Triple Talaq Judgment and After
The
Bharatiya Janata Party’s move to push a law criminalising triple talaq
has been met with mixed responses. The All India Muslim Personal Law
Board has been campaigning against the judgment and law by evoking fears
of a uniform civil code and mobilising mass rallies of Muslim women
across the country. On the other hand, Muslim women and civil society
have been asserting their opposition to triple talaq while negotiating
with the state on suitable forms of legislation.
The
push for change was historic; the backlash has been equally fierce.
Political interests have played their own cynical role in provoking the
backlash and in polarising opinion on communal lines.
But this time, women are determined not to lose out, as they did three decades ago.
From Judgment to Bill
Muslim
women scored a historic victory on 22 August 2017, when the Supreme
Court struck down the practice of instant and unilateral triple talaq as
“unconstitutional” and “unIslamic” (Bagriya and Sinha 2017). Five
victims of triple talaq from different parts of the country had
separately petitioned the apex court in 2016, to ban the practice by
which a Muslim husband could divorce his wife in an instant by simply
pronouncing or writing “talaq” thrice. For years, women’s groups had
been petitioning the government against this practice, which finds no
mention in the Quran and has been banned in more than 20 Islamic
countries.
The judgment itself was a
complex one. Two judges struck down triple talaq as arbitrary and hence,
unconstitutional. A third struck it down as unIslamic and hence, not
part of the Shariat or Muslim personal law. The remaining two upheld it
as an integral part of personal law, which they said was a fundamental
right protected by the Constitution (Munoth 2017). However, these two
judges also laid down an injunction against the practice for six months
and directed the government to come up with a law by then, which would
invalidate instant triple talaq. But theirs was a minority judgment and
hence, could have been ignored.
Despite
this, the centre went ahead and drafted a law making triple talaq a
criminal offence, punishable with a maximum sentence of three years. The
bill was introduced in the Lok Sabha on 28 December 2017 and passed the
same day (Business Line 2017), but could not be passed in the Rajya Sabha (Hindu 2018).
Both
the triple talaq judgment and the Muslim Women (Protection of Rights on
Marriage) Bill, 2017, popularly known as the “triple talaq bill,” have
been used as political weapons by the two main players: the Bharatiya
Janata Party (BJP) which rules at the centre and the All India Muslim
Personal Law Board (AIMPLB), a self-styled representative of the Muslim
community.
AIMPLB’s Resistance and Tactics
Forty-eight
hours after the Supreme Court judgment that struck down triple talaq,
its ruling was rejected by the Jamiat Ulema-e-Hind chief and executive
member of the AIMPLB, Maulana Mahmood Madani. Madani’s family,
traditional Congress supporters, has held sway over the influential
Darul Uloom Deoband seminary since before independence. At a meeting
called to discuss the Supreme Court ruling, the Jamiat chief declared
that his organisation would not accept it, and that a wife divorced
through instant triple talaq would be considered divorced (Ghosh 2017).
A
day earlier, the Jamiat’s West Bengal head, Maulana Siddiqullah
Chowdhury, who is also a member of the legislative assembly (MLA) of the
ruling Trinamool Congress in the state, had said the same thing
(Chowdhury 2017). The Jamiat had opposed the women’s petitions in the
Supreme Court, as had the AIMPLB.
At the AIMPLB’s meeting held three weeks after the judgment, its general secretary Maulana Wali Rahmani declared:
We follow Shariat and Shariat provides for instant triple talaq. We believe in triple talaq and it must and will go on. The fact remains that whoever still practices triple talaq will still continue to sever ties with his wife and it will not change. How to implement this is the headache of the court and the government. (Roy 2017)
This
stand was no different from what the AIMPLB had stated in its affidavit
in the Supreme Court. However, while arguments were on in the Court, in
a bid to ward off a final judicial decision on triple talaq, the AIMPLB
had tried to strike a milder note. It had filed another affidavit
promising to issue advisories to qazis (Islamic adjudicators) that before executing nikahnamas (Islamic
marriage contracts), they should tell husbands not to pronounce the
“undesirable” practice of triple talaq, and to insert such a clause in
their nikahnama. The social boycott of husbands who pronounced triple
talaq was also promised.
Those who
knew the AIMPLB knew that these assurances were hypocritical and hollow.
In the months preceding the Supreme Court hearings, the AIMPLB had
carried out a single-minded campaign against any change in personal
laws.
Setting women against women: In
this campaign against women asking for reform, the AIMPLB ensured the
involvement of Muslim women. In 1985, when it had opposed the Shah Bano
judgment (wherein the Supreme Court had granted lifelong maintenance to
an elderly Muslim divorcee), the AIMPLB’s nationwide street-level
campaign had involved men alone. The affected women had not even been
addressed. After Shah Bano was pressurised to repudiate her hard-earned
legal victory, it was the male members of the AIMPLB who had drafted a
new divorce law aimed at excluding Muslim female divorcees out of
Section 125 of the Code of Criminal Procedure, the provision that
granted maintenance to all divorcees (Malhotra 2017).
This
time, the AIMPLB was wiser. It knew its best bet was to get women to
oppose women. So, it drew up forms that had to be signed by women,
declaring they wanted no change in their personal law or Shariat. These
forms were distributed everywhere, given to men in masjids, and even
left in bulk at grocery stores. This strategy was also a response to the
50,000 signatures collected against triple talaq by the Bharatiya
Muslim Mahila Andolan (BMMA), one of the interveners in the Supreme
Court in favour of the petitioners (Paracer 2016). Over six months, the
AIMPLB managed to collect 48 million signatures; more than half of these
were of women (Telegraph 2017). The AIMPLB could
thus claim that the petitions in the Supreme Court asking for a ban on
triple talaq, polygamy and halala, all practices which adversely
affected Muslim women, had been filed by a few “misled/Rashtriya
Swayamsevak Sangh-backed” women who did not represent the community’s
thinking.
Evoking uniform civil code: The
AIMPLB played another card in its campaign: it linked the triple talaq
petitions to the oft-stated desire of the ruling BJP for a “uniform
civil code” (UCC) (Ghosh 2016). None of the Supreme Court petitioners
nor the women’s groups who had intervened in favour of them, had asked
for a UCC. In fact, the Chief Justice of India(CJI) had, in December
2015, thrown out a petition asking for a UCC. Yet, the AIMPLB’s
spokespersons deliberately glossed over the crucial difference between a
Supreme Court judgment given in response to individual Muslim women’s
pleas, and a Hindutva government’s imposition of a UCC.
In
this duplicity, the BJP actually helped the AIMPLB. In October 2016,
out of the blue, when the AIMPLB’s campaign against the petitions was at
its peak, came the Law Commission of India’s questionnaire seeking
online responses on the desirability of a UCC (FirstPost 2016). The AIMPLB boycotted the questionnaire and directed all Muslims to do so (Dehlvi 2016).
If
the UCC questionnaire had helped the AIMPLB, the centre’s badly drafted
and hurriedly passed bill has come as a shot in the arm in the AIMPLB’s
campaign against reform. Incidentally, in their affidavit, the AIMPLB
had stated that triple talaq could be banned not by courts, but only
through legislation.
Mobilising against the Bill
In
the four months since the bill was passed by the Lok Sabha, the AIMPLB
has managed to organise rallies of lakhs of women across the country, on
the plank of “Islam in danger” (Iqbal 2018). Muslim personal law or the
Shariat cannot be changed, it has declared, forgetting conveniently
that the AIMPLB itself had changed it during the Shah Bano controversy
when it drafted and got the Rajiv Gandhi government to enact the Muslim
Women (Protection of Rights on Divorce) Act, 1986 (Malhotra 2017).
This
reporter sat through meetings of ordinary Muslim women addressed by the
AIMPLB’s female members in preparation for the Mumbai rally organised
on 31 March 2018. The women participants of this meeting—who had but a
faint idea of why they had been called—were made to believe that all
forms of talaq had been banned. Incidentally, the women this reporter
managed to speak to, said that under Islam, triple talaq was not
allowed. When one informed them that this bill made triple talaq an
offence, they looked confused.
Many of the women had no idea what the AIMPLB was, either. They were informed it was a body of ulema (Islamic
scholars) who spent their waking hours and even nights trying to find
solutions to Muslim women’s problems. The women were then warned that if
they failed to oppose this bill (albeit “silently, for Islam does not
like women’s voices being raised”), the next imposition would be a UCC
under which even nikaahs (Muslim marriage) in masjids would be banned, and Muslims would have to perform saat pherey (Hindu
marriage rituals). It was, thus, the women’s religious duty to come out
and participate in the rally (albeit “wearing burqas,” for not doing so
would “make them sinners in the eyes of Allah”) (field notes 2018).
Invoking
Hindu practices such as sati, bride burning and dowry, these speakers
extolled Islam as the only religion that provided women all the rights
they needed, making any demand for “gender justice” superfluous.
Besides, said the speakers, the incidence of triple talaq in the
community was negligible. But if this bill was passed, jails would be
filled with Muslim men, because anyone could complain about a husband
having given triple talaq, and the police would immediately arrest the
man. Once a husband was in jail, how could he provide for the family,
they asked. And, which man would want to reconcile with a wife who had
sent him to jail?
The climax of these
nationwide rallies was the “Deen Bachao, Desh Bachao” (save religion,
save nation) rally in Patna held on 15 April 2018, organised jointly by
the AIMPLB and the Imarat-e-Shariah, a Patna-based body that looks after
the religious affairs of Muslims in Bihar, Jharkhand and Odisha (Live Hindustan 2018).
Both institutions are currently headed by the same person: Maulana Wali
Rahmani. Thousands of men from these states attended the rally, where
the ruling BJP was the main target.
Interestingly,
the day before the rally, Bihar Chief Minister Nitish Kumar, who runs
the government in alliance with the BJP, named one of its main
organisers, Khalid Anwar, as the Janata Dal (United)’s candidate for the
state legislative council election (Ahmed 2018).
It
is important to note that the AIMPLB comprises all sects of Indian
Muslims. Among them, only those Sunnis who follow the Hanafi school of
jurisprudence, practise triple talaq. The Ahle Hadees do not, nor do the
Shias. Yet, both before and after the Supreme Court judgment, all sects
put up a united front through the AIMPLB against the judgment and the
triple talaq bill. The fear, real or imagined, of a UCC is what united
them.
The BJP has been giving
contradictory signals on this issue. In the Supreme Court, the attorney
general said the government considered all forms of talaq—even those
approved of by the Quran—unconstitutional, and the government would
legislate on the conditions under which a Muslim man could divorce (DNA 2017).
In his minority judgment, then CJI J S Khehar, who upheld personal law
as a fundamental right that could not be challenged, strongly
disapproved of this argument.
Need for a Law?
The
question then was whether a law on triple talaq was needed at all,
especially after the Supreme Court had struck it down? Women’s
organisations and lawyers practising in family courts have told this
reporter that after the Supreme Court judgment, cases of triple talaq
had reduced considerably. It was not as if men were not divorcing their
wives. They just were not sure if they could do so as easily as was
possible before the judgment. This is an indicator of the value given by
the average Muslim to the decisions of the Supreme Court. Even the
defiant pronouncements of the AIMPLB and the ulema against the Supreme
Court judgment did not shake this faith.
The
husbands’ confusion was valid; the judgment did leave things unclear.
The incidence of women being instantly divorced lessened, but did not
disappear. What was a woman whose husband had pronounced triple talaq to
do? The ulema had made it clear that she remained divorced. They were
not likely to find solutions for her.
The
government too did not bother to spread awareness about the judgment
among Muslims, despite the Prime Minister’s frequent expressions of
concern for his “Muslim sisters” affected by triple talaq (Noorani
2017), including in his Independence Day speech, where he referred to
their “pitiable lives” (Times of India 2017a). The
BJP leaders crowed about the judgment as if they had approached the
Court, but did nothing to implement it on the ground, despite appeals by
Muslim women’s groups to the women’s commissions and the police.
Incidentally,
a section of Muslims, including former AIMPLB member Uzma Naheed, an
advocate of women’s rights, have often expressed the desire for a legal
provision that would punish husbands who violate personal laws (Maeeshat 2016).
The post-judgment scenario brought home the need for such a provision.
Women’s groups such as the BMMA wrote to the authorities recommending
that the provisions of the Protection of Women from Domestic Violence
(DV) Act, 2005, be applied to women who complained to the police that
they had been divorced through triple talaq. The BMMA also wrote to the
government as well as Rahul Gandhi, demanding the codification of Muslim
personal law, so that the proper procedure for talaq was laid down. It
even sent the draft of such a law to them.
As
talk of a bill being drafted by the government gained ground, Bebaak
Collective, a conglomerate of Muslim women’s organisations who had also
intervened in the Supreme Court in support of the petitioners, met union
ministers to demand a law that would not just nullify triple talaq, but
also uphold the constitutional values of equality, regardless of
whether such a law fulfilled Quranic injunctions or not.
But the government remained deaf to these inputs. The draft sent to states on
3 December 2017, with a week’s deadline to respond, was the one finally passed in the Lok Sabha. All amendments to it suggested by the opposition were rejected, as was the demand to send it to a parliamentary committee.
3 December 2017, with a week’s deadline to respond, was the one finally passed in the Lok Sabha. All amendments to it suggested by the opposition were rejected, as was the demand to send it to a parliamentary committee.
Muslim Women’s Assertions
Another
pertinent question being raised is: why was the government in such a
hurry to pass this law? The law minister said it was duty-bound to
follow Supreme Court directives, dishonestly omitting to say that only
the minority judgment had directed the government to
do so.
do so.
One
possible reason for the government’s haste could have been the series
of assembly elections due in the key state of Gujarat, as well as in the
North East in early 2018. Political commentators, as well as newspapers
and websites close to the ruling party, have spoken about the BJP’s
strategy of aiming for Muslim women’s votes by taking up the triple
talaq issue (Chawla 2017; Upreti 2018). The BJP leader Subramanian Swamy
ascribed his party’s victory in the 2017 Uttar Pradesh assembly
elections—even before the Supreme Court judgment—to Muslim women’s votes
(Indian Express 2017). In Gujarat, a video was
released during the election campaign in December 2017 that showed a
Muslim woman praising Narendra Modi’s government as having finally put a
stop to the “poison” of triple talaq, castigating Muslim men for
supporting “vote bank politics” and declaring that she would not vote
for a party that paid no heed to Muslim women’s suffering (Times of India 2017b).
Days
after the triple talaq bill was passed in the Lok Sabha, Ishrat Jahan,
one of the five petitioners in the Supreme Court, joined the BJP. After
the Supreme Court judgment, she had been socially boycotted by her
Muslim neighbours in Kolkata, and had written to the West Bengal Chief
Minister Mamata Banerjee for help. When quizzed on her reasons for
joining the BJP, she replied that the party had been meeting her for the
last four months. The Congress too had met her, but what clinched the
issue for her was the triple talaq bill (Salam 2018). A few days later,
her lawyer, also a Muslim woman, followed suit.
While
it might be wishful thinking on the BJP’s part to hope for Muslim
women’s votes, there is no doubt that a large section of women affected
by triple talaq supported the triple talaq bill soon after it was
passed, before the AIMPLB’s campaign against it. Conversations this
reporter has had with such women and also their lawyers reveal that
making triple talaq a criminal offence did not alarm them, the way it
did many Muslim activists. On the contrary, these women felt three years
was too mild a sentence for husbands who had ruined their lives.
“Hadn’t the second caliph Umar, who was supposed to have allowed this
form of talaq, prescribed flogging for those who pronounced it,” they
asked this reporter.
Imprisonment, in
fact, had one major advantage, they said: their husbands would not be
able to marry again immediately. The desire to take a second wife is one
of the most common reasons for pronouncing triple talaq. Though Muslims
are allowed four wives, young Muslim women today are not willing to
accept a second wife. Instant divorce, thus, beco mes the easiest way
out for the husband. Second, said these women, these husbands would not
be able to rush off to the Gulf immediately after pronouncing talaq,
either to resume their jobs or to take new ones—another seemingly common
practice.
Some of these women had
ready ans wers to all the objections raised against the bill. Some of
the most common objections being: “once the husband is in jail, how can
he provide for the wife? And won’t his imprisonment wreck all chances of
reconciliation?” To the fi rst question, they pointed out that anyway,
no husband who utters triple talaq provides for his wife and children,
unless forced to by the court or an arbitrator. The norm is to throw the
wife out of the house once talaq is pronounced. Second, reconciliation
mostly takes place when the husband repents on his own or upon
counseling. Why will a wife rush to the police as soon as triple talaq
is pronounced, rather than wait for him to change his mind, they asked?
Abdul
Razzak Maniar, who runs a centre in the heart of Mumbai’s old Muslim
quarter which has been solving Muslim marital disputes for years,
admitted that once the DV Act or Section 498A of the Indian Penal Code
(cruelty to the wife) is invoked, chances of reconciliation are
negligible. But there have been instances of wives taking back cases
filed under these provisions against husbands, after the latter promise
to behave better.
One telling argument
made by Muslim male opponents of the bill is that for fear of
persecution if they pronounce triple talaq, Muslim men would simply
abandon their wives instead of divorcing them. But the bill has not
criminalised the other, more long-drawn-out methods of divorce; they
remain available to the husband. This argument betrays the reality that
the AIMPLB tries to hide: that for Muslim men in general, triple talaq
alone has become the favoured means of divorce.
“We
have lived with the fear of triple talaq; let the men now live with the
fear of jail,” said many women. However, some of them did express the
fear that the prospect of imprisonment would subject the wife to family
pressures to not complain.
Conclusions
Interestingly,
this reporter received congratulatory messages from Pakistani feminists
the day after this bill was passed in the Lok Sabha. For Chennai’s
senior advocate Bader Sayeed, who had asked for the codification of
Muslim personal law 20 years back, and who successfully petitioned the
Madras High Court in 2013 to stop the practice of qazis granting
divorces (instead of courts), the bill was “a dream come true” (Punwani
2018).
However, Sayeed, like others
who support this bill conditionally, agrees that the bill has two
serious flaws which render it liable to misuse: anyone can complain to
the police and, the offence is cognisable, that is, the police can
arrest without a warrant. Along with the BMMA, Sayeed has sent a
comprehensive draft of an amended bill to the government, laying down
the proper procedure for talaq, and making triple talaq an offence which
would be bailable and non-cognisable, with the right to complain
restricted to the wife, and punishment restricted to one year. Senior
lawyer Indira Jaising, who represented Bebaak Collective in the Supreme
Court, has also proposed changes making triple talaq a part of the DV
Act. The need for a talaq procedure to be laid down by law is being
voiced by other divorce lawyers too, as also the need to punish qazis
and maulanas who validate triple talaq.
If
the BJP government had Muslim women’s interests at heart, it would pay
heed to these and other suggestions by women’s groups. But right now,
the BJP benefits more by telling its potential Hindu and female Muslim
voters that its bid to “liberate” Muslim women is being thwarted by
backward and misogynist Muslim men, backed by the opposition.
This
time, though, having experienced legal victory, Muslim women are not
likely to remain silent pawns. And this time, they have the support of a
large number of Muslim men in their fight.
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