May 05, 2018

India: Triple Talaq Judgment and After, Has the Stance of Secularists Changed At All ?

Triple Talaq Judgment and After

Jyoti Punwani (jyoti.punwani[at]gmail.com) is a Mumbai-based journalist.
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.
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.
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.
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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