By Bharti Garg
There has probably been no concern as grave in the human rights crusade as the empowerment of women, and certainly no other failure as persistent as the one to successfully address the same. Long gone are the years when the role of woman was expected only within the precincts of the house, for now one can see some women having already made a considerable grade in unshackling themselves from the chains of patriarchy while others still continue to make relentless efforts in that direction. On the flip side, gone also are those years when she was viewed as no more than a chattel at home, for the salacious tendencies of some men dearly cost her liberties even outside—in public and at workplaces. Her ordeal is further beyond containment when one realizes that the belief that religion is inviolable seems recklessly exploited by peddling perverted misconstructions of religious scriptures, only to suppress her expression and solemnity, and sometimes even the right to worship. Male hegemony is clearly reflected when he claims to be the trustee of women’s powers and rights. Is this then not a breach of the promise of freedom of religion made to men and women alike under Article 25 of our Constitution? (As regards her right to equality under Article 14 and right to dignity and bodily integrity under Article 21, the need for such a question doesn’t even arise!)
It may firstly be noted that touching upon personal laws is no doubt only one of several steps needed for the emancipation of women, albeit an essential one. This is evident from the social and proprietary reforms brought about for Hindu women through the Hindu code bills, which have with time been able to elevate their negotiation power in domestic and matrimonial institutions. This is unlike the case of Muslim women, who are still striving to translate their power of endurance into one of self-assertion.
The marriage among Muslims is not only a civil contract but in essence a sacrament as well. The egregious practices of triple talaq, halala, and polygamy deify the husband and subjugate the woman, and belie the oneness of their bond. Triple Talaq is of various forms, but the most contentious of them is talaq-ul-biddat, followed majorly by the Hanafi Sunni sect. It is that prerogative of a husband which allows him to irrevocably divorce his wife by pronouncing ‘talaq’ three times in one sitting and throw her out in a jiffy. On the other hand, a Muslim woman’s right to divorce is neatly ensconced under the Dissolution of Muslim Marriages Act, 1939, which provides for certain grounds upon which she can seek divorce from court. There are some powers of divorce available to her under personal law as well, but these are either delegated to her by the husband or effective only when he accepts her offer of divorce.
Lately, the invocation of the power of instant talaq by men has become so rampant that much clamour is being raised against the constitutional (and even Quranic) validity of such ordains. Instances like divorcing over WhatsApp, a woman coming to know that she had been divorced four years ago, banishing a woman out of the house simply because she protested against her husband’s extra-marital relationship, etc., have come to the fore, which reflect how injustice resulting against these women is being slipped through the cracks.
Two legal developments are important to be foregrounded here. One is the case of Shamim Ara v. State of Uttar Pradesh, wherein the Apex Court moderated the rigidity of this practice by observing that such a divorce can only be validated if it is proved that there were reasonable circumstances justifying the same, and that sincere attempts were made at reconciliation by the spouses but which could not achieve fruition. However, it is well known that these safeguards are hardly adhered to by most of them.
Then, as regards the maintenance rights of a divorced Muslim woman, the decision ofyth Apex Court in the case of Mohd. Ahmed Khan v. Shah Bano Begum was a significant step to extend the same beyond the iddat period till her remarriage. However, to nullify the effect of this judgement, the Parliament made an abortive effort by passing the Muslim Women (Protection of Rights on Divorce) Act, 1986, but thanks to the purposive interpretation adopted yet again by the Court in Daniel Latifi v. Union of India, the position that was held out in the former case has been restored.
Did you know: Recently, a panchayat in Sambhal fined a man Rs. 2 lakh for divorcing his wife by uttering ‘talaq’ thrice in one go.
A ray of hope has again shone recently, this time through the voice of one such victim, Shayra Bano, challenging this system of divorce and prompting the Supreme Court to sacrifice its vacations for expeditiously settling the question.
The expostulations to the practice arise out of three broad legal grounds. Firstly, because it discriminates between the status of wife and husband, and also between a woman of Muslim faith and those of other faiths, it violates the Right to Equality of women. Secondly, her personal and financial security is riven with the fear of uncertainty of future in her husband’s house, mocking her dignity and depriving her of dignified conjugal rights, which transgresses Article 21 of our Constitution.
However, those professing its retention retort that such an action would infract their freedom of religion and the sanctity of the Quran. The Court has therefore been called upon to decide if triple talaq is at all countenanced by the Quran or Shariat law. Another poser is whether the solution lies in only securing maintenance rights of women and not in abolishing the 1,400-year-old custom altogether.
Although the legal issues have to be settled by the Court as the matter is sub judice, what is noteworthy is the response of the All India Muslim Personal Law Board, which incontrovertibly admits that Islam generally disfavours the breakdown of marriage and that an impulsive and thoughtless uttering of three ugly words is invidious. It further maintains that it would consider laying down certain guidelines for Muslim husbands against its misuse, or an option for women to incorporate a clause in the nikahnama excluding triple talaq. However, this obfuscates the actual issue at hand.
Firstly, it is the Constitution of India which is the source of fundamental rights, and the same cannot be allowed to be waived through nikahnamas. Secondly, financial security is definitely a concern for a woman who is asked by this society to be dependant on her husband for most of her basic material needs, but the same is only ancillary. To a woman, a marriage is more than just a source of livelihood; it is a union of love and respect. The culture of instant talaq is abominable not because she is fired without a notice of termination, but because the modern understanding of marriage and gender parity accepts nothing less than equality in all spheres of life. Moreover, if it is made only a maintenance issue, then would it mean that an otherwise financially independent woman could be deprived of her consortium rights at the vagaries of her husband? If that is so, then we have certainly not comprehended the meaning of women’s empowerment.
Nonetheless, it may be reminded that even the present laws allow a divorced Muslim woman to obtain maintenance till her remarriage. Further, there are secular laws such as the Protection of Women from Domestic Violence Act, 2005, wherein the court can pass protective orders against the delinquent husband. Thus, what the Muslim female community demands now is not just protection, but progression.
To harbour the idea that constitutional guarantees apply everywhere except at homes is only an attempt to escape stealthily from the responsibility of giving shape to the blueprint which was sketched by our constitution masons. If personal laws are allowed primacy over constitutional laws, then that would uproot the very structure on which our nation rests. It cannot be forgotten that even the fundamental right of freedom of religion and its core and essential practices are subject to that of equality and dignity, for although it is true that the modern Indian playground does allow religions to play, it is only till the time they can be fair to the other players.
It remains to be seen how the judicial interpretations of the Constitution, the Quran, and other sources of Muslim law will unfurl this grave issue, which involves substantial public interest and gives an opportunity to the highest court to create another epoch in Indian history. I hope that this opportunity is seized to the fullest, that triple talaq is declared unconstitutional, and that equal rights of divorce are put in place for spouses. While most of the Islamic nations have long considered the practice to be un-Islamic, our nation continues to not regard it as un-secular.