MUSLIM WOMEN ARE NOT HAPLESS VICTIMS

By | January 9, 2018
Muslim Women - Legal Bites

According to the Quran, men and women have the same spirit, there is no superiority in the spiritual sense between men and women. The Quran makes it clear that all human beings (and the phraseology doesn’t apply to men or women alone, but to both) have what you might call a human; He “breathed some of My spirits into divine touch. When God created him”(or her in this sense). Some of His spirit here means not in the incarnation sense, but the pure, innate spiritual nature that God has endowed her or him with.

The Quran indicates again that one of the most honored positions of human is that God created the human, and it means both sexes, as His trustee and representative on earth. But with the passage of time some minority people who were in supreme power came up with there own theory and made some law which is against the women’s right and provided men some supreme power such as polygamy and instance Triple Talaq.

In India our Constitution is supreme and everyone is abided by it and no is above it.  Article 15 of the Indian constitution dwells on the prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth. Whereas Article 15(3) states:


“Nothing shall prevent the State from making any special provision for women and children.” Article 38 says that the state shall “strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”


Does the state fulfill its obligations to make special provisions for women merely by securing maintenance? Is it not the duty of the state to respond to articulations of claims that seek redressal for a violation of personhood by systemic structural violence.

As the now-famous saying goes, “women’s rights are human rights.” That is to say, women are entitled to all of the rights. Yet almost everywhere around the world, women and girls have still denied them and practice for instance triple talaq is one of the evil practice against the community of women.

Triple Talaq is the process of divorce under Sharia Law (Islamic law) where a husband can divorce his wife by pronouncing ‘Talaq’ three times. This is also called oral talaq. There are three types of divorce under Islamic law, namely, Ahsan, Hasan and Talaq-e-Biddat (triple talaq). While the former two are revocable, the last one is irrevocable. It is mainly prevalent in India’s Muslim communities that follow the Hanafi School of Islamic Law. Under this law, wives cannot divorce husbands by the means of triple talaq. Women have to move a court for divorcing her husband under the Muslim Personal Law (Shariat Law) Application Act 1937.

Isn’t this violation of our Indian Constitution Article 14 equality before the law and Article 15 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

THINGS HAPPENED SO FAR

Supreme Court

In October 2015, an Apex Court bench dealing with a case related to the Hindu Succession Act requested the Chief Justice of India to set up a separate bench to examine if Muslim women face gender discrimination in cases of divorce. Thereafter former Attorney General Mukul Rohatgi was asked to assist the court in pleas challenging the validity of Triple Talaq and polygamy.

The government had vehemently opposed the practice in the court. A five-judge Constitution bench was set up to hear the plea in May 2017. The court initially consulted with the All India Muslim Personal Law Board (AIMPLB) whether it was possible to introduce the option for women to say ‘no’ to Triple Talaq.

The Court made it very clear in its proceedings that “we will only look at Triple Talaq and whether it is constitutional and not go into issues such as polygamy.”

In the Supreme Court, AG Mukul Rohatgi said that the practice should not be allowed as women have equal rights as men and the practice was in violation of those rights. The government said it was ready to bring in a new law to regulate the practice of divorce among Muslims.

Amid opposition from the AIMPLB, which said that the practice was 1,400 years old, the court declared the practice illegal in August 2017 and directed the legislature to form a new law relating the Triple Talaq.

The Court also said that they did not find anything in Muslim law which says triple talaq is valid or it supports triple talaq. The court acted on a plea filed by six petitioners which included Shayara Bano, Ishrat Jahan, Bharatiya Muslim Mahila Andolan, Gulshan Parween, Aafreen Rehman, and Atiya Sabri.

Ruling NDA Government

In his first remarks after the Lok Sabha passed the Bill, PM Narendra Modi said that Muslim women finally have a way out of years of suffering. The government has been of the view that the practice of talaq-e-bidaat denied Muslim women the fundamental rights guaranteed by the constitution.

When the Court declared the practice of triple talaq illegal, the government hailed the decision by calling it a red letter day for women rights in India. The Bill was tabled in Lok Sabha during the winter session and was passed without much opposition as the government enjoys a comfortable majority. However, this could change in Rajya Sabha as Opposition parties have expressed their reservations over the Bill.

Views of Opposition parties

When the Bill was introduced in the Lower House, Opposition parties like the RJD, AIMIM, BJD, IUML, and AIADMK objected but failed to rally together when it was taken up for voting. The Congress did not even give the notice to oppose the introduction of the Bill and the Trinamool Congress did not participate in the discussion. AIMIM’s leader Asaduddin Owaisi said that it was an attempt to demonize Muslim men. The Bill, he maintained, violated fundamental rights.

According to the opposition leader of Rajya Sabha Galam Navi Azad, the proposed law, which makes talaq-e-biddat a “cognizable and non-bailable offense”, has provisions of “imprisonment for a term which may extend to three years and fine” for any Muslim man who divorces his wife via instant triple talaq. It also provides for “subsistence allowance” to Muslim women and custody of minor children as “may be determined by the magistrate”.

The Law Minister Ravi Sankar Prasad, said, that he was told that the Congress would be ready to support the Bill, even with the criminal clause, if the government takes upon itself the responsibility of financially supporting all such Muslim women whose husbands are in jail for pronouncing instant triple talaq. Sources said the Law Minister did not agree to the proposal.

In fact, Azad reiterated his suggestion in the House: “Until the time a woman’s husband is in jail who is going to pay for the family maintenance? The government should have a provision that until the time the husband is incarcerated; the government should pay the women subsistence allowance. Let them do this, and we will support the Bill. But there is no such provision.”

All Indian Muslim Personal Law Board

In the Supreme court, the All Indian Muslim Personal Law Board said that the matter fell outside the realm of the judiciary. However, the board issued a “code of conduct” and warned Muslim men against giving divorce without following the norms of Sharia law. The board also said that issues of constitutional morality and equity cannot arise when a matter of faith is concerned. Also, they protested against the government’s decision to bring in a law to criminalize the practice of instant talaq.

The board recently urged the Modi government to withhold and withdraw its Bill to outlaw instant Triple Talaq, stating that it was against the principles of Shariah and amounts to interference in the Muslim personal law.

ANALYSIS OF BILL AND SUGGESTION

In response to a question in Parliament, this was confirmed as fact that, this bill was drafted behind closed doors with no consultation with anyone outside of a select group of ministers and officials. The manner in which the Triple Talaq Bill was drafted and introduced also violates the Pre-Legislative Consultation Policy.

If you read the articles present and from social media, the main concerns of those opposing the Bill are less about the legal arguments being made and more about how anything initiated by a right-wing government must not be accepted. The probability of the law being misused is also in question. Feminists endorse views of its misuse and build an imaginary Muslim woman whose only happiness lies in filing false cases of instant triple talaq against her husband, to put him behind bars.

Mariya Salim a women’s rights activist and researcher and a member of Bharatiya Muslim Mahila Andolan suggested three important measure for the protection and betterment of this bill:

  1. The Bill must include the Talaak-e-Ahsan method of divorce. This method must be made available to both the husband and the wife so that the marriage can be dissolved without injustice to the woman.
  2. Recognising the importance of deterrence in law, this law should be guided by the earlier progressive laws such as the bigamy law, anti-dowry law, and prevention of domestic violence law. Marriage is a civil matter, and just as all civil law violations invite penal action, violation of this law must also invite penal action. This penal action must happen at the behest of the complaints filed by the aggrieved wife if the laid down procedure is not followed. It should be bailable and non-cognisable, just as all other violations are.
  3. Need for a codified Muslim family law which is based on the Quran and compliant with constitutional provisions. This alone would enable Muslim women to get gender justice in family matters. It must include matters such as the age of marriage, registration of marriage, polygamy, mehr, custody of children and inheritance.

CONCLUSION

According to a Congress Party leader Randeep Singh Surjewala, the proposed bill does only two things: It penalizes the pronouncement of instant triple talaq with a three-year prison sentence and provides for a subsistence allowance. But it’s not true and also the Bill did not come about in a vacuum. Years of struggle and the failure of many community leaders in addressing the issue and demands of Muslim women, leading up to the Supreme Court verdict, have led to the Bill. It is imperative that the demand for codification and protection of Muslim women from evils like instance triple talaq has come from Muslim women themselves and not from the ruling party. And we all need to recognize this.


Subham Saurabh

Content Writer @ Legal Bites


REFERENCES

  1. Women’s Rights in Islam available at http://www.islamswomen.com/articles/do_muslim_women_have_rights.php.
  2. Mariya Salim, Let’s Look For Ways to Make It Better, The Wire, available at https://thewire.in/210677
  3. Express Web Desk, Indian Express, Available at indianexpress.com.
  4. Press Trust of India, Available at http://www.ptinews.com/.
  5. The Wire News Portal, Available at https://thewire.in/?s=triple+talaq.

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