The Union government’s plan to bring in a new law to end triple talaq is nothing but interference in Shariah law, the All India Muslim Personal Law Board (AIMPLB) has stated in a press release. The statement adds that the proposed law is in violation of the right to freedom of religion guaranteed to minorities under the Indian constitution.

Issued by the secretary and spokesman of the Board, Maulana Khalid Saifullah Rahmani, the statement said, “Talaq is a religious issue. Once divorced a woman becomes haraam (prohibited) for her husband. Making triple talaq (instant divorce) illegal will mean that the divorced couple will be forced to stay in the relationship. This will put them in a situation which according to Islam is a grave sin, amounting to illicit sex”.

Muslim and other secular women’s organizations contest the Board’s claim that divorce is a religious issue. They are all in favour of a law declaring the practice of instant triple talaq as illegal. However, many suspect the BJP-led NDA government’s motive behind the ‘hasty’ move and are in principle opposed to criminalization of any aspect of family law.  

The Board’s statement said triple talaq is a highly undesirable practice, a misuse of the provision in Shariah law on divorce. However, misuse of a law cannot be a pretext for doing away with the law itself. Citing the provision for declaration of an Emergency under certain circumstances, the statement said the provision was misused in 1975. Despite this, even the opposition which was fiercely opposed to the imposition of Emergency did not scrap the Constitutional after coming to power.

The Board itself is opposed to the misuse of the triple talaq provision and is running a countrywide campaign against the practice, the statement added.  
“In principle we fully support the enactment of a law that makes triple talaq or instant divorce illegal. However, we strongly suspect the intention and the haste with which the government wants to bring in the new legislation,” said Hasina Khan of the Bebaak Collective, an umbrella body of several women’s groups.

The Collective challenges the government’s claim that its decision to move a Bill now is based on feedback that triple talaq is continuing across the country even after being set aside by the Supreme Court in August. “What monitoring have they done? Which Muslim women’s groups have they consulted? In which state? No space has been given for consultation with Muslim women’s organizations,” Khan told Sabrang India.

In view of the above, the Bebaak Collective is deeply suspicious of the government’s proposed move, doubly so in view of the talk of criminalizing the triple talaq practice. “We are in principle opposed to criminalizing any aspect of family law for any community. Marital relations are after all a civil matter.”

The Bebaak Collective is equally opposed to the stand of the All India Muslim Personal Law Board that talaq is a religious issue. “The Board is nothing but an empty balloon without credibility. They are using the legitimate fear the community has of the BJP/RSS to raise the religion bogey”, said Khan.

While the CPM-affiliated All India Democratic Women’s Association (AIDWA) too is generally suspicious of the BJP-led central government’s intent, it has decided to wait for the government’s draft before responding.

“Let the government come out with its draft. Let’s see what it has and we will respond accordingly,” AIDWA general secretary, Mariam Dhawale told Sabrang India.
As for the Board’s views on triple talaq, Dhawale said her organization has consistently opposed the practice and has actively helped individual Muslim women victim’s fight for justice. “In fact, the Board’s position is self-contradictory. It legitimizes triple talaq even while it considers it to be a repugnant practice”, said Dhawale.

The Bharatiya Muslim Mahila Andolan (BMMA) has reportedly been meeting Parliamentarians from different parties to canvass support for a law aimed at comprehensive codification of Muslim Personal Law just as personal laws of other communities is codified. Meanwhile, it reportedly supports the enactment of a law making triple talaq illegal as a step in the right direction.  
 

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BMMA Demonstration in Mumbai. Photo credit: DNA

Instant triple talaq, which is a Muslim man’s right to divorce his wife unilaterally in one sitting is now history. The highest court of the country has ruled it as unconstitutional and as violative of the right to equality. Understandably, there is a sense of jubilation among all those Muslim men and women who campaigned against the practice of instant triple Talaq.

Organizations like Bhartiya Muslim Mahila Andolan (BMMA) and scores of other Muslim women must be congratulated for having a sustained campaign on the issue for such a long time and having faced numerous difficulties not just from different governments but also from the leaders of the Muslim community. From being called as agents of the Hindutva brigade to being dubbed as not Muslim enough, these women have bravely fought prejudices and acerbic taunts from members of their own community and stood steadfast in their belief that it is high time the Muslim personal law be reformed.

It is interesting to note that voices to reform the Muslim law on divorce has a much older genealogy than what is normally conceded. Way back in 1920s, the All India Muslim Ladies Conference, in one of its annual conferences had raised the issue of instant triple talaq. Their argument then was similar to the argument that Muslim women’s organizations are making today.

What has been declared illegal is just instant triple talaq, not the system of unilateral divorce as practiced by Muslims.

The All India Muslim Ladies Conference was the first women’s organization to campaign against oral triple talaq and laid down rules according to what they believed was the correct Quranic practice of divorce. They drew up a model nikahnama (marital contract) which laid down the rules of divorce. Men had to give a valid reason for divorcing their wives. There would be provisions for maintenance made in case the divorce became effective. Moreover, they argued that the nikahnama gave limitless power to women to dictate terms and conditions to the prospective groom. And only when the groom accepts in writing that he would be fulfilling those demands that the nikah would take place.

One clause in the nikahnama was that in case the husband takes another wife without the permission of the wife, then the earlier marriage will automatically get dissolved. Thus there were conditions to make polygamy difficult and exceptional within Muslim households.

The appeal of the Muslims Ladies Conference was extremely limited as it remained confined to the feudal and elite circles of the ‘enlightened’ Muslim gentry of Bhopal and Hyderabad. It never became a mass phenomenon. Partition gave a death blow to this initiative as most of the campaigners became Pakistanis in an instant and there was hardly any leadership left for Indian Muslim women.

It must be said to the credit of BMMA that for the first time it made the issue of reforming personal laws into a Muslim mass phenomenon.

Organizations like the BMMA draw upon such an older tradition of Muslim reform. But it must be said to the credit of BMMA that for the first time it made the issue of reforming personal laws into a Muslim mass phenomenon. Thus when the Supreme Court declared that instant triple talaq was invalid, it was responding to the demands raised by millions of Muslim women in India.

For the first time perhaps, we have a genuine mass movement among Muslim women which is desirous of change and making demands by virtue of being citizens of this country. The question is whether they will stop at instant triple talaq or will it just be one of the many campaigns that women’s group will take up. Already organizations like the BMMA are arguing that they next step is a campaign for comprehensive gender just law for Muslims in this country. They are perhaps right in calling this as a victory but a very small one at that.

They are right. It took seventy years for this country to outlaw a system of divorce which was manifestly anti-women and drove them to destitution. And what has been declared illegal is just instant triple talaq, not the system of unilateral divorce as practiced by Muslims. In divorce proceedings, Muslim men continue to have the right of unilateral divorce and there is a need to make it more gender just.

Similarly, there should be a campaign to make polygamy illegal as it is an abhorrence in today’s times. Will the BMMA and other such organizations be willing to take up the challenge? Only time will tell. But going by their commitment and enthusiasm it is reasonable to suggest that they will not stop at this victory.

It is rather unfortunate that despite the Supreme Court ruling there are sections within the Muslims who think it is a conspiracy to defame their religion and they confuse Muslim personal law with divine law. The statement of the Jamiat Ulema e Hind suggesting that they would not follow Supreme Court verdict only goes to show how much faith they have in the Indian judiciary.

For them, as for a majority of religious fundamentalists, the matter is very simple: if the courts rule in their favour then they would hail the verdict, but if the law goes against then, the judiciary becomes a pawn in the hands of ‘vested interests’. People like Mahmood Madani bring shame to the Muslim community and people like him are responsible for making the community a sitting target for the Hindu Right wing forces who quickly announce to the world that Muslims do not believe in the Indian nation, far less the judiciary.

Unfortunately people like Madani have disproportionate clout within the Muslim community. Reports coming in after the verdict suggest that the petitioners and those campaigning against instant triple talaq are facing social boycott from within their families and the larger community. This tells us about the pitiable state of the community which it seems wants to be in a perpetual state of backwardness and are alright to be members of a community which is accused of being warped on issues of gender justice.

It is astonishing to see the silence of the left and liberals on the issue of social reform amongst Muslims.

The fight must go on. Till the time organizations like All India Muslim Personal Law Board become redundant within the Muslim society. This fight has to be taken forward by all right thinking Muslim men and women. But it is also important to underline that Muslim women’s organizations like the BMMA must be at the forefront of such a struggle. It is heartening to note that a number of progressive Muslim men have supported the BMMA, but their efforts should be limited to supporting these movements and not becoming the leaders of the movement.

Last but not the least, it is astonishing to see the silence of the left and liberals on the issue of social reform amongst Muslims. At least they should have come out in open support of organizations like the BMMA. Their muted response goes a long way to suggest that their ideas about Islam and Muslims are completely hazy and warped. Silently, Muslim women have marched together to claim their just space as Indian citizens. Triple talaq is just one stop in their long march to demolish the many citadels of male privilege legitimated through a misogynistic reading of Islam.

Republished with permission from New Age Islam.
 

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Image: Reuters
 

In 1985, when the Supreme Court’s judgement in the Shah Bano case granted divorced Muslim women the right to alimony, the All India Muslim Personal Law Board, a non-governmental organisation that professes to represent Indian Muslims in all matters of their faith, shouted “Islam is under threat”.

In response, Muslim women rallied to fight for their rights, especially in matters of marriage and divorce, and several women’s groups emerged from the community over the next three decades. Bebaak Collective, Awaz-e-Niswaan, Sahiyar, Muslim Mahila Manch, Pehchan, Muhim, Parvaaz Sangathan, and, more recently, Bebaak Collective Sahiyar articulated a radical politics, at one with secular and feminist causes.

So, when, in 2016, Shayara Bano petitioned the Supreme Court to challenge the constitutionality of the practices of triple talaq, nikah halala and polygamy, these groups joined in the cause. It was a demonstration of the support system created by the women’s movement over the past three decades, something that was not available to Shah Bano.

A reminder that our struggle was far from over came when the Muslim Personal Law Board challenged Shayara Bano’s petition. They have also launched a signature campaign to canvass support. They contend that the rights of Muslim women must be claimed “within the community” and accuse women’s groups of being handmaidens of majoritarian politics.

The argument is disingenuous. While the threat of majoritarian politics is indeed real – witness the ruling establishment’s incessant rhetoric on triple talaq at the exclusion of all other issues facing women in this country – the relationship between gender justice and minority rights is too complex to be reduced to “for or against the community” dichotomy.
 

Bebaak Collective, Aawaz-e-Niswaan, Muhim, Pehchan and other such groups working with the community across states raise women’s issues without regard to their religious affiliation, whether it is violence inflicted on them during communal riots or discrimination in everyday life while accessing their basic rights to education, livelihood, shelter and healthcare.

Today, however, even progressive forces want us to lie low lest our cause, especially the abolition of triple talaq, halala and polygamy, is appropriated by the Hindutva forces in power. “Ab yeh mahol nahin hai, jab right-wing sarkar satta mein hai,” we are advised. We are seen as rallying with the BJP government to secure the rights of Muslim women.

This trivialises our three-decade-long struggle for equality and justice and generates fierce opposition to even rudimentary reforms. It also provides an excuse for the ruling dispensation to beat the women’s movement with the old whip of the Uniform Civil Code.
The code is unjustly presented as a response to Muslim women’s demand for gender equality although for this government it is just a dog whistle for communal polarisation. We not only oppose appropriation of the cause of Muslim women but also seek the accountability of the state.

Let me state our position in no uncertain terms: when we demand that triple talaq be declared unconstitutional, we do not seek criminalisation of individual Muslim men who exercise the prerogative of unilateral decision-making in the process of ending a matrimonial relationship, or delegitimisation of any marriage. As petitioners supporting Shayara Bano’s appeal, we propose that the apex court frame guidelines (as was done with Vishaka Guidelines to prevent sexual harassment) to ensure, essentially, that a divorce is not unilaterally decided by the man. Also, mechanisms must be developed to enforce such guidelines so that every affected woman does not have to run to the higher judiciary in every case. A support system for such women is also called for.

Systems of injustice

A community’s relationship with the state poses several challenges for the assertion of gender justice. For example, Khap Panchayat and Sharia Court are community institutions that are strengthened by state patronage. They establish systems of oppression – ban on inter-caste, inter-faith marriages; atrocities against Dalits, including sexual violence against Dalit women; fatwas to control women’s mobility and sexuality – yet they routinely enjoy state impunity.

The Muslim women’s movement has challenged both the oppression of the Indian state and the conservative forces within the community. Often, the state has refused to engage with them on the pretext that their matters are “internal to the community”, thereby strengthening the very forces in the community that are responsible for their situation.

To these people, the self-styled arbiters of the community’s interests, the issue of women’s rights is always marginal, as we have found from years of interacting with them. They are concerned more about controlling what we wear, what we read and who we live with. Indeed, even some Muslim women’s rights activists have told us that livelihood concerns – roti, kapda, makan – should take precedence over all others. In effect, they invisiblise concerns of mobility, sexuality rights, multiple family visions and diverse living practices of Muslim women.

The women’s movement is one of solidarity, and, indeed, various women’s groups are working together on many causes. Sadly, though, there is a division on the question of religion, which has come to be the definitive marker of the Muslim community.

Can we not accommodate multiple identities within the community, even those that do not practise religion in normative ways? Can the question of women’s rights not be imagined outside religion?

As petitioners supporting Shayara Bano’s appeal, we do not believe that abolishing triple talaq will resolve all issues faced by Muslim women. But we must claim this opportunity to raise the concerns of matrimonial and inheritance rights, as well as the right to property. If the court does declare triple talaq unconstitutional, then it falls to the state to ensure equal citizenship of Muslim women beyond the realm of Personal Law. It is self-evident that in a country as vast and diverse as India, neither Muslim women’s identity nor their living reality is homogenous. It will, thus, be futile to rest all hopes of their emancipation on a legal remedy.

Hasina Khan is a feminist activist based in Mumbai. Her women’s rights organisation Bebaak Collective is one of the petitioners in Shayara Bano’s triple talaq case. Geeta Thatra and Roshni Rina helped write this article.

This article was first published on Scroll.in

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The trustees asked for two weeks time to act on the verdict. Take four weeks, the apex court ruled while warning that failure to implement the order after that will amount to contempt of court.

It may be recalled that Noorjehan Safia Niaz and Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA) had petitioned the Bombay High Court after all BMMA’s efforts to persuade the dargah’s trustees to roll back their regressive decision in 2011-12. Overnight, they restricted women’s access to the dargah compound, stopped them from going up to the mazaar (sanctum sanctorum) of the Sufi saint.

Following an earlier order of the Bombay High in early April, directing the Maharashtra government and police to ensure women were not restricted from entering the sanctum sanctorum of the Shani Shingnapur and all other temples in the state, secular-minded individuals and groups among Muslims and others from Mumbai had launched the ‘Haji Ali Sab ke liye’ forum in support of the right of women to equal access on par with men to all sacred space.
 

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The judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 years ago, but which its male custodians have denied to them through the centuries.

A delicious irony underlies yesterday’s verdict of the Bombay High Court upholding women’s right to enter the sanctum sanctorum (mazaar) at the iconic Haji Ali dargah in Worli, Mumbai. What’s more, the court has ruled that both the trustees of the dargah and the state administration were duty bound to ensure women’s exercise of their constitutional right without any hurdles, or fear of sexual harassment.

The irony, not for the first time, lies in this: the judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 hundred years ago, but which its male custodians have denied to women through the centuries.

The judgement is to stay suspended for six weeks to enable the trustees to appeal in the Supreme Court. Given the solid grounds on which the verdict rests, it is doubtful if they have much of a chance and it’s safe to predict that today’s verdict will have a cascading effect. What holds true for the Haji Ali dargah must also be so for other dargahs which similarly restrict women’s access to the sanctum sanctorum.

Sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

More significantly, sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

Sometime during 2011-12 the trustees of the Haji Ali Dargah Trust unilaterally decided to restrict women’s entry into the sanctum sanctorum of the Sufi saint. (There is no such restriction on women of any religion at the dargah of the most revered saint in the Indian sub-continent: ‘Gharib Nawaz’ Khwaja Moinuddin Chisti in Ajmer and numerous other shrines). The co-convenors of the Bhartiya Muslim Mahila Andolan (BMMA) – Noorjehan Safia Niaz and Zakia Soman — filed a PIL in the Bombay High Court in 2015 after the trustees refused to see reason.

In court, the trustees cited four main reasons in defense of their decision to restrict women’s entry. One, they had recently learnt that women’s proximity to the sanctum sanctorum was a “grave sin” according to the Shariah. Two, Article 26 of the Indian Constitution confers on the Trust a fundamental right to manage its own affairs in the matter of religion. Three, the restrictions were in the interest of safety and security of women. Four, at no point of time in the past were women permitted “to enter the close proximity of the tomb”.   

The fourth argument ended in a self-goal. An affidavit filed by the trustees had admitted that restrictions were imposed after they were “made to realize through various Muslim clergy’s (sic) and teachers that the act of allowing the women inside the sanctum of the dargah is a sin”. As to the third plea, the court observed that ban is no way of ensuring the safety and security of women. Instead, the trust and the state are obliged to take effective measures and ensure the same.

The court noted that none of the Quranic verses and Ahadith (sayings of the Prophet) relied upon by the trustees supported the trustees’ “grave sin” thesis. If anything, some of them actually endorsed the petitioners’ contentions and the court therefore saw no need to refer to the many Quranic verses which the petitioners had cited in support of their plea.

Effectively then, petitioners’ invocation of their fundamental rights under Article 14 (Equality before law, equal protection of law), Article 15 (Prohibition of discrimination between citizens) and Article 25 (Right to freedom of religion) was pitted against the trustees’ claim of their fundamental right under Article 26 (Freedom to manage religious affairs). 

Citing a series of Supreme Court judgments, the Bombay High Court pointed out that only “essential and integral parts of a religion” enjoy the protection of Article 26. Noting that the Haji Ali Dargah Trust was a public charitable trust, the court concluded: “Once a public character is attached to a place of worship, all the rigours of Articles 14, 15 and 25 would come into play and the Trust cannot justify its decision solely based on a misreading of Article 26. The Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion' under Article 26… In fact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution”.
 
It’s a great day for all Indians who subscribe to the view that women of all religions have the right to equal access to sacred space, and that culture and tradition cannot be invoked to override the constitutional principle of non-discrimination and gender parity.

This article was first published on The Quint.
 

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The fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue.

The tussle between All India Muslim Personal Law Board (AIMPLB) and many liberal and progressive Muslims as well as Muslim women’s organisations, viz. the Bharatiya Muslim Mahila Andolan (BMMA) on the issue of abolition of triple talaq, has brought to the fore an issue which has plagued the Muslim community, especially the women, since ages.

The issue has also been fuelled by Shayara Bano’s case, in which a woman after facing 15 years of domestic violence was divorced by her husband, sending her a talaqnama by post. The issue immediately caught media limelight and parallels started being drawn with the similar rhyming case of Shah Bano of 1985, in which a 62-year-old, mother of five children, divorced from her husband, won the right to alimony in the Supreme Court.

However, the then Congress government under pressure of orthodox ulema passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, which diluted the Supreme Court judgment and denied even the destitute Muslim divorcees the right to alimony. It was a classic example of placating the orthodox community leaders for the sake of reaping political dividends through community support, which gave tooth to non-representative and decrepit organizations like AIMPLB. The AIMPLB was instrumental in pressuring the government to enact the Muslim Women’s Act in 1986 as well as the Dissolution of Muslim Marriages Act, during the pre-independence period.

It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The recent incidents have reignited the need for codification of Muslim Personal Law today. In fact, what is known as Muslim Personal Law today was known either as Anglo-Mohammedan Law during the British period or simply as Mohammedan Law and was enacted by the British. But after independence the terminology was changed and the Anglo Mohammedan Law, in order to wipe out its colonial stamp, came to be re-named as Muslim Personal Law.

However, its contents did not change. Thus, the change in terminology was oriented towards wiping out the colonial stamp and did not in any way restructure the contents in tune with the changed social milieu. Women, Muslim and non-Muslim, did not have a say in religious matters during the colonial times. However, 68 years post independence things have changed and women today across communities are becoming vociferous against misogynist traditions introduced/preserved by orthodox religious leaders which suited the patriarchal setup.

The recent tussle between the AIMPLB and BMMA can be seen in this light. It needs to be reiterated that the political victory won by the AIMPLB in the Shah Bano case, whereby it was successful in diluting the Supreme Court’s judgment through political intervention, not just provided it legitimacy as a legal body of the Muslim community, but also the privilege to counter Supreme Court jurisdiction in the garb of religious injunctions which cannot be violated by courts. This has set a bad precedent and privilege which the AIMPLB is not willing to forego.

Whenever a case against triple talaq comes into court the AIMPLB takes it as an intrusion in its legal domain. It pleads that the courts have no jurisdiction to adjudicate over Muslim Personal law since it is inextricably interwoven with the religion of Islam, which is based on Quranic injunctions and is not a law enacted by Parliament. However, what the AIMPLB misses out completely are the legal precedents over the past 15 years, whereby triple talaq has been invalidated by courts time and again. 

The AIMPLB has decided to contest Shayara Bano case and oppose any move to scrap triple talaq. Muslim leaders like the MIM leader and MP from Hyderabad Asaduddin Owaisi have also thrown their weight behind the AIMPLB move saying that the AIMPLB must the hire best lawyers to put up a strong case before the Supreme Court. But what escapes the attention of these self-proclaimed leaders and custodians of the Muslim community are the legal precedents involving triple talaq.

It is either their silence out of convenience or mischievous ignorance or insincere desire to project and maintain themselves as custodians of the community, due to which they are not willing to accept the reality that there are numerous legal precedents in the past 15 years which have rejected the marital dissolution plea through triple talaq mechanism.

The Supreme Court, in a landmark ruling in Shamim Ara v State of UP (2002) invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq and the liability of the husband to pay maintenance to his wife does not come to an end through such communication. The court held that in order to be valid, talaq has to be pronounced as per Quranic injunctions.

In 2002 again, the full bench of the Bombay High Court in Dagdu Pathan v Rahimbi Pathan case held that a Muslim husband cannot repudiate the marriage at will. The Quranic injunctions were invoked during the hearing of this case as well, with the court ruling that all stages – conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings between parties – are required to be proved when the wife disputes the fact of talaq before a competent court. A mere statement in writing or oral disposition before the court regarding talaq sometime in the past is not sufficient to prove the fact of divorce.

The Bombay High Court, in Najmunbee v Sk Sikander Sk Rahman (2004), reiterated this position and held that a Muslim husband cannot repudiate his marriage at will. He has to prove supporting reasons for his decision and it cannot be based on a mere whim. Muslim law mandates pre-divorce reconciliation between parties through the intervention of arbitrators.

In Dilshad Begaum Ahmadkhan Pathan v Ahmadkhan Hanifkhan Pathan (2007) case, the Bombay High Court held that though the husband had proven (in the sessions court) that he had pronounced talaq it was not valid and legal as the additional requirements like, the reasons for divorce, the appointment of arbitrators and conciliation proceedings to bring about reconciliation, had not been proved.

In Riaz Fatima v Mohd Sharif (2007) case, the husband had pleaded that since he had divorced his wife she was not entitled to maintenance. He produced the photocopy of a fatwa obtained by him regarding the validity of the talaq. Rejecting the husband’s contention, the magistrate’s court had awarded maintenance to the wife and child. The Sessions court however overruled this decision and set aside the order of maintenance.

In an appeal, the Delhi High Court laid down clear guidelines regarding the process of proving talaq: (a) divorce must have a reasonable cause and the husband has to provide evidence showing the cause which compelled him to divorce; (b) he has to prove that the word talaq was proclaimed thrice in the presence of a witness or in a letter, (c) he has to prove that an attempt at reconciliation has been made prior to divorce; and (d) there has to be proof of payment of meher and observance of iddat (the period of waiting by a woman after divorce or the spouse’s death before she can marry again).

The court, turning down the plea of the husband stated that in the present case there was insufficient evidence to prove that the husband had pronounced talaq on his wife. A mere statement before the court by the husband, stating that he divorced his wife on a particular day, would not suffice. All the prerequisites have to be fulfilled before a Muslim husband can divorce his wife.

If the AIMPLB was oblivious of all the above legal precedents, they should have at least heeded the recent ruling of Bombay High Court in Shakil Ahmad Sheikh v Vahida Shakil Sheikh (2016) case whereby the court reaffirmed that the plea taken by the husband that he had given talaq to his wife at an earlier date does not amount to the dissolution of marriage, unless the talaq is duly proved and was given by following the conditions precedent, namely, arbitration/ reconciliation and valid reasons.

The mere existence of a document like a talaqnama or the utterance of the word talaq thrice would not in any way dissolve the marriage if it is not preceded by arbitration, reconciliation, valid reasons for giving divorce, observance of iddat and payment of mehr, and the same are required to be pleaded and proved before the court.

In the wake of aforementioned observances, it can be safely concluded that the fight against triple talaq is not just a fight of Indian Muslim women against non-representative and decrepit organisations like AIMPLB, which claims to be the sovereign body on Muslim Personal Law without having proper knowledge about Quranic injunctions and legal precedents on triple talaq. It is also a fight of all liberal and progressive Muslims against the demagoguery of community leaders who raise a false alarm of Islam in danger and thereby communalise the whole issue so as to reap political dividends.

It is also a fight against the insidiousness of media which projects every single case of triple talaq as a case of Islamic law vs. secular law, the archaic vs. modern and the oppressive vs. the civilised, while conveniently overlooking the legal precedents against it.

References:
Agnes, F. (2016): “Muslim Women's Rights and Media Coverage”, Economic and Political Weekly, Vol LI No 22, pp. 13-16.
Ali, Arshad (2016): “Triple talaq is a non-issue, brought up to implement uniform civil code: AIMPLB”, The Indian Express.
Anusaya, Ila S. (2016): “Muslim Women Do Not Want Triple Talaq Banned, Says AIMPLB”, The Wire.
Anusaya, Ila S. (2016): “Women’s Rights Activists Rally in Support of Shayara Bano”, The Wire.
Engineer, Asghar A. (2004): “Abolishing Triple Talaq. What next?” Economic and Political Weekly, pp 3093-3094.
Rizvi, A. (2016): “The Indian Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents”, The Wire.
Sanyal, A (2016): “Muslim Women Want Triple Talaq Out, 50,000 Sign Petition”, NDTV.
Siddiqui, Parwez I., (2016): “Triple Talaq: Muslim Law Board to contest Shayara Bano case in Supreme Court”, The Times of India.

(The writer is a research scholar at the Central University of Jharkhand, Ranchi).

The post Triple Talaq: Time for the Ulema to Wake Up and Smell the Coffee appeared first on SabrangIndia.

BMMA, the letter addressed to NCW chairperson, Dr Lalitha Kumaramanglam says, “is confident that you will support the legitimate and democratic demands of Muslim women. We also hope that you will be the ambassador for Muslim womens’ demand for justice at various governmental platforms”. The organisation  is simultaneously contacting women’s commissions in different states for their “support and solidarity”.

A press statement issued by BMMA says that alongside its ongoing national campaign for more signatures, it continues to compile more and more cases across India of women victims of the “inhuman practice” of instant divorce.

BMMA’s earlier report, ‘Seeking Justice within Family’, based on a nationwide study found that 92% of Muslim women want an end to this practice which destroys their life and the lives of their children. Coupled with oral divorce, BMMA is also seeking abolishing of the “heinous practice of nikah halala”. (Nikah halala means that once a husband divorces his wife, the two can remarry only if she marries another man, the marriage is consummated and her new husband divorces her).

BMMA has been running a campaign in the past few years to educate Muslim women and men that there is no sanction for instant/oral divorce in the Quran. “In fact the Quranic method requires a 90 day process of dialogue, reconciliation and mediation before divorce takes place”.

Despite the clear Quranic injunction, women continue to be divorced unilaterally, rendered completely helpless as they have no say in the arbitrary process. BMMA bemoans the fact that “Qazis approve this malpractice and support the Muslim men to divorce their wife in this un-Quranic manner. Qazis also encourage nikah halala and even offer themselves as temporary husbands”.

BMMA is demanding a legal prohibition to unilateral divorce – triple talaq and nikah halala. It is also demanding that the mediation process must be made mandatory as per the provisions of the Quran.  

“Muslim women are citizens of India and all Constitutional safeguards are applicable to her. The Muslim personal law must be reformed in such a manner that all discriminatory practices are struck down as illegal and Muslim women’s Constitutional and Quranic rights are safeguarded”, BMMA has demanded.

With substantial presence in 13 states across the country, BMMA already has over one lakh members.
 

The post 50,000 Signatures and Counting: Muslims Support BMMA’s Campaign to Abolish Triple Talaq appeared first on SabrangIndia.

Photo: Courtesy DNA

The self-appointed custodians of Islam are doing the greatest disservice to Islam and Muslims, women especially

In our understanding the values of kindness, compassion and justice are the core values enshrined in the Quran. Clearly, hegemony is not an Islamic value and yet the experiences we have undergone in the course of our work in the last ten years give rise to certain fundamental questions.

Why are so many Muslims, particularly men, so hegemonic in their thinking? Why do most of them seem to think that reading, understanding and interpreting of the Quran is a sole male prerogative? They seem to think that Allah created men and women as unequal. This view of an unjust Allah is not acceptable to us and therein lies the crux of the Bharatiya Muslim Mahila Andolan’s (BMMA) existence.

Globally, eminent scholars such as the late professor Fatima Mernissi, Dr Amina Wadud, Dr Khalid Masood, Dr Ziba Mir Hosseini and several more have dedicated their lives to reading and interpreting the Quran to highlight that Allah is just and fair. Volumes have been written on the tawhidic framework about Allah as a uniting, harmonizing force. But the fact remains that these scholarly works that bring out the essence of Islam as a religion of peace and justice remain unheeded and are not referred to by large mass of people in Muslim societies.

Unfortunately, the dominant thought processes that control Muslim societies remain patriarchal. The traditions and practices followed are often in direct violation of the Quranic spirit of justice. The stranglehold of patriarchal hegemony in India and in South Asia has got exacerbated by the arrival of Salafi-Wahhabi ideologies that now threaten to become the mainstream in Muslim society. This ideology has led to further strengthening of the hegemony of patriarchal mindsets in our community. Practices such as triple talaq and halala are manifestations of this trend. But at the core of this thinking is a patriarchal mindset of male superiority and domination.

We want to refer here to the dominant common sense prevalent in the Indian Muslim community about men being superior to women. Islam gave equal rights to women over 1400 years ago; but have they been translated into reality? So long as the dominant common sense about male superiority dictates the mindsets and behavior of Muslims these rights will remain on paper.

In what has been a masterstroke the patriarchal forces have succeeded in attributing this subjugation and injustice to Islam through misinterpretations, distortions and lies. They have invented fiction, half-truths and references that equate women with cattle and allow the men to get away with the worst kind of atrocities against them. In the process they not only violate the basic tenets of Islam, they also help demonisation and stereotyping of the whole community.

They treat their wives, sisters, mothers and daughters unjustly and, even if unwittingly, help the Hindutva campaigns. The self-appointed custodians of Islam do greatest disservice to Muslims and to Islam. It is a pity that even some so-called educated Muslims blindly support these custodians thanks to the common sense about male superiority in Islam that they suffer from.

Why has there been no concerted effort so far to challenge these patriarchal custodians? Why is it that the Muslim women themselves had to initiate a challenge to these hegemonic elements? Why are the wise Muslim men not supporting Muslim women’s’ struggle for Quranic rights of justice and equality? Or are they forever going to allow the conservative clerics to keep deciding for all 17 crore of us?

Why has there been no concerted effort so far to challenge these patriarchal custodians? Why is it that the Muslim women themselves had to initiate a challenge to these hegemonic elements? Why are the wise Muslim men not supporting Muslim women’s’ struggle for Quranic rights of justice and equality? Or are they forever going to allow the conservative clerics to keep deciding for all 17 crore of us? Are they not aware that Islam has no place for intermediaries between Allah and believers? And lastly, what legitimacy do they have to question Muslim women who stand up and fight for their Quranic rights?

We will recount here some direct evidence about the dominant Indian Muslim male thinking being hegemonic and in violation of Islamic values of justice and fairness. This is not to say that there are no exceptional and courageous Muslim men; all of us know many of them in our respective spheres. But as a whole, it is the patriarchal conservative thought process that dominates our conduct.

All of us Muslim women had come together in the aftermath of the communal violence of Gujarat in 2002 to unequivocally oppose the communal forces and to demand rehabilitation and justice for the survivors. Our work at the time was focused around fighting discrimination on communal basis and demanding equal citizenship for the largest minority.
As we began to know and learn about each other spread across different parts of the country we could at once identify a lot of common ground and the need for coming together as a national entity. We were all bold and gutsy women who had fought with their own adverse circumstances and were struggling for equal citizenship in our respective locations and local contexts.

After informal interactions spanning over nearly two years we realised that we shared a commonality of purpose and had a shared worldview. We felt that Indian Muslims were poor and backward despite the Constitutional guarantees. We agreed that we were denied our Quranic rights thanks to the nexus between the patriarchal forces in our community and various governments. We decided that we need to change the situation.
 
We were clear that women needed to take up the leadership of the Muslim community in India for so-called male leadership was responsible for the all-round failure. We formed the Bharatiya Muslim Mahila Andolan in January 2007. Our name was a very deliberated and considered exercise. We felt that we needed a name that spells out what we stood for. We were as Bharatiya as anyone else and we would not offer apologies for being Muslim and Bharatiya. Nobody can appropriate the word Bharatiya and exclude others.

We put together our worldview in the form of our mission document where we clearly stated that we believe in the values of justice, equality, pluralism and democracy enshrined in the Constitution of India. We also clearly stated that we saw no contradiction between these values and the Quranic values. We set forth to work on attaining our Quranic as well as citizenship rights. We clearly stated our solidarity with all those who are working for justice and equality in the country and the world.

We also stated that we believe in secularism, religious harmony and peaceful co-existence as opposed to communalism and intolerance. We wanted to develop an alternative voice of the Muslim community that was rooted in pluralism and mutual respect between communities. And we were clear that it should be a feminine voice as the regressive male voices had failed to achieve anything for Indian Muslims in sixty years after 1947.

Nobody asks where these scholars are when a triple talaq takes place in their respective cities or mohallas! Nobody talks about the scholars’ moral obligation to act when practices like halala are found rampant in our society! Another common experience is being told by a male member of a largely Muslim audience: your views are ok but why are you not dressed in Islamic way? Pray what is the Islamic way, we ask?

We embarked on a journey towards our mission focusing on the citizenship rights of our excluded community. A campaign on Sachar Committee’s findings and implementation of the recommendations was taken up in the initial years nationally and in various states. As soon as we found some bearings and women started becoming our members in large members we were faced with the reality of legal discrimination against Muslim women.

Across all states women began coming to us saying: I was divorced orally; I was thrown out after triple talaq, where do I go with my children; I received a post card from my husband divorcing me; I was away at my parents’ home for two months and learnt that my husband has married another woman; my husband divorced me and now wants me back; the qazi is asking me to undergo halala (meaning, marry and consummate marriage with another man, divorce him, only then remarry your former husband) etc etc.

The sad reality of male hegemony that rules the roost in our community ostensibly in the name of Islam dawned on us! We could not have asked the women to just go away! We realised that the long-term solution lay in the codification of the Muslim personal law based on the Quranic tenets. And this brought us into direct confrontation with the established patriarchal forces who had always spoken in the name of religion. We are not attempting here to give a summary of our work; anyone interested reader can visit our website. (www.bmmaindia.com).

Every public meeting, every seminar, every program of ours takes us on a familiar pattern of responses from Muslim males. We have women participating in large numbers, giving their testimonies, their inputs on a range of issues such as Muslim personal law, government schemes, communal harmony, different happenings in society etc. Above all, they give us their trust.

But invariably at the end of the program a Muslim male stands up and begins teaching us about Islam as he perceives it. He takes it upon himself, in spite of his apparent ignorance of the issue, to teach us about Islamic tenets. He thinks it is his prerogative since he represents the male species in a room full of women! Often such wise men beat a retreat when ordinary women start retorting with evidence and confidence.

We see another interesting response pattern at different public hearings across the country of women who have been orally divorced. After hearing heart-rending testimonies of their suffering, when there is an open discussion towards the end a male would stand up. He would say in a satiric, authoritative or sometimes angry tone that all this talk about triple talaq is uncalled for since triple talaq is un-Islamic!

Then, some of us would ask: why then does it take place in our society? Why do we not have a law against it? To this he would have no answers. Our women leaders regularly get invited to speak at various fora. It is a common occurrence, especially if the gathering has large numbers of Muslim male participants, to be told that your views are ok but we need to consult scholars. Obviously, in their opinion a scholar is someone with grey hair and maybe a beard!

Nobody asks where these scholars are when a triple talaq takes place in their respective cities or mohallas! Nobody talks about the scholars’ moral obligation to act when practices like halala are found rampant in our society! Another common experience is being told by a male member of a largely Muslim audience: your views are ok but why are you not dressed in Islamic way? Pray what is the Islamic way, we ask, only to receive stock replies. Again we see male hegemony at play trying to hide behind Islamic dress this time!
The problem seems to be that these men are not used to the presence of empowered women in their midst, leave alone their opinions. And they take refuge behind an imagined version of Islam for they have no real arguments.

Sometimes some well-educated persons who are sympathetic to our work end up suggesting: your draft law on Muslim Personal Law is very good; why don’t you send it to some ulema for their approval? This is gross ignorance to say the least and in the ultimate analysis only strengthens the stranglehold of patriarchy.

In recent days when the Supreme Court took suo motu cognisance of our demands for reform in Muslim Personal Law, a well-known Muslim lawyer pleaded with the court to allow the male clerics to be party to the petition. We wonder why a Muslim lawyer of such eminence would think it fit to rope in the clerics for this. After all, is he not aware that the conservative clerics are the impediment to any solution? In fact they are not just part of the problem; they are the problem!

This section has stonewalled any talk of reform in Muslim Personal Law since 1947. In 1986 they raised a hue and cry over a pittance of Rs 125 being provided to 65-year-old Shah Bano as maintenance post divorce on the ground that this would put Islam and Muslims in danger! And yet if large sections of educated Muslims think that the male orthodoxy is the sole custodian of Islam there is something wrong here. This is rank patriarchal hegemony being passed off as Islam.  
 

The post How the Ulema are Perpetuating Male Hegemony in the Name of Islam appeared first on SabrangIndia.

Why the Bharatiya Muslim Mahila Andolan is throwing one challenge after another at the ulema's male-oriented version of 'Islam’

Bharatiya Muslim Mahila Andolan (BMMA) recently announced the formation of Darul Uloom Niswaan [DUN], a centre for Islamic learning and theology for women. As part of this initiative, DUN has begun the training of women qazis.
 
The initiative began in Jaipur with a group of 30 Muslim women who embarked on this journey. This training is the first in the series of a year-long process which will include learnings on theology, history of Islam, Constitution of India, principles and values of Islam, schools of jurisprudence etc. Further training modules through the year will focus on many other important topics like gender equality in Islam, family laws in different Muslim countries etc.
 
The need to educate Muslim women to become qazis came from the experience of more than two decades. The most common experience and observation was that the Islamic justice system was biased towards men. All qazis are men and tend to take sides with men and it is the women who suffer the most in case of family disputes or marital discords.
 
The need was also fueled by the fact that a qazi plays an important role in society. They not only solemnise marriages but also validate divorce. BMMA has observed in its last ten years of work across different states that there is widespread practice of triple talaq and halala in spite of there being no Quranic sanction for either.
 
Experience suggests that majority of qazis validate unilateral triple divorce. Some qazis play a dubious role in furthering barbaric practices such as halala. BMMA’s two research reports bear testimony to how Muslim women suffer owing to these un-Islamic practices. We feel that more and more women qazis who are trained about Islamic teachings and gender justice principles is the need of the hour. Besides, there is no bar on women qazis as per the Quran. It was felt that women qazis can provide a solution to these ills which afflict our society.
 
A lot of legal problems faced by Muslim women today can be prevented if the qazi plays his/her role with responsibility. Women qazis trained by DUN will ensure that underage marriages do not take place, a man is not able to take a second wife in the subsistence of the first, the residence proof of the man and his source of income is ascertained before he enters into a marriage contract.
 
Women qazis will ensure that the mehr amount is received by the bride at the time of nikaah and that both the parties are entering into the marriage alliance out of their free will and not by force or fraud. Even a male qazi can take these preventive measures but which are not being taken resulting in a lot of hardship for the women.
 
Male qazis approve of oral divorce and in fact often encourage Muslim men to unilaterally divorce their wives. They also approve of muta marriages where young girls are duped into entering temporary alliances. This malaise which has rendered so many Muslim women homeless and destitute will be curbed if women who are trained in Islamic values of gender equality and gender justice become qazis. 
 
The idea of DUN was born following such experiences.

The Quranic injunctions and the Indian democratic framework together provide an enabling environment to right the historic wrongs done to women and thereby to the whole community by the patriarchal forces who have appointed themselves sole arbiters of religious knowledge and practice
 
While the larger problems of legal discrimination and neglect by the state and Muslim community about the legal problems of Muslim women will take a longer time to resolve, the immediate solution is to train women to take the reins in their hands. BMMA is advocating for the codification of the Muslim Personal Law, but in order to have an immediate remedy to the issues, the idea of a woman qazi is more implementable.

It has its own share of challenges and may be opposed by the patriarchal forces who have appointed themselves custodians of Islam just as they oppose the idea of codification of personal law. But the training of women qazis is an easily achievable goal since training of individuals who are willing to practice as qazis is possible.

It is important to have a fair representation of women in religious and legal matters pertaining to family life, marriage, custody of children, property distribution, divorce etc. Looking at the current scenario where men not only have an upper hand in these matters, they have been party to violations of Quranic injunctions pertaining to marriage and divorce by upholding triple talaq and halala. It is time to evolve remedies for these wrongs.

BMMA in 2013 also launched the first of its kind ‘Aurton ki Shariah Adalat’ (Womens’ shariah court) in Mumbai and DIndigul (Tamil Nadu) with the aim of providing legal aid and guidance to women who get no support from the shariah courts run by Muslim men. Since then, every year close to 500 Muslim women have benefitted from these women-led courts. This indicates a dire need for Muslim women to become justice providers.
 
Again unprecedented in the history of Muslims in India is the formulation of a draft ‘Muslim Family Law’ finalized by BMMA based on the Quranic values of gender justice and the Constitutional values of equality. Lack of codified law for Muslims in India is one of the major reasons for the legal oppression of Muslim women who are orally and unilaterally divorced by their husbands on their own whim and who face consequences of heinous practices like muta, underage marriages and halala.
 
The Quranic injunctions and the Indian democratic framework together provide an enabling environment to right the historic wrongs done to women and thereby to the whole community by the patriarchal forces who have appointed themselves sole arbiters of religious knowledge and practice. Equipped with a draft of a gender just law, strengthened with a structure like ‘Aurton ki Shariah Adalat’ and facilitating the emergence of women qazis, BMMA has attempted to bring about a structural change in the way the community functions as far as legal issues are concerned.

These efforts are part of the larger wave of Islamic feminism emerging in Islamic/Muslim societies where women are leading in the creation of religious knowledge by reclaiming religious spaces so far controlled and manipulated by men, specifically the clergy. BMMA leaders continuously draw inspiration and support from the writings of Islamic scholars across the world who are interpreting the holy text for upholding gender justice and human rights of all.
 
DUN is part of the larger feminist movement in the Islamic world initiated by women activists and scholars who have taken upon themselves the task of presenting to the world a humane, just and peaceful face of Islam which today has been usurped by the conservative and dogmatic religious bodies who do not believe in gender equality and human rights.
 
Muslim women no longer want to be confined as receivers of religious knowledge but also its creators. The need to re-read, re-translate, re-explain and re-interpret the Quran has resulted in a completely different version of Islamic jurisprudence which is not only pro-women but also pro- human rights, liberty, equality and justice for all.
 
It reaffirms our faith that a better and a more humane Muslim world is about to emerge and Muslim women have been, and will continue to lead this change.

Zakia Soman and Noorjehan Safia Niaz are co-founders, BMMA and co-trustees, DUN.
 

The post Entering a forbidden terrain: Women Qazis, ‘Auraton ki Shariah Adalat’, what next? appeared first on SabrangIndia.

Sometime ago, Vimochana, a Bengaluru-based forum for women’s rights organised an 'Aapa ki Adalat' with six Muslim women who had gruesome accounts to narrate about being tortured by their husbands. They had earlier been to various shariah courts in various mosques but were unable to tell their tale as these were shameful accounts of sexual torture which they found difficult to narrate before men.
 
Vimochana, headed by Ms. Donna Fernandes, Madhu Bhushan, Shakuni etc gathered some leading Muslim social activists and made a few Muslim men like us sit behind a curtain to listen to their woes. Vimochana encouraged the Muslim community to have their own organisation to listen to, counsel and rehabilitate Muslim women who have been driven out of their homes, are locked in marital disputes, have been victims of domestic violence, or at the hands of alcoholic husbands.
 
So we helped Sajida Aapa in Bangalore to set up 'Aasra Home for Women' where there is a facility for keeping such women for three months. We get cases of Muslim women from police stations who ask us to settle these disputes within the community rather than taking to courts, police and jails. Sometime such women call Sajida Aapa and Aasra from other states which we are not able to accommodate. 
 
Recently Parveen Taj, 42 who was released from Mysore jail after passing a 12-year sentence (she had murdered her husband due to constant torture from that rascal), went knocking at the Jail's door to take her back as society was not accepting her. She was turned away from her brother's house. Her daughter had been married and settled in life and two sons had been taken away by a cousin. Other members of the house had moved to another location in order to get away from the infamy in the small town of Srirangapatna. The kind jailer approached a Hindu community run Nari Niketan to accommodate her as she could not be taken back inside prison.

The world judges us by our social, economic, intellectual standing among communities, not by claims that are mostly bogus, fake, false and farcical. 
 
We never tire of proclaiming that Islam is a religion of peace, justice and equality. But do we Muslims ever think about the plight of such women? Aasra is in talks with Niketan to see that Parveen Taj is rehabilitated. I wonder if we have such a facility anywhere in the country. I wish the answer is a ‘yes’ from somewhere.  Our clerics are totally unaware and unconcerned about what happens to women in our society. They feel everything is, will be, hunky dory if they are women accept the subordination of their men. This of course suits men who happily follow the clerics.    
 
It is easy to state in the Supreme Court that men and women are equal in Islam but difficult to work in a society where women are totally subjugated due to their low education, no economic clout and social pressure not to speak up against their men. Speeches are capable of going global. But practical action is always local and hardly gets any limelight. 
 
We must drop all these pretences to being supreme among all religions, best among all communities and bearers of the pristine Divine message. The world judges us by our social, economic, intellectual standing among communities, not by claims that are mostly bogus, fake, false and farcical. 
 
MA Siraj is a Bengaluru based journalist and activist.

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