threat to patriarchy. These mainly gave Hindu women the right to property, equality in filing of divorce, right to maintenance and guardianship of children and abolition of polygamy. After these many more reforms have been carried out, putting Hindu personal law on a progressive path as compared to Muslim personal law.”
Protecting tradition, culture and religious practice takes precedence despite women’s human rights being trampled upon. Triple talaq is just one example. Recently, Maneka Gandhi, the Union Minister for Women and Child Development, cited cultural concerns for not supporting the criminalization of marital rape in India. Similarly, cultural and religious opposition has slowed the pace of reform of Muslim personal law, withholding the benefits that accrue from multiculturalism.
Firoz Bakht Ahmed adds: “All that the AIMPLB has managed so far is to tarnish the image of Indian Muslims. Most statements emanating from the board that the media quotes are taken to be the community’s position. The truth is that an average Muslim thinks differently and is not influenced or governed by what the AIMPLB states.”
The issue of Muslim personal law has been raised numerous times but then has simply been lost to political rhetoric. Even when it was raised in the context of the Uniform Civil Code, which is a policy goal for India in the Directive Principles of State Policy, it evaporated in political jugglery by various religious communities which did nothing to ameliorate the plight of Muslim women.
Points out Sabiha: “The onus of reform of the Muslim Community is on parliament as the Muslim Personal Law can be codified only by an act of Parliament. Why isn’t the parliament doing it despite so many years of petitioning by NGOs and activists? And therein lies the politics—who are we appeasing at the cost of Muslim women? That Muslims will be governed by their Personal Law, is an Act that was put in place by British in the 1830’s. But nowhere in our legal system has the Muslim personal law been specified or written down by legal experts. It is therefore open to individual interpretations. Why is it still not clearly stated or codified despite 69 years of freedom? This in effect means that 13 percent of the population is left to the whims of Maulanas who are orthodox and patriarchal.”
In the landmark Shah Bano judgment of 1985, the Supreme Court ruled that the 62-year-old was entitled to maintenance after divorce, like any other woman citizen of India, under Section 125 of the Criminal Procedure Code. But the Muslim community’s orthodox leadership slammed the judgment and the then Congress government under Prime Minister Rajiv Gandhi did not want to upset the community as elections were round the corner. It enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986. This Act provided for maintenance for only three months after divorce. It was clearly a regressive step with disastrous consequences for Muslim women as it shifted the onus of maintaining the divorced woman onto her relatives or the Wakf Board. Clause A in Section 3(1) of the Act says that a divorced woman shall be entitled to a reasonable and fair provision and maintenance will be paid by the husband. This was open to interpretation as the latter would decide what was fair.
In 2005, the government appointed the Sachar Committee to evaluate the socio-economic conditions of Muslims in India. While the report established that the Muslim community was economically, socially and educationally lagging, the Committee was not mandated to look into the status of Muslim women. There has been no empirical study conducted by the government to evaluate the problems faced by Muslim women especially with regard to Muslim personal law. And this, despite the raucous communalism raised in the context of the Uniform Civil Code in political circles. Muslim personal law is unique, when compared to family law applicable to other communities because it is largely uncodified. In India, both state courts and community courts adjudicate on issues of Muslim personal law.
As Sabiha points out: “Muslim personal law is not even codified, to begin with. It can only be codified by an act of parliament, it can’t be done by individuals. Muslim women have been left to the mercy of maulvis who are orthodox and patriarchal. There have been many Muslim women’s organisations and men who have raised the demand to codify Muslim personal law and to do away with triple talaq but no political party seem to care. None of them has spoken against triple talaq. Muslims do not have a leader of their own, they have always voted for mainstream political parties, regional or national. Hindu leaders are their leaders and they must fight for the rights of Muslim women and stand against Muslim orthodoxy.”
Even when Muslim matrimonial cases come to state courts, there are several issues that stand in the way of justice for these women. Often, judges in lower courts are not clear on aspects of Muslim family law because they tend to depend only on codified law. Nevertheless, landmark judgments by the Supreme Court since the 1970s have often referred to sources beyond statutes, such as Islamic law followed in other countries, to push for reforms within Muslim law. More specifically, the judgments have referred to Islamic state law in countries where women enjoy greater rights than in India such as Tunisia, Libya, Jordan, Iraq, Indonesia and Malaysia.
The courts unconditionally accepted triple talaq until 1978, when it was declared to be revocable if two conditions were not met. Justice Baharul Islam, in his judgment in the case of Jiauddin Ahmed v. Anwar Begum in 1978, said: “The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family and the other from the husband’s. If the attempts fail, talaq may be effected.” This landmark case went unnoticed for a very long time until 2002 when the Supreme Court delivered a definitive verdict on the revocability of triple talaq in the case of Shamim Ara. Between 1978 and 2002, most lower courts continued to uphold triple talaq as valid, as there were merely 10 reported cases where High Courts deemed triple talaq revocable. Even though the Shamim Ara judgment is progressive, it leaves a lot to be desired and the courts or legislatures have not done enough to protect the rights and dignity of Muslim women when it comes to unfair divorce practices.
Though the judgment laid down that the husband must provide a “reasonable cause” for divorcing his wife, it does not specify what such reasons can be. For instance, it does not specify whether these reasons are the same as the grounds on which Muslim women are permitted to judicially mediate divorce, or if men can divorce on a larger set of grounds. The verdict also does not specify what would happen if efforts at reconciliation have not been made before the divorce is announced. With these issues unclear, lower courts and community courts are free to continue to take decisions that might be biased against women. Muslim women deserve more respect and equal protection under the laws of India. Change and Gender Equality, authored by Narendra Subramanian in 2008, said that judges in lower courts and community courts often misunderstand or do not know this judgment.
Fourteen hundred years after the Quran granted equal rights to women, triple talaq continues to marginalize Muslim women. The Quran does not have any reference to triple talaq. Ahmedabad-based Zakia Soman told India Legal: “Triple talaq is un-Quranic, not in keeping with the Indian constitution and is unjust and inhuman. It has to be abolished. There is no mention of talaq in the Quran but the leaders of the Muslim personal law board have stonewalled the issue of triple talaq, saying that it is an attack on Islam. It is a patriarchal conspiracy to deny women their rights. They have manufactured the concept of how a Muslim man can say talaq three times and secure an instant divorce. We have to stop the patriarchy and conservatism that is passed off in the name of Islam.”
Adds Saif Ahmad Khan, a freelance writer for Huffington Post, “The fact that triple talaq finds no mention in the holiest Islamic scripture should make it easier for us to do away with it.”
The Quran clearly lays down how a dialogue has to be permitted to evolve, spread over 90 days, between the estranged couple. When that does not work, relatives start mediating. Only if that also fails, can talaq be allowed. Unilateral talaq, as practiced in India, is not allowed by the scripture. The norm for divorce is to pronounce talaq once and, in the 30 days that follow, there is room for the couple to reconcile. If that does not happen, talaq is pronounced again after which, for the next 30 days, relatives try to work out a reconciliation. If this too fails, the third talaq is pronounced. The divorce can be granted only after another 30 days. The idea of the long-drawn-out period is to enable the couple to grab any window of opportunity for reconciliation.
However, it hardly ever works out like that. J Begum was divorced unilaterally by her husband by the oral pronouncement of talaq, three-and-a-half years after marriage. Though she had a nikahnama, she did not receive her mehr nor does she know what the amount was. She has also not received any maintenance allowance from her husband after the divorce though she managed to get back her jewelry and other belongings from her husband’s house. She now lives with her parents in Odisha. There are thousands of such heart-rending stories of Muslim women who have become victims of triple talaq. Every city and village will have one.
After completing her MPhil, Naveena got married. The nightmare began soon as she battled domestic violence and demands for more dowry. Three months later, her husband unilaterally divorced her by a letter through a Qazi. She did not get her mehr, which had been fixed at 10 grams of gold before the wedding, nor did she get any maintenance after the divorce. She now lives with her parents at Tiruppur in Tamil Nadu, looking after her year-old baby. She has heard that her former husband is now preparing to marry for the third time.
KI Ahmed, president, Interfaith Harmony Foundation of India, told India Legal: “Divorce is permitted in Islam but it is largely discouraged. This is the last action that a husband should take, only when all tools of reconciliation are exhausted. Triple talaq has been abandoned by the Muslim world. In India, there is unfortunately no centralized mechanism where highly educated and qualified ulemas who are progressive can sit together and come to a decision on why this should continue here. But the fact is that we have to stop the abuse of the provision of triple talaq.”
As she did not have the money for any formal education, 20-year-old Rubina from Bhopal worked as a domestic help to make ends meet. Three years after she was married, her husband used the triple talaq method to divorce her all of a sudden. Her mehr, fixed at `7,000, was not handed over. Nor were her personal belongings or jewelry. She was also not offered any maintenance. The man soon remarried. She and her seven-year-old daughter now live with her parents. Justice is a distant dream for her, and thousands like her.
—With inputs from Punkhuri Chawla