Muslim personal law needs to be rehauled
The SC made triple talaq illegal in August 2017. This was followed by the Muslim Women (Protection of Rights on Marriage) Act, 2019. While these steps have led to a dip in the number of triple talaq cases, it has led men to resort to other unilateral methods of divorce
On June 20, Benazir Heena received a notice “of pronouncement of the third and final talaq” from her husband. Under Talaq-e-Hasan method of divorce a man can divorce his wife by pronouncing talaq once every month over three menstrual cycles. On May 2, nine days after receiving the first notice, Heena filed public interest litigation in the Supreme Court (SC), seeking a ban on Talaq-e-Hasan. However, on Monday, the SC (which is hearing two separate pleas against Talaq-e-Hasan) said that the court’s primary focus is to provide relief to women before deciding on the constitutional validity of this form of divorce. On August 16, the SC held: “Prima Facie, this [Talaq-e-Hasan] is not so improper. Women also have an option. Khula [The right to end a marriage given to women] is there.”
The SC made triple talaq illegal in August 2017. This was followed by the Muslim Women (Protection of Rights on Marriage) Act, 2019. While these steps have led to a dip in the number of triple talaq cases, it has led men to resort to other unilateral methods of divorce, such as Talaq-e-Hasan, without making any efforts for reconciliation. Despite the excitement over the 2019 Act’s passage, the law does not provide for a just and fair divorce for women. The solution lies in reforming the Muslim Personal Law (Shariat) Application Act, 1937, which deals with marriage, succession, inheritance, and charities among Muslims.
In addition, we need a Muslim code bill, similar to the Hindu code bills, which abolished customary practices in favour of a common law code. This is important because Muslim women are entitled to the same legal protection extended to other communities but have been denied, thanks to the stranglehold of conservatism and politics.
Reforming family laws is not easy. Jawaharlal Nehru and BR Ambedkar championed the Uniform Civil Code (UCC) but it was viewed as an onslaught on our culture by Right-leaning members of the Constituent Assembly. Their opposition forced Nehru to drop the UCC. In 1952, he succeeded in introducing the Hindu code bills, which passed as separate pieces of legislation in 1955-56.
Unfortunately, for Indian Muslims, a similar code is nowhere in sight. The conservative ulemas have always been against reforms and raise the bogey of “Islam in danger” whenever gender justice is demanded. They say “Islam gave rights to women 1,400 years ago”, but oppose any move towards translating these rights into reality. Consequently, Muslims are governed by the 1937 Act. This is inadequate.
The Act merely states that Muslims will be governed by Shariat (Islamic law), and is silent on essential matters like age of marriage, divorce procedure, guardianship and custody of children, halala and polygamy (currently under scrutiny by the SC), inheritance, and women’s share in property. In addition, it is silent on the mandatory affirmative traditions such as consent, meher, and nikahnama. In the absence of codified laws, misinterpretations and distortions by conservative ulema dominate practices in marriage and family matters, leaving scope for arbitrary and misogynistic norms and practices such as unilateral talaq, halala, and child marriage. This leads to violation of women’s rights despite Quranic injunctions of gender justice and the constitutional promise of gender equality. Recently, the Delhi high court upheld the validity of a Muslim marriage where the bride was only 16, basing its verdict on the understanding that in Islam puberty is the age of marriage.
Moreover, the dominance of conservative ulema has led to a common sense that men are superior to women. It is easy for a husband to divorce his wife without any consultation with her. Contrary to this, most women find it difficult to exercise their right to khula. Earlier, Muslim personal law could not be reformed, thanks to the politics of secularism. We have not forgotten the Shah Bano episode of 1985-86.
Even though the Bharatiya Janata Party-led government supported the abolition of triple talaq, a full-scale reform remains a far cry. Already there is heightened politicisation of the UCC which is posed as anti-minority.
Thanks to this lack of commitment to gender equality, Muslim women remain caught up between patriarchy within the community and politics in the larger context. The voices of reform that arose in the last one and half decades, such as the women-led movement against triple talaq, cannot survive in an atmosphere of hate, religious polarisation, and aggravated communalism.
Zakia Soman is co-founder Bharatiya Muslim Mahila Andolan, and a women’s rights activist The views expressed are personal