Muslim Women And Personal Law: Is This The Tipping Point?

Gautam Mukherjee

Jun 07, 2016, 04:34 PM | Updated 04:34 PM IST

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  • The challenge this time, to the way that the Sharia’h based Muslim Personal Law is interpreted and practiced in India, has come from within.
  • Muslim woman advocate, Farah Faiz, who runs an NGO Muslim Womens’ Quest for Equality in UP has moved the Supreme Court asking for codification of the Sharia’h based Muslim Personal Law, to end practices such as polygamy and triple talaq.
  • The time had come when I had been pushed as far as I could stand to be pushed, I suppose. I had decided that I would have to know, once and for all, what rights I had as a human being, and as a citizen - Rosa Parks

    The challenge this time, to the way that the Sharia’h based Muslim Personal Law is interpreted and practiced in India, has come from within, from the 50 percent , or more, of the nearly 200 million strong Muslim population in India.This time, it is not about alimony alone, as in the infamous betrayal of the Shah Bano case verdict of 1985.

    It is, with specific reference to the manner in which the provision of ‘triple talaq’ is used exclusively by Muslim men in India, mostly in conjunction with polygamy. A younger wife is taken, and an older one retired unceremoniously, sometimes along with all her children.

    The present contention is probably encapsulated in the similar sounding Shayara Bano petition of 2016, challenging the constitutionality of ‘triple talaq’, directly in the Supreme Court of India.

    Shayara Bano, a 37-year-old post-graduate in sociology and mother of two, was forced to undergo multiple abortions by her then husband. She was divorced via a posted triple talaq, and separated from her children.

    The Supreme Court has taken suo moto notice of her petition for justice, and there promises to be a long-drawn legal battle with the patriarchal Muslim personal law guardians.

    In addition, highlighting the gender divide on the issue, the first woman qazi of Uttar Pradesh, Hina Zahir Naqvi, has also called for an immediate ban on the practice of triple talaq.

    Another lawyer, activist and former lawmaker from Tamil Nadu, the 70-year-old Bader Sayeed, has also moved the Supreme Court challenging the largely oral or otherwise instant triple talaq, impleading into the Shayara Bano case.

    Yet another Muslim woman advocate, Farah Faiz, who runs an NGO Muslim Womens’ Quest for Equality in UP and is also the honourary national president of the RSS associated Rashtrawadi Muslim Mahila Sangh, has moved the Supreme Court asking for codification of the Sharia’h based Muslim Personal Law, to end practices such as polygamy and triple talaq.

    Faiz has even cited how instant talaq can sometimes be given on seemingly frivolous grounds, such as the incensed Assamese man who just divorced his wife for voting in the recent assembly elections, in a manner contrary to his wishes.

    A simultaneous broad demand for change has come spontaneously, from Muslim women themselves, and not just from the Sangh Parivar, demanding the establishment of a codified and transparent Uniform Civil Code.

    It has come, initially, from 50,000 Muslim women, who have signed a petition sponsored by the Bharatiya Muslim Mahila Andolan (BMMA) via its co-founders Safia Niaz and Zakia Soman, against the ‘unQuranic practice’ of triple talaq.

    The BMMA says it is striving for ‘equal citizenship…as enshrined in the Constitution, as well as justice and equality for Muslim women based on the Quranic tenets’.

    The BMMA insists that: ‘the Quranic method calls for a 90 day process of dialogue, reconciliation and mediation’ before divorce can take place.

    The organisation has asserted 92 percent of Muslim women, as per a survey they have conducted involving nearly 5,000 respondents, want the practice of ‘triple talaq’ to end forthwith.

    Their petition has been submitted to The National Commission Of Women (NCW), for its intervention. The NCW, in turn, led by its chairperson Dr. Lalitha Kumaramangalam, has announced that it will support this movement.

    The BMMA, in the interim, has launched a country-wide signature campaign to enlist the support of Muslim women to its cause.

    The BMMA has already received support also from the women’s wing of the Rashtriya Muslim Manch (MRM), an RSS affiliated body. Its head, Shehnaz Afzal has called for a registration of all Muslim marriages and divorces to prevent the practice of instant ‘triple talaq’.

    The Shayara Bano Case, though about the constitutionality of triple talaq and custody of children, rather than alimony, does echo the 1985 Shah Bano case.

    The hapless Shah Bano was divorced by triple talaq, at age 62, and thrown out by her husband, who had a new wife, along with her five children, and without any means of support.

    Shah Bano petitioned the lower courts in 1978, which granted a measly pittance, and gradually the case went all the way up to the Supreme Court, which also pronounced in her favour, in 1985.

    But, the Indian parliament, and the government of Rajiv Gandhi, cynically, and shamefully, upturned the Supreme Court verdict. This, probably to protect its electoral vote banks, and under pressure from the orthodox All India Muslim Personal Law Board (AIMPLB), and its affiliates, such as the Darul Uloom Deoband, The Jamiat-Ulama-i-Hind, and the Barelvis.

    The government, which had an overwhelming majority, ended up passing a retrograde law called the Muslim Women (Protection of Rights on Divorce) Act, 1986, in support of the orthodox Muslim patriarchy, reversing even the right to a modest alimony for divorced Muslim women.

    This time around also, the AIMPLB, established in 1973, during the Indira Gandhi government, to oversee the workings of the pre-independence Muslim Personal Laws (Sharia Act) of 1937, enacted in 1939, that remains uncodified to this day; is vehemently opposed to any change in the prevailing practice of triple talaq.

    So are all its affiliates, the predominantly male qazis, and most of the other Muslim clerics.

    The AIMPLB will, once again, aggressively and formally raise the constitutional issue in the face of this fresh attack from Muslim women though en masse. They will challenge the very jurisdiction of the Supreme Court in matters concerning the Muslim Personal Law.

    However, this issue in its various ramifications, raised this time, not by the Sangh Parivar, or any other external agency, but by Muslim women themselves, points to the possibility that the Muslim Personal Law administration is ripe for reform.

    The extremely patriarchal ways will have to go, and there are some indications that the AIMPLB will prefer to change its ways, rather than have the Supreme Court force/mandate changes. The Muslim vote bank politics also, is not, after all, what it used to be, at present.

    This shift in attitude may not come easily, or all that soon, or even via the courts, but the Muslim Personal Law administration, additionally, just cannot afford to ignore the wishes of 100 million daughters, wives, and mothers amongst them.

    Muslim women too are unlikely to be cowed down this time. They are today more aware, and often much better educated, thanks to the quiet intervention of their parents. They have come quite some distance from how they were 1973, or even 1985.

    Muslim women of India, are clearly not willing to be treated as second-class citizens and chattel any longer. And many Muslim men, particularly the educated ones, are tacitly standing with, and behind, them.

    The women are, even if their male patriarchy is not, in fact, clear that the Supreme Court is the final legal arbiter in the land, and must therefore provide the justice that is being denied them so far from within the community.

    And the present government, no doubt, has no difficulty in agreeing with them. A prolonged resistance from the Muslim menfolk, could drive the women to even vote for BJP in larger numbers, becoming a windfall gain and a thin end of the wedge to break the force of Muslim block-voting!

    Besides, more than 20 Islamic countries including Egypt, Sudan, Morocco, Iraq, even Pakistan and Bangladesh, are updating Sharia’h laws, and have imposed an injunction against the use of ‘triple talaq’ by husbands. In Turkey and Cyprus, unilateral divorce even needs court intervention.

    In terms of Muslim Personal Law, this may therefore, indeed be the Rosa Parks moment. For those who don’t readily recall the reference, Rosa Parks was a Afro-American 42-year-old seamstress, who defied segregation on buses in Montgomery, Alabama, back in 1955; thereby setting off the course of the American Civil Rights movement in the US.

    Today, that piece of courageous and quiet civil disobedience, began something that has culminated in putting in a two-term Afro-American president in the White House.

    The triple talaq alone, is not, by any means, the only anachronism in contention, in the unreformed and uncodified Muslim personal law, as practiced in India.

    But it is certainly a blessing, that the AIMPLB and its affiliates and associates, do not, for example, advocate a ‘light beating’ of wives if necessary, or confirm that women are not quite human, or sanction their consumption as food, if particularly hungry.

    They also do not defend rape of infidel women, or sanctify the marrying of female children. We read and hear about such horrors mostly from Saudi Arabia and Yemen, though the one about the light beating, though advocated first in Saudi Arabia too, alas, is from neighbouring Pakistan.

    The good thing there is, however, that the more robust amongst the Pakistani women have not taken kindly to the idea, and their menfolk have reason to worry about a fierce feminine backlash, without being able to label it as un-Islamic.

    Gautam Mukherjee is a political commentator whose columns figure regularly in different right-of-centre media outlets

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