Law

An Open Letter to the All India Muslim Personal Law Board on Divorce Laws

As the debate on banning Triple Talaq in India is again making news, Mariya Salim reminds the AIMPLB members that they need to take the side of the aggrieved and support the ban.

Muslim brides wait for the start of their mass marriage ceremony in Mumbai May 11, 2014. Credit: Reuters/Danish Siddiqui/Files

Muslim brides wait for the start of their mass marriage ceremony in Mumbai May 11, 2014. Credit: Reuters/Danish Siddiqui/Files

Dear Members of the All India Muslim Personal Law Board (AIMPLB),

Two days ago I was sitting with the vice principal of the all girls’ school I attended as a child in Kolkata. She told me how she was aghast at the request of one of the prospective students’ mother to not disclose her educational qualification in front of her husband, when they come for a formal interview for admission. She had a masters in psychology from Aligarh Muslim University. “He thinks I have only studied up to class 10. If he finds out, he will divorce me,” she said.

While the aftershocks of the opposition to the Shah Bano case continue to haunt Muslim women in the form of the Muslim Women’s bill, as an Indian Muslim woman and a student of Islamic feminism and Human Rights Law I am amazed that little has changed since 1985 as far as the involvement of an organisation of your repute in matters concerning rights of Muslim women in India is concerned. Fully aware of the fear of many, including me, of mistaking the demand of codification with that of a demand of unification, I believed that educated members of the board would stand for and with Shayara Bano and her gender and demand that ‘Triple Talaq’ needed to be banned, made unlawful!

Muslim women are expected to live and abide by religious norms and their conformity to religious values is viewed as a basis of judging the identity of their community as a whole, as discussed by Zoya Hassan in her bookForging Identities: Gender, Communities and the State in India. More often than not, they are discriminated against by patriarchal codes of religious laws and expected not to rise against the status quo in the name of protecting community identity. This community identity has emerged as a formidable force and what is evident today is a tension between two fronts: the male dominated Muslim leadership’s desire to ensure that rights remain in the domain of a ‘collective communal existence’ and not a ‘function of democratic citizenship’ on one hand, and the demand for rights and justice for women on the other. Thus, in the wake of the rising political right and communal tensions and lynchings, the uncodified Muslim Personal Law in India – which deals with issues such as marriage, divorce, maintenance, inheritance, succession, adoption and custody of children – has become a vital symbol of minority identity, the defense of which – right from the overturning of the Shah Bano judgement – has resulted in the subordination of Muslim women in India to the perceived interests of the Muslim community. The tussle between enactment of a Uniform Civil Code (UCC) by the political right, governing heterogeneous communities as one, on one hand, and the insistence on maintenance of status quo, fearing the loss of their religious identity, by male leaders of the religious minorities on the other, has left Muslim women as the worst affected.

Shayara Bano, like her predecessor, Shah Bano has approached the apex court demanding the protection of a right which is not only constitutionally guaranteed to her, but for those opposing her, including the AIMPLB, it is imperative to know that her demand is not Unislamic at all. The board which claims to be the protector of Muslim Personal law (MPL) in India, and which is now going to be party to the case and contest her claim, should have done enough earlier to ensure that women like Shayara did not have to face what they are facing in the first place. Your claim that Muslims are content with the Shariah as it is practiced in India today has no basis, with no data to prove this claim. On the contrary, the Bhartiya Muslim Mahila Andolan’s (BMMA) study, under the leadership of its founders Zakia Soman and Dr Noorjehan Safia Niaz, covering 4,500 women across ten Indian states is proof enough that Indian Muslim women are demanding a codification of the largely uncodified body of Muslim laws in India. With over 80% respondents saying there needs to be a reform in the current MPL, over 75% also believed that the age of marriage for girls should not be on attainment of puberty but should be eighteen years and above, contrary to what you have been supporting. Over 80% of those surveyed were of the opinion that adoption should be made legal under MPL. Organisations like BMMA are also oblivious to the fact that their demand for reforms may be wrongly misappropriated by the political right, the ruling BJP, and thus is very vocal in clarifying that codification in no way is a demand for UCC. For instance, while the study shows that out of all the women surveyed, 92.1% were in favour of a total ban on the ‘Triple Talaq/oral divorce’, the solution suggested was in the form of ‘Talaq-e-Ahsan’ to be the alternative, with majority of those surveyed wanting arbitration to be mandatory before divorce.

If the divorce to Shayara Bano is declared illegal, will it be a defeat for the community? Or is the worry more about Muslim men not being able to unilaterally divorce their wives as and when they wish to?

BMMA, in its draft Muslim Family Act calls for a complete ban on ‘Triple Talaq’ (Oral repudiation of marriage by merely pronouncement of the term ‘Talaq’ or divorce thrice by the husband) and calls for only the ‘Talaq-e-Ahsan’ method of divorce. I have had the chance to compile case studies of women from across the country who have been divorced unilaterally by their husbands, sometimes even on the phone and thus am aware of ground realities of this evil myself. BMMA seeks a complete ban on ‘Triple Talaq’ and provide relief to specially women belonging to poor economic backgrounds.

You at the AIMPLB on the other hand, refuse to take a firm stand on the issue. Thus, while you recommend the ‘Talaq-e-Ahsan’ method described above, in your model ‘Nikahnama’, the husband is ‘instructed’ to merely ‘avoid’ using the ‘Triple Talaq’ method of divorce. The board insists that the ‘Triple Talaq’ method is not a legal evil but merely a social one and hence does not call for a complete ban.

Maintenance of status quo in the name of not interfering in the ‘divine’, even though the Shariah as practiced in India is man-made law, has been the stand taken by the AIMPLB whenever confronted by issues which directly affect Indian Muslim women. Women organisations like BMMA among others have been extremely vocal in their stand on Muslim women rights and when one compares their work with all male led organisations like yourself in furthering the rights of Muslim women, there is little doubt as to who should lead the movement for reform in the Muslim community.

Please stand with the aggrieved, not against them.

Sincerely,

Mariya Salim

An Indian Muslim Woman standing firmly in solidarity with Shayara and her cause.

 

  • Dr. Faraz Ahmed Farooqui

    Very well written Mariya. It is high time we get rid of this malaise and move towards greater progress, especially when it comes to women.

  • Nishkarsh

    Great piece – it’s always great to see women being totally aware and vocal about their rights. However, I don’t quite understand why you seem to suggest codification (important as it is) is the ultimate solution. In a secular democracy like India, it seems obvious to me that a uniform civil code must exist. You seem to brush this aside as if it’s just a BJP idea, and I’m not sure why.