The Board gives away the truth regarding its own character by stating in its affidavit, “India is a patriarchal society, and therefore personal laws of all communities are aligned with the patriarchal notion."
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Gender-just laws have always been opposed tooth and nail by patriarchal forces. The battle has always been a vicious and cruel one in which every anti-woman pronouncement of every scripture and every prophet – and these defy computation – has been hurled in the face of those, mostly women but with honourable exceptions, who have dared to demand that women be treated as human beings, equal human beings. The battles have also been long and drawn-out. Victories have been small and far between and never complete. The long battle for a legal victory is always followed by an even longer battle for the victory to be translated into reality. Everywhere, the battle still rages – muted here, loud and clear elsewhere.
We often forget what the Suffragettes in ‘civilized’ and Christian England and America had to face when they demanded the right to vote (and, of course, the fact that it was the ‘Godless’ Soviet Union that was the first country to give all women that right immediately after the October Revolution). And even the millions who have read Jane Austen’s Pride and Prejudice do not really register the fact that daughters could not inherit their fathers’ property in England until just a century ago. That was why the Bennetts, parents to five daughters, were keen to marry their first-born to the distant relative who, although hardly known to them, was Mr. Bennett’s legal heir.
In our own country, the struggle for equal rights for women has been a long and bitter one, with no end still in sight. Dr. Ambedkar fought valiantly to give Hindu women equal rights within the family and had to pay a heavy price for his pains. His Hindu Code Bill was received with howls of angry protest and indignation by self-styled upholders of Hindu tradition and law. He had little option but to resign as law minister and the reforms that he had formulated so painstakingly were enacted piecemeal over the next several decades. Even today, Hindu women are still ‘unequal’ in some spheres.
Women belonging to the Christian and Muslim communities have also had to suffer great setbacks and opposition to their efforts to access equal rights. Mary Roy’s heroic fight for the right to inheritance in the Syrian Christian community, which was strongly supported by the CPI(M) and leaders like Susheela Gopalan, invited the wrath of her community and family members. Christian women, despite tremendous support from many sections, including clerics, of their community have been repeatedly let down by governments of all hues that do not want to risk alienating influential Christian leaders, clergy and groups.
The rights of Muslim women has once again become an important issue of discussion and debate much as it had been some decades ago when the Supreme Court awarded maintenance to the 74-year old divorcee, Shah Bano. This judgment was vociferously opposed on the streets and elsewhere by many Muslim organizations. Our Party was alone in its strong defence of the judgment.
Inside parliament, CPI(M) MPs including the late Saifuddin Chowdhury made strong and eloquent interventions on the issue. AIDWA organised a procession of more than 2,000 Muslim women from all over the country demanding that the Supreme Court judgment be honoured. An AIDWA delegation met the then prime minister, Rajiv Gandhi, and handed over a memorandum signed by thousands of Muslim and non-Muslim men and women demanding that his government support the judgment.
Most unfortunately, despite the fact that he had assured the delegation of his support, he compromised not only the position of his government on a legal issue but on the question of a secular and gender-just approach to women’s issues. It must be kept in mind that Sec. 125 under which maintenance is granted is part of the criminal law procedure which is actually out of the purview of the personal laws of different communities.
Despite this, not only did various Muslim organisations fight tooth and nail against the judgment but they also succeeded in forcing the government to pass a law taking Muslim women out of the purview of this particular section of the law. This act of the government had very serious repercussions and gave the Ramjanmabhoomi movement launched by the Sangh Parivar a tremendous boost.
Since then, the sangh parivar, which led the charge against Dr. Ambedkar’s proposed Hindu Code Bill, has regularly demanded the enactment of a common civil code and posed as a staunch supporter of women’s rights, especially the rights of Muslim women. Of course, neither they nor anyone else has actually formulated the provisions of such a code and submitted them for discussion and debate.
While our party, in principle, believes that patriarchal and unjust laws need to be changed or done away with, we are also opposed to the communalisation of this issue which is unfortunately what has occurred because of the campaign launched by the sangh parivar.
While our party, in principle, believes that patriarchal and unjust laws need to be changed or done away with, we are also opposed to the communalisation of this issue which is unfortunately what has occurred because of the campaign launched by the sangh parivar. While it supports khap panchayats and refuses to enact a law against ‘honour crimes’ it continuously raises the issue of the legal discrimination that Muslim women face in order to increase anti-Muslim feelings in society at large.
AIDWA had taken an early initiative to organise a workshop on ‘Equal Rights, Equal Laws’ where members of all communities had spoken about the injustice that women suffered from the way in which personal laws were interpreted and implemented in India and many reforms were demanded. Unfortunately, no government (including BJP governments) addressed these issues sincerely. The campaign for a common civil code, however, continued to figure prominently in sangh parivar campaigns and BJP manifestoes.
After the Shah Bano issue, the All India Muslim Personal Law Board (AIMPLB), an umbrella organsation of representatives of several Muslim sects, came into prominence and soon adopted for itself the mantle of representing all Muslims. This has been hotly contested by leaders of various Muslim communities, organisations and also eminent Muslim jurists and lawyers.
Recently, issues pertaining to the way in which Muslim Personal Law is interpreted and implemented in India are once again the focus of much public attention and debate.
In April, Shayara Bano approached the Supreme Court to ban the practice of ‘talaq in one sitting’ (talaq-e-bidat). She had been divorced through the sending of a letter by her husband of 15 years. She has challenged not only this form of divorce but also the heinous practice of ‘halala’ that is closely connected to it and also the right of Muslim men to polygamy.
Halala is a practice in which a woman divorced by a man in one sitting has to undergo if her husband later regrets his action and the couple wants to re-unite. For this to happen, she has to marry another man, consummate the marriage with him and then be divorced by him in the same manner. It is not difficult to imagine the humiliation and abuse that this inflicts on the innocent victim. It is also a fact that often the second husband refuses to divorce her leading to further misery.
In his widely recognised Outlines of Mohammadan Law, the jurist Asaf AA Fyzee writes, “There is complete unanimity of opinions that in Islamic parlance the term ‘bidat’ is used for all those practices which originated after the Holy Prophet (pbuh).” It is well-known that the Caliph Omar wanted to punish men who misused the Quranic provisions for giving talaq. He, therefore, said that those who divorced their wives for frivolous reasons and then wanted to reconcile could do so only after the women had undergone halala. It is, of course, a tragic irony that his pronouncement, in fact, punished the victim of the talaq rather than its perpetrator.
No Muslim country permits the unfettered usage of talaq-e-bidat. Most insist on the practice of talaq that becomes final only after the third pronouncement with a gap of 3 months between the first and the third so that there is adequate time for reconciliation and counseling. In India, the Shia community does not recognise talaq-e-bidat or halala. In fact, the model nikah nama (marriage contract) devised and widely used by Shia clergy lays down a definite procedure for divorce over several months and also strengthens women’s right to demand divorce.
The affidavit also defends polygamy and says that it is “a blessing not a curse for women”. Its contention is that polygamy prevents promiscuity. Of course, there is not an iota of evidence in support of this.
The Ahl-e-Hadees sect (Sunni) also does not recognise triple talaq in one sitting. Recently, important Barelvi clerics have also given an opinion (fatwa) that Muslim women can insist on including their right to ask for a divorce in their nikah namas. Many organisations of Muslim women and also women’s organisations fighting for equal rights of all women have been agitating for decades against the practices of triple talaq in one sitting, halala and polygamy. The last, though sanctioned by the Quran, is not an unqualified but a conditional right.
It is most unfortunate that the AIMPLB, in the affidavit that it has filed in the Supreme Court challenging its very right to ‘interfere’ in matters of Muslim Personal Law, has resorted to the most retrograde, untrue and patriarchal assertions. For example, it says, “Shariah grants the right to divorce to husband because men have greater power of decision-making. They are more likely to control emotions and not take a hasty decision”.
Further, in 78 (c) of its affidavit, the Board states, “Legal compulsions of time-consuming separation proceedings and expenses may deter him (the husband) from taking the legal course. In such instances, he may resort to illegal, criminal ways of murdering or burning her alive”.
Such statements are truly shocking, misleading and a justification for criminal behaviour. There are innumerable instances of talaq being pronounced for frivolous reasons and due to drunkenness. Since the Quran itself promotes a form of divorce that will take a few months, the very irresponsible resort to such false and provocative statements is most condemnable.
The affidavit also defends polygamy and says that it is “a blessing not a curse for women”. Its contention is that polygamy prevents promiscuity. Of course, there is not an iota of evidence in support of this. In fact, all the facts available show that the two have nothing to do with each other.
It is very interesting, that after having stated that the Supreme Court has no right to interfere with the interpretation and implementation of Muslim Personal Law, the Board goes on to state that the rights of Muslim women have been protected by the “Muslim Women (Protection of Rights on Divorce) Act 1986 which has been upheld by the Supreme Court”.
Finally, the Board gives away the truth regarding its own character by stating in para 46 of its affidavit, “India is a patriarchal society, and therefore personal laws of all communities are aligned with the patriarchal notion…” In other words, its interpretation of Personal Laws has little to do with religious scriptures or with the concept of justice and everything to do with strengthening patriarchy.
It is important to note that the AIMPLB’s intervention in the court has come in for strong criticism and outright condemnation from very large numbers of Muslim intellectuals, jurists, commentators and community leaders. Women’s organisations of all kinds have been unanimous in their condemnation. This is something that is not reported widely in the media which finds it more convenient to concentrate on the projection of the AIMPLB as the ‘true’ representative of Muslim opinion.
The CPI (M) is committed to the struggle for equal rights of all women. We extend our full support to our brave Muslim sisters who are displaying tremendous courage in challenging patriarchal norms and interpretations. We believe that the Supreme Court and the judiciary generally has not only the right but also the duty to see that constitutional provisions guaranteeing the equal rights of all citizens are used to protect the rights of women of all communities.
The final word comes from none other than Shayara Bano herself. She says, “Shah Bano got a ruling in her favour from the Supreme Court but it was later overturned by the government, denying divorced Muslim women their right to maintenance. Had her case been a success, it would have been one battle less for us.”
The writer is former president, All India Democratic Women's Association (AIDWA).