The judgment of the Supreme Court, seeking gender justice.

The Supreme Court’s suo motu decision delivered by Chief Justice T S Thakur and Justice U U Lalit, to test the legal validity of triple talaq in one sitting in the petition filed by Shayara Bano, has long been overdue. Shayara Bano – a sociology postgraduate and a mother of two – appealed that triple talaq be declared unconstitutional when her husband ended their 15-year-old marriage by sending her a letter with the word talaq written on it thrice.

The All India Muslim Personal Law Board has declared that the country’s top court has no jurisdiction to undertake the exercise as Muslim Personal Law “is inextricably interwoven with the religion of Islam”, being based on the Quran and not on a law enacted by Parliament. This argument has little logic. It needs to be unequivocally stated that the talaq-i-bidat, admitted by the Muslim Personal Law Board to be “sinful” and an “innovation”, finds no sanction in the Quran.

Neither does the Quran sanction this form of divorce in one sitting nor was it legally held permissible by the Prophet. Such a practice violates the fundamental principles of gender justice, gender equity, good conscience and the dignity of women strongly enunciated in Islam.

The Prophet denounced the pre-Islamic, patriarchal notion of the husband’s absolute right to divorce, stating that divorce was the most reprehensible of all things permitted: “God has not created anything on the face of the earth that he loves more than emancipation; and God has created nothing upon the face of the earth more hateful to him than divorce” (AD 13:3). The Quran illustrates this point by expressing approval when the Prophet recommended that Zayd should not divorce his wife in spite of the fact that there was long standing dissension between husband and wife. “Behold thou should say to one who has received the Grace of God and His favour, retain your wife in wedlock and fear God” (Q 33:37).

"Taking an uncompromising stand on gender justice is not enough"

The Shah Bano judgement was a landmark in our social and political history for a large number of reasons.

Filing for maintenance under Section 125 had, and does, find favour among divorced women of all communities because there is more hope of speedy justice in the civil courts.

This case was different because Shah Bano's former husband was al awyer and could appeal to the Supreme Court against the judgements given in her favour by the lower courts.

Unfortunately, Chief Justice Y.V. Chandrachud delivered a verdict in Shah Bano's favour, but went on to make critical and offensive remarks about Islam. This elicited a protest from many sections of Muslims who also took to the streets against what they saw, and what they were led to believe, was an attack on their religion and their right to their own religious personal laws.

In 1984, Rajiv Gandhi led his party to victory but soon found his government faltering when his finance minister, V.P. Singh, levelled serious charges of corruption against the Congress.

Faced with a situation in which a huge number of Muslims were protesting on the streets and their leaders, including many in the Congress, were crying themselves hoarse that if the government did not enact a law in Parliament overturning the Supreme Court judgement, the Congress would face decimation in the polls ahead, Rajiv Gandhi took two political decisions which would have momentous and disastrous results: he pushed through an Act of Parliament which denied Muslim women the right to demand maintenance from their former husbands and gave the green signal to the Uttar Pradesh government to unlock the gates to the makeshift Ram mandir set up surreptitiously inside the Babri Masjid. Then, the premises were locked by the court while the case was sub judice.

This attempt to appease the fundamentalists of both communities gave the BJP an issue that ensured its future electoral successes based on successful communal polarisation; and an immediate electoral victory to the Janata Dal which benefited from Muslim anger being converted into votes.

The stage for Mandal and Mandir politics was set. The All India Democratic Women's Association (AIDWA) organised demonstrations of Muslim women against the move to deprive them of rights that they had hitherto shared with the Hindus but the question of gender justice was drowned in the babel created by communal forces.

It was most unfortunate that the BJP, a member of the Sangh Parivar that had opposed the Hindu Code Bill in the name of religion, was able to pose as a champion of women's rights and start a vicious campaign against the minorities, painting them as peoplewhorefused to respect the Supreme Court, who therefore had scant respect for the Constitution and who were anti-national. This campaign took them to power at the Centre and also destroyed the Babri masjid.

The sharp divisions and polarisation have not diminished with time. AIDWA learnt many lessons. Taking an uncompromising position on women's rights and gender justice is essential but not enough.

Broadening the reach of the organisation so that women from all communities come within its fold because they see that all aspects of their oppression are being recognised and opposed has become a major task. Also, religious fundamentalism is attacked and mobilised against because it divides women and denies them their rights and autonomy.

Ensuring gender equality within all religions is our aim. To achieve this, a process of reforms has to be initiated. Also, more secular laws such as the Domestic Violence Act ensuring justice for all women must also be enacted.

The arbitrary, undisputed, absolute power of divorce by the husband with triple talaq in a single sitting was the common customary law practised in pre-Islamic Arabia in the days of jahiliyya or ignorance, where a husband would discard his wife by contemptuously tossing his slipper saying “you are unto me like my slipper”. This is a grave distortion of the law of divorce in Islam and was condemned by the Prophet as the following Tradition demonstrates: “The Messenger of Allah was informed of a man (Rukhana) who divorced his wife three times together, his face became red and he stood up in displeasure and said: ‘Is the Book of Allah being sported with while I am still in your midst?’” (NS 27:6)

This mode of talaq, once pronounced, is considered “bain” or irrevocable where rights of inheritance cease immediately on pronouncement though the death of the husband or wife may occur during the period of iddat or period of waiting. Further, in this form of talaq, if the parties wish to remarry the wife undergoes halala, a humiliating pre-Islamic practice where the wife went through a marriage with another man which is consummated and subsequently dissolved.

As Justice Ameer Ali points out, legitimacy of the triple talaq seems to have crept into Islamic jurisprudence at the instance of the Umayyad monarchs. Inexplicably, although disapproved by the classical jurists, it has been accepted by most Sunni jurists.

Unfortunately the legality of this mode of divorce is upheld in India if the husband were to repudiate his wife during her menstrual flow, if he is in a drunken state, in a fit of temper, in jest, at the slip of a tongue, when the woman is pregnant and other such situations, communicated even by means of a telephone call, an SMS, through Facebook or over Skype.

Needless to say talaq-i-bidat has devastated the lives of many women and children. Deprived of any opportunity for reconciliation, this mode of divorce has been subject to criticism in several Muslim countries.

Modernist interpretation advocated by scholars introduced reform through the juristic means of ijtehad (creative interpretation). Several Muslim countries have brought about reform through codification. Countries like Turkey, Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia, Indonesia and Pakistan have either reformed the law completely or brought about legally stringent preventive measures in this area. Tunisia brought about reform by de-recognition of the triple talaq within the circumference and perimeter of Islamic law.

The time has come for major strides to be taken to bring about reform and change in the Muslim Personal Law in India. In order to accomplish this, codification of the Muslim Personal Law is an imperative. The process of codification of Muslim Law must now be seriously undertaken by a group of legal experts, experienced jurists well versed in the Muslim law, legal experts, liberal ulema and scholars in the field. Gender-just laws must be the common denominator. Alongside Muslim women, Muslim men’s organisations must push for change.

If Muslim countries can bring about reform in family laws India must follow suit. In the words of Justice Hidayatullah: “If the lead is coming from Muslim countries, it is hoped that in the course of time the same measures will be applied in India also.”

We await the judgment of the Supreme Court, seeking gender justice.

Receiving a triple talaq divorce by post, Shayara Bano has moved the Supreme Court, questioning the legality of the practice and seeking an end to it. Speaking with Rohit E David, Shayara discussed her fight against triple talaq, the significance of Shah Bano, Rajiv Gandhi, PM Modi, politicians pandering to men – and people saying ‘Bharat Mata ki jai’:

What are the struggles you’ve undergone?

I have been through a lot. There are many who are saying now that i am a non-Muslim because i have contested triple talaq – but my difficulties started with seven abortions that were forced upon me. My in-laws used to trouble me for dowry too.

Right from the day i got married to my former husband, he used to say, i’ll give you talaq. Going through life in this way was a tremendous emotional struggle for me. I used to keep mum in front of my husband but this eventually led him to only abuse and torture me physically. By 2015, the persecution had increased a great deal.

All of these incidents had a very frightening impact on my children. Both of the kids are with my former husband now. I want to ask, has Muslim personal law ever thought of what befalls children whose parents have been given triple talaq?

I’m now fighting for the custody of my two kids, who are 13 and 11 years old respectively. I haven’t even spoken to my kids since i came to my maternal home. My in-laws don’t allow my children to speak with me.

I am extremely worried about their well-being.

Could you tell us about the triple talaq you got from your husband?

Last year, i had come over to my parents’ house in October – one day, i got a triple talaq through the post. The postal talaq had the signatures of two witnesses as well.

I then decided to take up the fight and file for maintenance.

Shah Bano got legal justice which was revoked by government then – do you think you’ll get justice now?

I know that in 1985, Shah Bano was denied justice – i have full hope that i will get justice now.

Rajiv Gandhi’s attitude to Shah Bano created history – do you have a message for Prime Minister Narendra Modi now?

I only want to tell and urge PM Modi that the Constitution should be the same for Muslims and Hindus.

It’s my request to him to completely erase triple talaq from India.

Do Indian politicians cynically pander to men, ignoring women – making them more vulnerable?

Yes, absolutely. And men don’t consider women equal to them either – especially when it comes to the Muslim community. I can tell you that there are many Muslim women who live in fear every day of getting triple talaq from their husbands.

The men in our community fully exploit women.

I have great hopes now that triple talaq will be abolished in our country. Along with this, the ‘Halala’ tradition, which demands that if a repentant husband wants to remarry his divorced wife, she has to be another man’s wife first before a final comeback, should be repealed completely.

I want the coming generation to benefit from my verdict. I don’t want them to undergo exploitation like i have.

It is my request to all Muslim women who have got triple talaq from their husbands to come forward and fight against this injustice.

Do you consider triple talaq un-Islamic?

Yes, it is un-Islamic. In the holy Quran, there is no mention of triple talaq.

This law came into effect thanks to maulvis, who wanted to set things for themselves.

Has the time come to amend religious laws in the country?

Of course – for the simple reason that they are outdated now.

Hindu laws, when it comes to divorce, are pretty strong. Hindu women don’t have to undergo bahu vivahs or halala.

Make laws equal for every community.

Speaking of communities, we’ve heard much on intolerance in India – is there more communal intolerance today than before?

No, i don’t think the situation is like that. There is no communal intolerance between Hindus and Muslims.

What about the ‘Bharat Mata ki jai’ slogan controversy?

I feel all Muslims should say ‘Bharat Maa ki jai’ – there is nothing wrong with us raising this slogan.