A Muslim woman will still have to go to court to secure her rights.
Discussions on the ban on triple talaq are getting heated and the positions of the contesting parties are getting rigid – the All India Muslim Personal Law Board (AIMPLB) at one end and aggrieved women, and their supporters, at the other. Even in progressive circles there is a presumption that a Muslim man can instantly divorce his wife by just uttering ‘talaq’ three times and thereafter she is devoid of any rights. The support for a ban rests on this premise.
Belonging to a conservative Muslim family from Mohammad Ali Road (stigmatised as a Muslim ghetto) in Mumbai, I have been a witness to husbands pronouncing talaq in anger and then throwing the wife out of their home even in my own family. From the various newspaper articles I read, I too believed that arbitrary triple talaq was a pressing problem for Muslim women and I used to feel really angry about Muslim men exploiting their wives in this manner.
Then one day, in my final year of law, I attended a lecture on Muslim women’s rights that changed my perspective. I learnt about the various legal strategies a woman can use if her husband sends her a talaqnama. This led me to joining Majlis Legal Centre after my graduation in 2006. Since then, I have been litigating on behalf of (predominantly Muslim) women. It is through this process of interacting with Muslim women and securing their rights that my understanding of Muslim law has evolved.
Three women and three different situations
Farzana was my first case. I was as involved with it as she was. The day she came to our office bruised, with four children in tow, I couldn’t sleep the whole night. I wanted to do everything to protect her. She lived in a small one room tenement in a slum in Kurla. The entire mohalla (locality) was instigating her husband to pronounce talaq on her as they were fed up of the disturbance caused by the frequent fights between the two. She was scared that if he pronounced talaq, where could she go? Though we explained to her that she had a right to stay in the house, even if he pronounced talaq, she shook her head in dismay and said, “No, that is haraam.” The mohalla committee had called for a meeting a week later, and it was evident that Farzana needed a court order to protect her immediately. We explained to her that once she secures an order of residence, even if her husband pronounces talaq it would be najayaz (invalid). She was convinced.
Our team worked very hard and filed her case under the Domestic Violence Act to secure her an order of protection and residence. On the next date when her husband’s lawyer produced a talaqnama, we argued that it was invalid as the legal process had already started. The judge accepted our claims and passed orders that would allow her to live in the house and protect her from future violence from her husband.
Through the many ups and downs that went on in court, we saw Farzana change and become confident through her engagement with the legal process. For her, the court was no longer an intimidating space. She felt secure with its affirmation. The husband too realised that she had support and hence could not be intimidated by violence or the threat of talaq.
Hameeda was thrown out from her home by her alcoholic husband when she was pregnant with her second child. She went to the local police station to file a complaint. The police phoned the husband to call him for negotiations. He asked the police to hand over the phone to Hameeda and over the phone he pronounced talaq three times. The police backtracked and informed her that there was nothing more they can do as her husband had already given her talaq. A distraught Hameeda returned to her parents and they were running pillar to post seeking legal advice. After they had spent a large sum in legal fees, a well wisher referred her to us. By then she was seven months pregnant. Immediately, we filed for maintenance and delivery expenses. As expected, the husband came to court and said that he had given her talaq over the phone and that the police were witness to it. The judge scoffed at the lawyer for such a preposterous suggestion and drew his attention to the Supreme Court ruling in the Shamim Ara vs State of UP [AIR 2002 SC 3551] which gives clear guidelines on how a talaq is to be pronounced. We told the court that according to the Quran, a Muslim woman could not be divorced when she was pregnant. The talaq was held invalid. Thereafter the case proceeded and Hameeda was granted maintenance.
Zeenat belonged to an affluent business family and lived in a spacious bungalow owned by a private trust created by the husband’s grandparents. Her husband was not only violent but also a spendthrift. When Zeenat objected to him bringing other women into the house, he left the house and started living with his parents, but would return to the house frequently in his drunken state and break fragile items or expensive furniture. Zeenat believed that her husband had underworld links and could destroy not only her, but also her entire family. A friend referred her to us. When I met her, she was a mental wreck. She didn’t really believe that we could secure her rights. The day we filed her case, she was so overcome with emotions, she could not contain herself in the presence of the court officials and broke the down completely. But we did our best to make her feel secure. As the case continued, she gathered her wits and became more confident. Initially the husband refused to attend court. When summons were issued, he came with a woman lawyer and the customary talaqnama in hand. The judge brushed it aside and ordered him to pay the educational expenses of the children, granted her Rs 50,000 as maintenance and an injunction restraining the husband from dispossessing her from the matrimonial home. Zeenat thought it was a miracle, because everyone had told her that it was futile to go to court as she had no rights. Also, her husband was rich and powerful and had all the right connections.
Even though physical violence, mental harassment, desertion and alcoholism are common problems women face, the remedies a woman seeks can be different. For us, the needs of the client are central and we evolve our legal strategies according to them. She is free to decide whether she wants to continue or end her marriage or accept the talaq. We use a combination of existing provisions to reach settlements that would allow the woman to lead a life of dignity. There are some who were brutalised in their marriages who welcome the talaqnama and are happy to be free of an oppressive marriage. All they want is to secure their rights to a lump sum maintenance under the Muslim Women’s Act.
The Shamim Ara Judgement
So what has ShamimAra judgement given us? It makes it clear that talaq sent over email or text message or through a notice or through the Qazi, etc is not valid.. The judgement also laid down the following procedure for a Muslim husband to divorce his wife:
- Talaq cannot be pronounced in a single sitting and must be preceded by efforts of arbitration and reconciliation by mediators appointed by both the sides who must explore the possibility of reconciliation by resolving the issues. Only if these cannot be resolved, talaq must be pronounced as a last resort.
- Talaq has to be pronounced before witnesses.
- The talaq has to be pronounced over three sittings over a period of three months. These months are to allow the couple to reflect on their relationship and not come to a hasty conclusion. During this period, the woman is entitled to her right to residence and maintenance from the husband. In case there is cohabitation during this time, the Talaq would be null and void.
- While pronouncing talaq, the husband should be in his senses i.e. he should not be drunk or should not be in an angry mental state, as during that time he is more likely to lose his sense of right and wrong.
- While pronouncing talaq the woman should not be in menstruating or pregnant.
- Before pronouncing talaq, the husband must fulfil his obligations towards his wife, such as return her mehr and belongings, pay her maintenance for the iddat period (three months) and provide her a lump sum amount for her future needs that is commensurate to the standard of living she enjoyed in her husband’s home.
In case the husband fails to comply with his economic obligations, the wife can file for reliefs under the Muslim Women (Protection of Rights on Divorce) Act 1986(MWA).
How will a ban on triple talaq help Muslim women?
We have secured the rights of Muslim women through the legal process in a number of cases and have stood firm against arbitrary and frivolous contentions of talaq evolved by crafty and manipulative defence lawyers. Magistrates and judges are well versed with the Shamim Ara case, as well as other similar judgements, and do not accept the husband’s plea of triple talaq.
How will the current campaign, initiated by some individuals and groups, to ban triple talaq, and make husbands criminally liable, help Muslim women? As a woman’s rights lawyer who has worked closely with Muslim women for a decade, I realise that most women are reluctant to approach the police and press criminal charges. What they seek is a life free of violence and to secure their right of maintenance and child support. More importantly, a ban will not change the fact that a woman has to go to a civil court to secure her rights. So my question is: Will such a ban truly change the life of a deserted Muslim woman?
All names have been changed to protect the confidentiality of our clients
Nausheen Yousuf is a lawyer at Majlis Legal Centre, Mumbai.