“I felt compelled to write a strongly-worded mail to the prime minister’s office after a young girl from my town, Bahraich, called me and told me how her husband gave her a triple talaq and her father-in-law, a mufti, said they will take her back after a halala. This despite the Supreme Court verdict,” Arif Mohammad Khan, an Islamic scholar and former cabinet minister who resigned over the Shah Bano case, told me. In the mail, he reiterated the need for a comprehensive reform of Muslim family law, and urged the government to write to concerned organisations and individuals, giving them a three-month period to submit proposals on a draft family law, conforming to constitutional and religious beliefs. He further suggested holding meetings with stakeholders and entrusting a parliamentary sub-committee with the task of processing these proposals for a report to be tabled in the parliament for it to deliberate and adopt a possible new codified law. He is also one of the main architects behind the present triple talaq Bill.
Muslim women’s groups like the Bharatiya Muslim Mahila Andolan (BMMA) have been pressing the need for reforms in Muslim family law for over a decade. They see the initiation of the present Bill by the government, on the behest of demands from the ground, as a good first step, albeit requiring some important changes. While the Bill was being tabled in the parliament, a Trinamool Congress (TMC) leader said, “We are not opposed to the Bill, but we want the Bill to be strengthened. We want it to be sent to the select committee”. The Congress also passed the Bill in the Lok Sabha.
The sense one gets from various articles and from social media is that the main concerns of those opposing the Bill is 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. To the first argument, it is imperative to state that the demand for codification and protection of Muslim women from evils like triple talaq has come from Muslim women themselves and not from the ruling party, whose track record in being protectors of minority rights is not a secret for anyone. Secondly, it is astonishing to see critics, academics and supposed 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.
The hastag #istandformuslimmen and articles likening the term ‘talaq’ to have as much weightage as the term ‘kabaddi’ are abhorable, to say the least, for those who have seen how devastating instant triple talaq continues to be for Muslim women. Some academics have gone so far as to say that a clause prohibiting triple talaq should be added in the nikahnama. They have said that increasing the mehr or dower amount to five times as a deterrent in case of violation is a better option, not realising that Muslim women have been fighting for years to ensure they get their due mehr at the time of the nikah and not to use it as a deterrent against an unlawful practice. Why should the caveat of misuse only be focused upon when the main stakeholders are women?
For those talking about misuse, is it not naïve to think that the wife will immediately refuse a false allegation made by someone about an irrevocable divorce, if it has not happened? Is it not too much of a stretch to draw comparisons between cow vigilantism and a jail term for a husband who forces his wife out of their matrimonial home, giving her divorce by a means which though has been declared void by the Supreme Court but continues to be practiced? One must not forget the statement made at a press conference by Maulana Madni of the Jamiat Ulama-I-Hind after the Supreme Court verdict in the Shayara Bano case: “If you want to punish the person for it, you can do so, but the divorce will be recognised.”
So what is the way forward, then? Op-eds and articles vilifying the misuse of the law or merely looking at the Muslim woman as a hapless victim who is looking only at economic gains in her marriage, irrespective of the treatment meted out to her by her husband, will not help the ordinary Muslim woman. The ordinary Muslim woman who could have used a law meant exclusively to ensure that her present or future husband would never be able to use the double-edged sword of triple talaq on her, rendering her homeless overnight. The Bill did not come about in a vacuum. Years of struggle and the failure of community leaders in addressing the issue and demands from ordinary Muslim women, leading up to the Supreme Court verdict, have led to the Bill. And we need to recognise this.
Organisations like the BMMA – which I am a member of – have come up with a list of suggested amendments to help strengthen the Bill. These were formed after detailed consultations with the community, specially ordinary Muslim women, academics and Islamic scholars, keeping in mind that the main stakeholders here are Muslim women themselves. Some suggestions among these include:
- 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.
- 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.
- 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 age of marriage, registration of marriage, polygamy, mehr, custody of children and inheritance. BMMA has prepared a comprehensive draft along these lines. Muslim women must get legal parity, just as Hindu women and Christian women have, through such a codified law.
Afreen, one of the petitioners in the triple talaq case, feels that a law criminalising the unlawful and un-Quranic method of divorce was much needed as she is personally aware of many cases where women have been victims of triple talaq post the August 2017 judgment. Having fought this legal battle, she feels a law (with additions on the correct method of divorce etc.) will ensure that a Muslim husband will think twice before arbitrarily divorcing his wife, despite the Supreme Court declaring the method void.
Mariya Salim is a women’s rights activist and researcher. She is also member of the Bharatiya Muslim Mahila Andolan.