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Triple talaq, polygamy violate fundamental rights of Indian Muslim women

October 19, 2016

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Bharatiya Muslim Mahila Andolan, a women’s rights group in India, protests against triple talaq.
Bharatiya Muslim Mahila Andolan, a women’s rights group in India, protests against triple talaq.

The distinction between sanity and insanity was blurred in the minds of otherwise normal individuals of which there was ample evidence in the way the All India Muslim Personal Law Board (AIMPLB) had defended the practice of triple talaq in an affidavit submitted to the Supreme Court last month, by stating that women were lesser mortals than men. In response to a petition challenging polygamy and triple talaq by a Muslim woman named Shayara Bano and by some Muslim women’s organisations urging the apex court to declare triple talaq and polygamy unconstitutional, they came up with this gem, “Sharia grants right to divorce to husbands because men have greater power of decision making. They are more likely to control emotions and not take hasty decisions.”

The complete abandonment of reason by these powerful men who constitute the AIMPLB did not cease here. While asserting that the practice of triple talaq as part of Islam was protected by the fundamental right to religion that was beyond the adjudication of the Supreme Court, the AIMPLB also vigorously defended polygamy, which allows a Muslim man to have four wives, as being necessary to ‘curb illicit sex’ and to ‘protect women’.

These learned gentlemen, who reek of a misogynist medieval mindset need to be shown their place in secular and democratic India ruled by the Constitution. I am not sure if in echoing these sentiments they are truthfully reflecting the position of their scripture either. As Karen Armstrong says in her authoritative Islam — A Short History, “The Quran gave women rights of inheritance and divorce centuries before Western women were accorded this status.”

The Muslim Personal Law (Sharia) Application Act, 1937, allows Indian Muslims to be governed by the Sharia. The absence of codification has legally allowed community leaders to hold the practices as sacrosanct, thereby subjecting Muslim women in India to arbitrary triple talaqs. Similarly the argument of AIMPLB that the purpose of polygamy is to prevent women from leading a spinster’s life is bizarre, given the sex ratio of 951 females per 1,000 males among Indian Muslims.

Personal laws of Muslims, like the Hindus, flowed from patriarchy, misogyny and subordination of the marginalised sections of society. These were put in place to protect entrenched interests when religion lost its vitality and intellectual appeal and gave way to meaningless rituals. These laws have to be reformed to meet the changing dynamics of an evolving and vibrant society. Triple talaq and polygamy has been banned in many Muslim countries. The ethos of a democratic society is clearly against theocratic practices the AIMPLB would like to enforce for the Indian Muslims.

Unfortunately not many prominent Muslim voices have been heard against these abhorrent practices in India, the reasons for which can only be the fear of retaliation — which does not exclude physical violence — by violent orthodox elements within the community. That clergy, lacking in modern liberal education, derives their power from the poverty, ignorance, and the economic and educational backwardness of large sections of the community. Governments in the past had always shied away from taking on this clergy, for fear of losing Muslim votes. The fact that some Muslim women have now approached the judiciary proves a weakening of their overwhelming hold, which is why they are reacting so loudly.

Lost opportunity

In the Shah Bano case (1985), when the Supreme Court had ruled that a divorced Muslim woman was entitled to fair maintenance far above what was granted under the Muslim Personal Law, the same AIMPLB and the mullahs had threatened that the judgement was tantamount to interference in their religion and blackmailed the Rajiv Gandhi government into capitulation. They forced it to enact the Muslim Women (Protection of Rights on Divorce) Act, 1986, that annulled the judgement. An opportunity that could have been a milestone in the Muslim women’s search for justice was thus surrendered for petty vote-bank considerations.

This time, however, the government has put up a spirited defence, and dissociated the issue from that of the Uniform Civil Code. In its response to the affidavit, it clearly stated its position that “gender equality and the dignity of women are not negotiable”. If Islamic states could reform Muslim personal laws, these certainly could not be considered an integral part of the practice of Islam. Arguing that “No undesirable practice can be elevated to the status of an essential religious practice,” it said, “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of menfolk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”.

But the fundamental question is whether in a secular democracy, religion alone can be a reason to deny the equal status and dignity available to women under the Constitution. A secular nation is under no obligation to respect the norms or commandments of any religion, just as it does not have the liberty to violate such norms without reason. Article 13 stipulates that any law that impinges upon fundamental rights shall be void, and the practices of triple talaq and polygamy should therefore be declared illegal, since they violate the fundamental right to equality.

The Statesman / India

Published in Dawn October 19th, 2016