On March 4, 2024, the Supreme Court in Shazia Aman Khan & Ors vs The State of Orissa & Others (hereinafter ‘Shazia’) while setting aside an order passed by the Orissa High Court altering the custody of a minor girl child observed that “she cannot be treated as a chattel at the age of 14 years”. This is a very important and much needed judgment in terms of setting the record straight on jurisprudence on custody between Muslim parties in India.

In Shazia, the Supreme Court essentially made two important points. Firstly, unlike the Orissa High Court which observed that “in absence of adoption, the custody of the minor child is liable to be termed as illegal detention”, the Supreme Court did not just make the fine distinction between adoption, custody, and guardianship, but also noted that the three concepts (or definitions) are neither same nor interchangeable.

Secondly, in matters of custody, besides welfare, the Apex Court underscored, “Stability of the child is also of paramount consideration”. These two observations by the Apex Court, significantly, didn’t just further the principles of natural justice, but are also in conformity with the mandate of and jurisprudence under the Guardians and Wards Act, 1890. The glaring error that the Supreme Court identified in the High Court order, might have occurred on two counts. This could be either due to a misreading of these legal concepts (adoption, custody and guardianship) and their relationship to the stance of the Muslim Personal Law Board (MPLB) or may have been rendered in sheer haste in keenly framing the issue.

Instead of framing the issue in the case on hand as one that had to determine custody, the High Court ventured into the unchartered territory of determining adoption, which is not permissible in the existing misinterpretation of Islamic law. Else, how would we read the historical case of the adoption of a boy by the Prophet –wherein the custody remained with the Prophet in accordance with the wish of the eight-year-old child? The relevant Quranic verse(s) does not prohibit adoption per se. It only prohibits erasure of the biological paternity of the child.

In light of the above proposition, I would like to state that the practice of either substituting adoption with custody or framing the issue as one of custody in the language of adoption to unsettle custody –often committed by the Indian judiciary– has wreaked havoc in the lives of families.

Though, in Shazia, specific judges of the Apex Court- a polyvocal court– identified the issues and dealt with them accordingly. However, every case (and parties) is not as fortunate as those in the case of Shazia. I will come to the havoc component triggered by unsettling the custody of children in subsequent section by analysing –again–a custody judgment of 2022. .

Before moving forward, the following crucial facts of Shazia need to be re-capped to put things in perspective:

With mutual consent, the biological mother had given away her three month’ old baby girl (born in 2010, in Ranchi) to her own sister. After a few years, a series of police complaints and financial blackmailing of the foster parents by the biological parents followed. Surveying the facts of the cases of custody suggests that there is almost a pattern. In April 2023, the Orissa High Court ruled that the 13-year-old girl should be dislocated, de-stabilized and notwithstanding the psychological trauma the girl would undergo, should “be returned back to the biological parents”.

This was challenged in the Supreme Court, where the HC order was stayed in June 2023. Subsequently, the Supreme Court on March 4, 2024 gave its 19-page verdict setting aside the HC order. The verdict records that the Supreme Court had interacted with the child on December 12, 2023, and “found the child to be quite intelligent, who could understand her welfare” (Para 17, Page 17). Further, noted the Apex Court, “We find that the welfare of the child lies with her custody (being) with the [foster parents]. This is coupled with the fact that even she also wishes to live there. Keeping in view her age at present, she is capable of forming an opinion in that regard. She was quite categorical in that regard when we interacted with her.”

On March 4, 2024, the Supreme Court did set aside this particular order of the Orissa High Court order, arguing how unsettling the alteration of custody of the child would be and not serve the child’s welfare. The same Supreme Court, however, in an almost identical case, on October 17, 2022, had refused to interfere with the Allahabad High Court order of September 21, 2022, that had inalienably altered custody.

The Supreme Court had stated that the court found no reason to interfere, and dislocated and de-stabilised the almost nine-year-old girl. In fact, in compassion to the Orissa case, the UP case had an added point in its favour given the fact that the trial court had not de-stabilised the girl’s custody. The trial court, on May 25, 2022, had interacted with the girl (over 8 years of age) and had written a five-page observation on the issue, noting the responses of the girl to the judge’s questions. Yet, neither the High Court nor the Supreme Court felt it necessary (then, in 2022) to interview the baby and assess her, before pronouncing its verdict. A comprehensive critiques of the verdict have been done in two columns, in Citizens for Justice and Peace (March 2, 2023), (where one can read the entire texts of the verdicts of the trial court as well as of the Allahabad High Court), and also in OutlookIndia.Com, January 19, 2023.

What comes out of the Allahabad HC verdict dated 21 Sept 2022 is that there was possibly an intellectual laziness on the part of the judiciary which didn’t labour or pursue the matter to make a distinction between adoption, custody and guardianship, which the Apex Court does in Shazia. The judiciary also refused to make itself aware about: (a) the historical fact that the Prophet’s adopted son continued to remain in his custody; (b) Quranic prohibition is against erasure of biological paternity, not against the adoption, per se.

Besides legal inconsistency in the application of jurisprudence and the failure on the part of the higher judiciary to differentiate between adoption, custody and guardianship, is there any other elephant in the room which obstructs or stymies the objective of paramount welfare of the children as incorporated in the Guardians and Wards Act, 1890? Shedding light on the politics of All India Muslim Personal Law Board (founded in April 1973) in relation to custody in particular and to the issue of Muslim Personal Laws in general shall help us understand the question posed.

Law portals such LiveLaw and Bar and Bench reported the Shazia judgment prominently on March 5, 2024. The Times of India reported it on March 7, 2024. However, the “Muslim-identity-driven” portals such as Clarionindia.net, Indiatomorrow.net, Muslimmirror.com, Maktoobmedia.com, etc., did not carry any news on this verdict.

After all, the All India Muslim Personal Law Board (AIMPLB), owes its foundation in (Hyderabad, April 1973), to the Muslim agitations against the Indira Gandhi led government which had amended some of the laws. These had to do more with Hindu laws. Even then, Muslims protested against these, assuming that the amendments tinkered with the Muslim Personal Law, particularly those pertaining to adoption of a child.

A convention was held in Bombay on December 27, 1972, at which they decided to form the AIMPLB. In 1986 too, it was these Muslim agitators that had succeeded in nullifying the Supreme Court verdict of April 23, 1985 (the famed Shah Bano case), through Parliamentary legislation. Even in 2017-2018, to retain the un-Quranic Instant Triple Talaq (ITT), the AIMPLB and other such theological bodies dedicated to save the Shariah had launched various kinds of agitations such as Deen Bachao-Desh Bachao Rally in Patna (April 15, 2018) and across the country (see Rediff.Com columns, July 12, 2018; April 21, 2018; April 15, 2018; March 15, 2018; and The Wire. In columns, dated, March 29, 2018; February 12, 2018).

One therefore wonders why those sections of Indian Muslims and their leadership are, unlike what they did in 1972 and in 1985, refraining from resorting to street demonstrations, now (2024), when the Supreme Court has ruled in favour of the custody with the foster parents.

Have they, by now, become less conservative on the Shariat issues? Do they fear the current dispensation? Or have they really come to understand the distinction between adoption, custody and guardianship?

It is a generally held view that the Muslim Personal Law prohibits adoption. However, reality is, as said above: Quranic prohibition is only against erasure of biological paternity of the adopted child. Custody is quite well settled in favour of the child’s wish. The Prophet Muhammad had adopted a son, Zayd. Based on his wish, his custody continued with the Prophet. But this is an interpretation not clarified in the Shariat Acts of 1937 and 1939, and this is an opinion not adequately popularised.

Recent lower court orders (latestlaws.com, February 05, 2024) on succession/inheritance have disregarded the Shariat Act 1937. For instance, a lower court of Delhi, in its order on February 3, 2024 said that a son adopted by a Muslim couple would inherit 100% of the assets of the foster parents; any individual belonging to the Muslim community can adopt a child without making a declaration under the Shariat Act.”

As per this ruling, any such adoption shall be governed by the general law and not by the Muslim Personal Law. The said child would become the legitimate child of his adoptive parents”, the court said. In another instance of March 2023, Sheena Shukkur, 51, an academic and head of the law department at Kannur University, and her lawyer husband C. Shukkur, 53, registered their marriage under the Special Marriages Act at the sub-registrar’s office in Hosdurg in Kerala’s Kasaragod district in the presence of their family, friends and three daughters. This was “to ensure that their three daughters automatically inherit their assets in entirety, which would not have been possible under the Muslim personal law” (The Telegraph, March 9, 2023). The couple has got no son.

The Supreme Court verdict dated March 4, 2024 however, in a way, still accepts the supremacy of the existing interpretation of Mohammedan law. My submission is that the Supreme Court must point out the deep flaws by way of clarification in the Muslim Personal law, viz.,

1. Quran doesn’t prohibit “adoption” per se. What it prohibits is the erasure of biological paternity, means, the baby must know the biological paternity);
2. Custody is very much established. Zayd [Zaid] continued in the Prophet’s custody even after the so-called prohibition of “adoption”. Yet, the AIMPLB refuses to reform along these lines;
3. The Courts must take a position after questioning the biological parents on the fact that, if they are going by personal law, why did you give away your baby? Once this act was done, the implication is that they intended to be regulated by secular law.
4. On the above three points of law, even the legal researchers and academics are silent or ambivalent. Students of the law are rarely taught about such misinterpretations and juridical inconsistencies.
5. Why, does it often happen that it is after five-six years of such an act (handing over of the child) does such obvious blackmailing & litigation begin? No court ever holds the biological parents accountable for such blackmailing.

Against this backdrop, a fresh reading of the Allahabad High Court judgment of September 2022 which was later upheld by the Apex Court in October 2022 may be in order. In light of the judgment in Shazia of March 2024, it can be strongly argued that the Supreme Court must re-consider its decision dated October 2022, even suo moto by perhaps by invoking Article 142 of the Constitution of India. This would involve a re-look at its 2022 order in view of the differentiation provided in Shazia between adoption, custody, and guardianship. That the child was not interviewed by the Apex Court is another very strong reason to look into its October 2022 judgment. Doing so, I firmly believe, would not just help in the realization of complete justice, but will also align this unfortunate blot with the extant jurisprudence.

(The author is presently pursuing LLM at SOAS, University of London as Marang Gomke Scholar)

Related:

Where the doctrine of parens patraie was invoked to unsettle custody: Adoption

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Image courtesy: Online Jaibhim

The Bhartiya Janata Party (BJP) and Sangh Parivar are celebrating the instant triple talaq judgment of the Supreme Court of India, claiming credit for liberating Muslim women from the male dominating Muslim society. But there is no evidence that they took any initiative for empowering Hindu women. On the contrary they took every possible step to stall a major initiative taken by our first Prime Minister Jawaharlal Nahru and the country’s first Law Minister Dr. BR Ambedkar.

It may be recalled that a draft Hindu Code Bill was introduced in the Constituent Assembly which incorporated several measures to empower Hindu women, including right to divorce. The moment they came to know the contents of the bill, RSS with the cooperation of other like-minded organisations launched a vicious campaign against Nehru and Ambedkar.

What that campaign was and how they maligned both great leaders is described by eminent historian Ram Chandra Guha in his book, India After Gandhi. Relevant contents from the book are being reproduced here:
 

Courtesy: Ummid.com
 

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A delegation of Jamiat Ulama-e Hind (Mahmood Madani group) met the Prime Minister Narendra Modi on Tuesday (May 9) at the Prime Minister's official residence. The large delegation included some persons from outside Jamiat also like Prof. Akhtarul Wasey (VC, Maulana Azad University, Jodhpur), Dr. Zahir I Kazi (President of Anjuman-i-Islam, Mumbai and PA Inamdar (Chairman, Azam Campus, Pune).

According to a press release issued by the Jamiat, the meeting lasted for about two hours. Later, talking to media, Mahmood Madani, General Secretary of his group of Jamiat, described the meeting as "satisfactory and positive". He said, "the PM heard us passionately and agreed with our concerns."

Madani further said, "Our meeting with the PM was mainly for opening the door of mutual communication and closer understanding that would lead to further opportunities and all of us will be able to play our role in the development of our country." Madani added that he asked the Prime Minister to create a mechanism for further dialogue between the PM and the Indian Muslim community.

This was the first such high-level meeting of leaders of the Indian Muslim community with Prime Minister Narendra Modi who came to power three years ago but was shunned until now by the Muslim community. A few days earlier Mahmood Madani group had said that it has asked for time to meet the PM.

Soon after Modi's coming to power, at least three high-level meetings were held by Muslim community leaders including one called by Maulana Mahmood Madani himself in his Masjid Abdun Nabi office in Delhi, in which it was decided unanimously that no Muslim group will meet Modi who was held responsible not only for Gujarat 2002 riots, fake encounters but also for creating in the country an atmosphere of hate against the Muslim community.

The leaders had decided that should a need arise to meet the PM, it should be a joint delegation that will go to meet him. Today’s delegation did not include any leader of leading Indian Muslim organizations like Muslim Majlis-e Mushawarat, Jamaat-e Islami Hind and Markazi Jamiat Ahl-e Hadees or institutions like Muslim Personal Law Board or Darul Uloom Deoband.

By meeting the PM today with only a Jamiat delegation, Mahmood Madani group has broken the Muslim ranks.  
 

Maulana Madni and others who met PM speak to the media

Following is the full unedited text of the press release issued Jamiat Ulama-e Hind after this meeting:

Delegation of Jamiat Ulama-i-Hind consisting of a galaxy of religious scholars, Educationists and Social leaders led by Maulana Qari Mohammad Usman Mansurpuri, President Jamiat Ulama-i-Hind met Prime Minister Narender Modi today at his residence in New Delhi. The delegation discussed with the PM several issues including the current communal situation of the country.

Jamiat Ulama-i-Hind president Maulana Qari Usman and its general secretary Maulana Mahmood Madani while speaking to the media after conclusion of the meeting that continued for about two hours, said that the meeting was satisfactory and positive. Maulana Mahmood Madani said the PM heard us passionately and agreed with our concerns. He said, PM also appreciated our stand that the divorce was internal issue of the Muslim community and the community itself should take reformative steps.

Our meeting with the PM was mainly for opening the door of mutual communication and closer understanding that would lead to further opportunities and all of us will be able to play our role in the development of our country. We requested from Honorable PM to create mechanism for access to him or his appointee for continuing dialogue and closer understanding so that Muslim community is assured of its role and share in the development of our country. Maulana Madani
said PM was apprehensive about growing hatred in the name of cow protection and he assured us that he would not let this trend prosper.

On this occasion, the delegation submitted a memorandum which text is hereunder.

To the Hon’ble Prime Minister of India

We are very grateful to you that you granted this opportunity to the delegation of Jamiat Ulama-i-Hind consisting of a galaxy of religious scholars, educationists and social leaders led by Maulana Qari Mohammad Usman Mansurpuri, President Jamiat Ulama-i-Hind to meet their Prime Minister.

The basic objective of the meeting is to establish closer interaction between the government and the Muslim community on issues of larger national interest which has been highlighted by the Honorable Prime  Minister himself through the slogans like “Sab ka Sath Sab ka Vikas and Meri Sarkar Sabki Sarkar’’. We are of the opinion that most important national issues can be solved through mutual dialogue.

Supremacy of Rule of Law is must for the security, integrity and development of our country. No one is above the law. It must be administered with total impartiality and equality. Your recent reprimand to private groups taking law in their hands and launching murderous attacks for salvaging cows has sent the correct message but much has to be done by law enforcing agencies and the state administration.

The recent incidents of manslaughter on the pretext of cow slaughter have sent shock waves of terror and fear through Muslim, Dalit and the weakest sections of the society. We are afraid that the fear and despondence if unchecked could prove highly counterproductive.

There is no doubt that terrorism, fueled and perpetuated by enemy forces tops our agenda with reference to our national security, peace and stability. There have been attempts to communalise even this issue. We have always condemned such attempt and consistently campaigned at the national level in cooperation with all communities against terrorism as well as religious bigotry and extremism.

We are happy to note that in the context of tarnishing the image of Islam and Muslim globally you made the Indian Muslim communities hold their head high by projecting Indian Muslim community’s ideology of peaceful Islam with reference to India’s tradition of Islamic Sufism and their aversion to extremist ideology.

We appreciate this on your part and on our part reiterate our commitment to enable India lead counter terrorism campaign by example. However, for controlling the menace of terrorism, the law must be enforced effectively with total impartiality. Every caution should be exercised to ensure that no innocent person is victimized.

Muslim community has issues and grievances just like any other community which have to be dealt with as per the exigency but this shouldn't undermine their aspiration to be equal stake holder. These issues should be deliberated upon and solved amicably so that none of the communities have a feeling of discrimination on the basis of religion and they feel their duty and share in the country’s development equally which tallies with identity of our beloved country.

The delegation requests the Honorable PM to create mechanism for access to him or his appointee for continuing dialogue and closer understanding so that Muslim community is assured of its role and share in the development of our country.

We once again, thank you and hope that door of mutual communication and closer understanding that has been opened today, will lead to further opportunities and all of us will be able to play our role in the development of our country.

With highest regards

The delegation includes

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The court observed that all forms of discrimination against women violate fundamental freedoms and human rights.

"Under the garb of personal law rights of citizens protected by the Constitution cannot be infringed", ruled Justice Surya Prakash Kesarwani.

Also read: Talaq, talaq, talaq, is mockery of Islam and cruelty against women (renowned Maulana)

The court also noted that marriage in Islam is a contract which cannot be terminated unilaterally.

The high court’s observations were made while dismissing a petition filed by Aaqil Jamil from Varanasi. His wife had filed a criminal complaint alleging that he had tortured her for dowry and resorted to “talaq, talaq, talaq” when his demands were not met.

While passing the order, Justice Kesarwani observed that neither personal law nor the Constitution gives a husband the right to rescind the marriage contract orally or simply by a notification or ex-parte decision. Hence such a practice was “bad in law”.

Making a reference to the inalienable, integral and indivisible part of universal rights stipulated under the UN’s 1948 Declaration, Justice Kesarwani ruled that a woman cannot be divorced in a manner that fringes on her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life with dignity) of the Indian Constitution.

Also read: Triple Talaq is anti-Quran, anti-Constitution, anti-humane: Arif Mohammad Khan

Though apparently not related to the petition of Aaqil Jamil, Justice Kesarwani also held that nikaah halala was humiliating and against the dignity of a woman. Nikaah Halala is a shameful practice where a divorced woman may not remarry her husband unless she marries another man, the marriage is consummated, and then divorced.

 “No lady can be compelled to marry some other person in case she wants to remarry her husband after divorce. This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected under Article 21,” the judge said.  

Jamil had petitioned the high court seeking a quashing of the criminal complaint against him filed by his wife claiming he had already divorced her (through talaq-talaq-talaq) in 2015. In support of his contention, Jamil produced a fatwa from the mufti of Agra city to prove that the complaint was not tenable since he had already divorced her before her complaint. 

The post Triple talaq is a violation of a woman’s constitutional rights: Allahabad High Court appeared first on SabrangIndia.

Photos: Courtesy Scroll.
 

On May 11, more than a year after Shayara Bano sought a ban on the Muslim practice of triple talaq, drawing national and political attention to the issue, the Supreme Court bench will finally begin hearing petitions arguing for and against this form of instantaneous, unilateral divorce that can be pronounced only by men.

The movement against triple talaq was started by Muslim women’s organisations and women who felt wronged by the practice. But during the course of the year, politicians, clerics and the All India Muslim Personal Law Board, an NGO that claims to represent the community, have vociferously taken over the debate, in the name of protecting oppressed Muslim women.

But how are individual Muslim women – those who have received triple talaq – engaging with this high-pitched debate? Opponents of triple talaq tend to club all Muslim women as victims trapped by the patriarchy of Muslim personal laws. Defenders of triple talaq emphasise their Muslim identities while declaring, for instance, that 2.7 crore Muslim women do not want changes to Sharia law.

But is it fair to categorise all Muslim women as a homogenous entity? Scroll.in spoke to three women in Mumbai who had been affected by triple talaq and found that their perspectives on the divorce mechanism are varied, complex and often problematic.

All three women had arranged marriages and subsequently experienced extreme forms of domestic violence, but none of them sought divorce themselves. Their stories, in fact, are no different from those of many other domestic violence survivors in India and raise a crucial question: should one look at triple talaq without simultaneously confronting the deeper-rooted problems of gender-based violence and the societal attitudes that make women stay in abusive marriages?

‘Who made the Personal Law Board anyway?’

On the night of her wedding in September 2014, Gausiya Ahmed’s in-laws snatched away her mehr, the money paid to a Muslim bride by the groom. The dowry harassment began soon after, and on multiple occasions, Gausiya was almost beaten to death. Even though she was a Unani doctor, she was not allowed to work. She got pregnant, but the violence still didn’t stop.

“Throughout the pregnancy, they kept telling me that they would accept only a boy child,” said Gausiya, a petite 28-year-old from Bhiwandi, a town North of Mumbai. In August 2015, when Gausiya’s daughter was born, her husband stormed out of the hospital and never showed up again. Two months later, she received a divorce notice. “A lawyer came with a written notice saying ‘talaq’ three times, but I don’t accept this divorce,” she said. “It wasn’t even oral talaq, and anyway, how can he just wash his hands off his wife and child in one shot?”

Gausiya consulted several priests and mullas, who gave conflicting opinions on whether her divorce was valid. Outraged, Gausiya approached the police. “But when the police tried to tell my husband that triple talaq is invalid, his family brought Sharia books to defend themselves,” she said. It took two weeks of persistence for the police to finally file domestic violence and dowry harassment complaints. Her cases are still pending 18 months later.

Meanwhile, her husband has also filed for a civil divorce at the Family Court. “This is absurd because we never had a civil marriage to begin with, but it shows that even he is not convinced that the triple talaq he gave me is valid,” said Gausiya.

It is this confusion within the Muslim community that has convinced Gausiya about the need to ban triple talaq. “The Sharia is being misused and if mullas themselves disagree about its interpretations, then we women need to be under Indian law, not Sharia law,” she said.

The litigation against triple talaq has brought out the firebrand in Gausiya and she now declares that she does not accept the All India Muslim Personal Law Board. “Half the Muslim population does not accept the Board anymore,” she said. “Who made them the Board anyway? They just incite people and they don’t want women to get religious education, because if women knew all of this, they would never marry.”

All Gausiya wants, she said, are her basic rights as a wife and mother. If her divorce is deemed valid, she wants her husband to pay her a sufficient maintenance. If the Supreme Court strikes down triple talaq, she wants him to give Gausiya and her daughter a roof over their heads. “I know it is risky, but I don’t even mind living with him again,” she said.

For now, Gausiya is financially dependent on her younger sister, an engineer. And none of her three sisters plan to get married till the Supreme Court is out with its final verdict on triple talaq. “After my experience, they don’t trust Muslim men anymore, so they are waiting for some legal safeguards,” said Gausiya, seething with anger once again. “All those Muslim women who support the Personal Law Board’s stand on triple talaq – are they going to step out and give me a roof over my head?”

‘I don’t want a divorce – I still love him’

In the 20 years since her wedding, Zeenat Sheikh has lost count of the number of times she almost committed suicide. Each time, the thought of her two daughters held her back, but Zeenat squarely blames her husband for fragile mental condition.

In 1997, at the age of 19, Zeenat had an arranged marriage with a businessman and moved to Mumbai from her hometown in Kerala. Her husband imposed endless restrictions on her – she was not allowed to step out of the house or keep the windows open and received a beating if she ever argued – but it took years of physical and emotional trauma for Zeenat to realise that things were terribly wrong with her marriage.

“In the last six years, his violence grew particularly bad,” said Zeenat, now 40. “Then in 2014, he suddenly said, main tujhe talaq doonga – talaq, talaq, talaq.” I will divorce you, he had said. A distraught Zeenat rushed to a maulvi and was relieved to know she had been saved by grammar: the priest assured her that the talaq was invalid, since her husband had used the future tense.

After this episode, however, Zeenat’s condition worsened. “He now began to beat me like I wasn’t even human,” she said. In November 2016, after a particularly violent episode, Zeenat wrote a suicide note for her family and left the house. “But I couldn’t do it. I couldn’t kill myself, and instead spent three days on the streets or inside dargahs,” she said. “When they found me, the police tried to explain to me that this was my fault, that I should bear what happens at home. They told me to call the 103 helpline only if it happens again.”

Zeenat now found herself back home at the mercy of her husband. In December 2016, as he threw her to the ground and rained kicks on her, he carefully uttered triple talaq using the present tense. Three days later, he reaffirmed the oral divorce through a written talaqnama, which he sent to Zeenat on WhatsApp.

Enraged, Zeenat decided she had finally had enough. She yelled at the maulvi for writing the talaqnama without asking for her side of the story, went back to the police, secured an order restraining her husband from entering their house and is now doggedly pursuing a domestic violence case against him. It is the triple talaq, however, that worries Zeenat the most. At least two other maulvis – including one from the local office of the All India Muslim Personal Law Board – have assured her that her divorce is invalid, and she is praying for the Supreme Court to ban the practice.

Zeenat is clear that she doesn’t want a divorce, and lists three reasons for it. “First reason is that I love him,” she said. “My daughters don’t understand it, but I was married at 19 and have only lived with him. Besides, he cannot just pay me a little money and expect his responsibility to be over.” The third reason, Zeenat said, is society. “I don’t want people to point fingers at my girls and say that their mother got divorced after 20 years of marriage. It is a taboo.”

Despite this, Zeenat’s recent experience fighting the domestic violence case has made her see a downside to a ban on triple talaq. “I have met a Hindu woman who has been trying to get a divorce in court for years and she is actually envious of how quick our triple talaq is,” said Zeenat. “So maybe what we need is not an end to triple talaq, but some strong law that will make husbands scared of divorcing their wives.”

‘Believe in Sharia more than any court’

Like many wives in abusive marriages, Sabina Khan put up with her husband’s violence for two reasons: she had been taught from childhood that such conflicts were normal between married couples, and she believed that one day, he would change for the better.

A 25-year-old tuition teacher from Dharavi, Mumbai, Sabina had an arranged marriage in 2011 and a daughter two years later. In the first four years of their marriage, Sabina grew increasingly wary of the regular beatings and frequent divorce threats. “He never worked, never looked after our daughter and wanted sex all the time,” said Sabina. “I would tell him I am not a machine, but he often forced himself on me.”

Two years ago, during a bitter fight, her husband uttered talaq three times. When Sabina’s father confronted him, he “begged for forgiveness and claimed he had said it by mistake”. But Sabina’s family believes in the validity of triple talaq and refused to accept his sudden remorse. After that, her husband left the city after that and has not showed up since.

“But his family now claims that I am lying, that he never gave me an oral divorce and that they will not let me marry again,” said Sabina, who tried to file a police complaint against her missing husband in October 2016, but claims she received no support from the police.

Sabina has visited several muftis who have assured her of the validity of the oral talaq. But the ongoing Supreme Court case makes her nervous: if triple talaq is outlawed, she says, she would be bound to her husband again. “I believe in Islam and what the Sharia says is more important to me than what any court says,” said Sabina. “But now all I want is written proof of my divorce through a talaqnama, so that I am free to move on.”

The post Understanding Triple Talaq (and Domestic Violence) through the Stories of Three Muslim Women appeared first on SabrangIndia.

What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law.

The importance of Shayara’s case for women of all communities

While there has been a state of near hysteria over the issue of triple talaq in the media, no one is clear on the real importance of the case. While the media is flooded with stories of husbands giving unilateral talaq to their wives on the phone and by SMS, no one talks about the fact that women of all religious communities face domestic violence and that women are abandoned without notice. The fact is that inequality in what has come to be known as personal laws exists across all religious communities. Not a single law of any community or tribe is immune from the charge that it violates fundamental rights of women to equality. Agricultural land in many states notoriously is often not held by the daughters of the community.

We have only recently seen an agitation in Nagaland for the inclusion of women in municipal councils that failed. The demand was resisted on the ground that legislation could not interfere with tribal customs.

The Supreme Court in Madhu Kishwar & Ors v. State Of Bihar & Ors (1996 SCC 5 125) when confronted with the issue of whether tribal customs could be challenged on the ground that they violated fundamental rights dodged the issue by stating that: “For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self-restraint…under the circumstances it is not desirable to declare the customs of tribal
inhabitants as offending Articles 14, 15 and 21 of the Constitution…”

Similarly in Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149), the Supreme Court was asked to strike down Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. The court refused to do so and preferred instead to “read down” a blatantly discriminatory law that said that the father is the natural guardian of the children and it is after the death of the father that a mother becomes the natural guardian. The Supreme Court interpreted the provision to mean that in the absence of the father or when the father was not in charge of the affairs of the minor either due to an agreement between the two parents or if the father for any reason was not able to take care of the child, the mother would be the natural guardian even during the lifetime of the father. Personal laws have become an island within the Indian Constitution immune from any challenge on the ground that they violate the right to equality of women.

In the triple talaq case the Supreme Court is confronted with this question yet again and it remains to be seen if they will decide the question or dodge it by saying that Islam itself does not recognize triple talaq and hence, there is no need to decide the larger issue of whether personal laws are amenable to constitutional checks and challenges. What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law. Will the ruling party that is moving towards a Hindutva State, allow such a challenge is the question. For now the Union of India has committed itself to the challenge but may remain content with the striking down on the ground that it is un-Islamic as some groups have argued. There is a lot riding on this case, not just talaq. The issues are fundamental to constitutional gender justice for all women.
 
Impact of Triple Talaq
The undisputable impact of triple talaq is that it alters the civil status of a married woman in a unilateral manner, as it is the husband who pronounces a woman financially unstable if she is solely dependent on her husband’s income and is primarily responsible for the household chores. Such a woman may be driven to claim maintenance if the mehr (amount of monetary security usually determined at the time of marriage which is given to a Muslim woman at the time of divorce) she receives is nominal which most often it is. She may have to engage in legal battles for the custody of her children. It is ironic that the supporters of triple talaq claim that triple talaq cannot be a subject for adjudication before courts of law and shall continue to remain extra-judicial, but fail to notice that the consequences following triple talaq are adjudicated before courts of law.
 
Stand of the Jamiat Ulama-I-Hind
Legitimate claims, of violation of fundamental rights to equality, life and dignity of Shayara Bano and of several other women like Inayat and Tamana who have been thrown out of their matrimonial homes, left financially unstable, and cut off from seeing their children by means of triple talaq who are being represented through a collective voice of Bebaak Collective, are receiving backlash from conservative groups such as the Jamiat Ulama-I-Hind for taking the matter to court who are of the opinion that – “Part III of the Constitution does not touch upon the personal laws of the parties and therefore their constitutional validity cannot be questioned.”
 
Stand of the All India Muslim Personal Law Board
The All India Muslim Personal Law Board represented by Senior Advocates Kapil Sibal and Raju Ramchandran and several others reacted on similar lines taking the stand that– “(Muslim) personal laws cannot be challenged by the reason of fundamental rights” cautioning the Supreme Court not to interfere in the personal affairs of the Muslim community. The All India Muslim Personal Law Board in its written submissions to court states that: “it is clear that though pronouncement of talaq thrice at one go is undesirable but in view of the aforesaid verse of the Holy Quran, it is clear that three pronouncements, howsoever they may be made result in valid dissolution of marriage.”
 
Law Commission of India on a UCC & UP State Elections
Apart from responses and counter responses of parties to the court case, during the pendency of the matter before the Supreme Court of India, we also saw orchestrated debates on electronic media “liberate Muslim women” and no less than the Law Commission of India issued a questionnaire asking for Yes/No answers to the question “Are you aware that Article 44 of the Constitution of India provides that the State shall endeavor to secure for the citizens a Uniform Civil Code throughout the territory of India? Do you agree that the existing personal laws and customary practices need codification and would benefit the people?” In a well written letter some of us from the women’s movement asked the Law Commission of India to give us a draft of the so called code before we could answer the question, elementary to say the least.
Then came several election promises made by the BJP in Uttar Pradesh that they would end the practice of triple talaq and after the results we were told that Muslim women voted for the BJP as they wanted an end to triple talaq. It remains a mystery how the secret ballot cast by women became part of political propaganda.

Is the insistence on saptapadi (seven steps around the holy fire) among Hindus for a valid marriage being abolished by a Uniform Civil Code? Does polygamy exist only among Muslims or is there de facto polygamy among Hindus as well? Will marriage among all communities be secularized and be truly considered as “a civil union” and “a partnership of equals, and no longer one in which the wife must be the subservient” as suggested by the Verma Committee or are we focused only on the abolition of triple talaq among Muslims? If the latter is the case, the political agenda behind the government championing the cause of Muslim women falls under doubt.

This is not to suggest that formal inequality can continue to exist under the Indian Constitution but rather that all forms of inequality formal or de facto in all communities must be abolished. The fact is that Hindu Law contains the remnants of Manu’s Laws (an ancient sacred legal text followed by Hindus) and that too must change.
 
Bebaak Collective’s stand in distinction to the Union’s stand
Bebaak Collective issued a statement putting the issue squarely in a secular context against the stand of the All India Muslim Personal Law Board responding as follows:
“First, whether the practice of unilateral triple talaq is validated by religion or not is not our contention, rather it is gender discriminatory and epitomises patriarchal values and therefore must be abolished should be emphasized. Second, the belief that women lack decision making qualities dilutes the citizenship rights of Muslim women in India who have been exercising their electoral rights for more than sixty years now…It is no surprise that All India Muslim Personal Board has not progressed over the decades and reiterates the same position which reverberates the patriarchal conservative ideas of the community. However, we envision a gender just law for the community where women’s question of social security and rights promised by the Indian Constitution will be practised.”

Organizations like Bebaak Collective distinguish themselves from the ruling party in that they articulate the voice of secular Muslim women. They demand not just an end to triple talaq but also social welfare schemes for destitute women. We all know of the notorious problems with Section 125 of the Criminal Procedure Code, 1973 and the difficulty of recovering any money form a disappearing husband even when an order is passed for maintenance. Bebaak Collective demands better living conditions, the right to secular education and other benefits from the State for all women. Relief form triple talaq alone will not solve the problem, they want to negotiate for a more equal space for all women within the marriage, they demand and end to domestic violence.

Hasina Khan, founder of Bebaak Collective is of the view that:
“None of the personal laws are gender just. Even Muslim personal law is discriminatory and does not provide equal status to women. Muslim women are doubly oppressed; they witness violence of different forms. State must provide social security to Muslim women who are survivors of any form of violence and discriminations. The State must protect their right to livelihood and also provide community centers, compensations, stipend, library centers, legal aid or counseling sessions to help them with sustenance of their life. The State must provide job opportunities and all kinds of support including working women’s hostel, shelter homes and specialized skills which have market demand to the young women across all communities who can carry forward their life with dignity and independence…We have felt the need to focus on four key issues a) Right to Citizenship and equality, b) Social security, c) Emerging Right wing forces and d) Implementation of Sachar Committee Report… It is seen that a woman has lesser social security irrespective of her community or religious status, we must demand for all of them having emphasis on Muslim women….”

They argue that all personal laws are capable of being challenged on the ground that they violate fundamental rights regardless of whether they are based on religion or custom, are codified or un-codified.

Article 13 of the Indian Constitution states that “all laws in force” in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void and the State shall not make any “law” which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. Article 13 (3) defines the expression “law” to “include(s) any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law” and the expression “laws in force” to “include(s) laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.”

Bebaak Collective and CSS argue that all personal laws are “laws in force” and must meet the challenge of Article 13. The system of personal laws originated in British India prior to the enactment of the Indian Constitution. Right from Warren Hastings Plan of 1772, Maulvis and Pandits (religious priests) were assisting and advising the courts on disputes governed by Muslim and Hindu Laws. While today priests no longer advise the courts, the system of governing people of different religions by different laws continues till today.

The basic defining feature of any law is that it is binding on citizens and is recognized by the State as law and enforceable by the State. Personal laws are binding on citizens and even today are recognized and enforced by the State. The State has explicitly recognized personal laws in form of legislations for example, Muslim personal laws have been provided recognition through the Muslim Personal Laws (Shariat) Application Act 1937 and Hindu personal laws through various legislations such as Hindu Marriage Act, 1955, Hindu Succession Act 1956, the Hindu Minority and Guardianship Act 1956, the Hindu Adoptions and Maintenance Act 1956.

There is therefore no basis for the demand that the Supreme Court exercise judicial restraint in Shayara Bano’s petition.

The Bombay High Court vide a two-judge bench in the case of State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84) way back in 1952 while upholding the constitutional validity of Bombay Prevention of Hindu Bigamous Marriages Act, 1946 made an observation that the expression “personal law” has not been used in Article 13 and therefore the framers wanted to leave them outside the purview of Part III Fundamental Rights of the Constitution. Later, the Supreme Court in Krishna Singh v. Mathura Ahir (1981 3 SCC 689) while dealing with a case of succession rights of a mahant (ascetic) said: “Part III of the Constitution does not touch upon the personal laws of the parties”. This erroneous decision of 1952 is what the All India Muslim Personal Law Board relies on. Several learned authors have pointed out that no reasons have been provided for this observation made by the Bombay High Court and the Supreme Court. Moreover, in a subsequent judgment of C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami (1996 8 SCC 525) the Supreme Court has held: “Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest they become void under Art. 13 if they violate fundamental rights”.
 
Stand of Bhartiya Muslim Mahila Andolan (BMMA)
BMMA has taken the view that after the Delhi High Court case of Masroor Ahmed v. State (2008 103 DRJ 137), talaq-e-bidat/instantaneous triple talaq “has lost its instantaneous nature, as also its irrevocable nature. Thus, even when instantaneous talaq is pronounced it will not immediately effect divorce…courts in India have by a purely interpretative exercise held that talaq-e-bidat or instantaneous talaq is illegal and ineffective. If the same declaration is given by this Hon’ble Court by a process of interpretation of personal law, then the question of going into the constitutionality of personal law does not arise. In the matters pending before this Hon’ble Court in none of the cases the facts comprise of anything other than women being aggrieved by instantaneous talaq and therefore those issues are also academic.”
They argue for a minimalistic approach and request that the constitutional issue of whether personal laws are amenable to challenge and checks in courts not be decided.
 
Stand of the Union
The Union in its affidavit to the court seems to be supporting Shayara Bano’s petition when it states that “It is extremely significant to note that a large number of Muslim countries or countries with an overwhelmingly large Muslim population where Islam is the State religion, have undertaken reforms in this area and have regulated divorce law and polygamy”. But women’s groups are skeptical of a hidden Uniform Civil Code agenda that may be forming the basis of such support. In February before the U.P State elections, the Law Minister made a statement that “The government may take a major step to ban triple talaq.” No such step has been taken, instead the ball has been thrown into the Supreme Court and the Suprme Court itsef has chosen to give this case a priority hearing on the ground that “the rights of many persons will be affected”.
 
The real significance of the case: Are personal laws, regardless of which community, immune from constitutional challenge ?
The broader constitutional issue of importance is whether unlike any other laws that are amenable to constitutional challenge for being violative of rights to equality and dignity, are personal laws – be it of Hindus, Muslims, Parsis or Christians – immune from constitutional checks and can they continue to be practiced despite being discriminatory, patriarchal and against fundamental rights of women or any other person for that sake?
 
What Stand will the Supreme Court of India take ?
Shayara Bano’s petition has now been listed to be heard by a constitutional bench of five judges during the Supreme Court vacations in May. The reason being that the Chief Justice believes that “the matter is of substantial importance” and deserves undivided attention of the court. Only time will tell if the Supreme Court chooses to overrule the Narsu Appa Mali and Krishna Singh cases or chooses to exercise judicial restraint declaring instead that triple talaq in the form in which it is practiced is un Islamic leaving undecided whether personal laws can be challenged. If they do decide that personal laws can be challenged, it will have far reaching consequences for all women regardless of the religion they belong to and advance the goal of gender justice for all.
 
Courtesy: Indian Cultural Forum
 

The post Personal Laws of All Faiths Violate Principles of Gender Equality, Why then the Sole Focus Only on Triple Talaq? appeared first on SabrangIndia.

He talked about the growing economic disparity among Muslims and spoke for providing affirmative action to them. The government is deliberately targeting the community which is against the spirit of the constitution. Muslims need constitutional protection and all those who are speaking against secularism actually are working against Indian constitution.
 

 

Prof TK Ooman delivered a very thought provoking address and challenged the popular notion of nation state. He openly advocated that the state must not intervene in the cultural practices of diverse communities that live in India. He suggested mere constitutional provisions will never bring fraternity among citizens unless they learn to respect cultural diversity of the people. The government has no right to intrude into the personal affairs and cultural practices of communities.
 

 

Justice Ruma Pal, former judge of the Supreme Court spoke of the personal laws and suggested that changes must come from within from the community and efforts to make as uniform will not succeed. She suggested that Constitutional provisions will always defend women’s right when they are violated hence it will always override any personal laws when they are violated.
 

 

Justice KJ Sengupta, former Chief Justice of Hyderabad and now Lokayukta of Sikkim High Court asked people to work at the grassroots and think over the common issues. He also advised people to register their marriages under the Special Marriage Act, after Nikah as it will then protect women much more than anything else. Institute of Objective Studies Chairman Dr Manzoor Alam also spoke on the occasion.
 

 

In the Business Session presided over by Afjal Wani saw Prof SR Mondal speaking on knowledge Era, Ris society and Better Tomorrow: Global Challenges and local responses. Noted writer and activist Ram Puniyani spoke of the danger of the communal polarisation unleashed by the Sangh Parivar through creating biases and prejudices. We need to join hand to defeat the communal fascist forces. He said we must speak to counter the narrative being rumoured by the Sangh Parivar and it is time for all the political parties to join hands. Also it is important for the civil society organisations to work diligently together. He also said that technically our constitution is the best in the world but it need to fairly implemented at the ground level.

Speaking on the occasion noted human rights defender Ms Teesta Setalvad asked for a broader unity based on conviction to defend democracy and secularism in India and express solidarity with all the like minded segments who are fighting for the rights of the people. She also spoke of Dalits and Aadivasi struggle and applauded Jignesh Mewani of Gujarat for working towards the unity of all the marginalised communities. Ms Setalvad also cautioned the community of responding to every small issue and getting emotionally agitated on things including the Uniform Civil Code. She said what is left there as Muslim women have always have option to go to the court in case any issue comes out. 

There were presentations from young scholars on triple talaq issues, role of Muslim Personal Law Board.
A book, ‘Exclusions of Muslims in India Legitimacy: Legitimacy of the Constitutional State” written by Arsi Khan was also released on the occasion by the Justice Rajinder Sachar and all other dignitaries.

Prof Abu Talib Khan, the Vice Chancellor of Allah University Kolkata, welcomed the guests and hope the seminar would provide vision to face the future challenges.
 

 

Speaking on the occasion noted human rights defender Teesta Setalvad asked for a broader unity based on conviction to defend democracy and secularism in India and express solidarity with all the like minded segments who are fighting for the rights of the people. She also spoke of Dalits and adivasi struggle and applauded Jignesh Mewani of Gujarat for working towards the unity of all the marginalised communities.

John Dayal spoke of violence against Christians in Kandhamal and continuous oppression of Dalits in various parts of the country. He emphasised that we can not allow our Constitution to be assaulted and will have to prepare to fight long term battle. We need to track down each cases carefully and look into the way the cases have been filed and followed up by the authorities like what he himself was engaged with people of Kandhamal who faced the worst violence against them in independent India’s history.

Activist Vidya Bhushan Rawat said that South Asia has majoritarian tendencies where minorities are despised and it is time we talk of minority rights in South Asia. A minority in India is a majority in Pakistan, Bangladesh or vice versa. And in all the states in South Asia, condition of minorities is serious and hence we need serious thinking over it. The anti- cow slaughter movement in India is turning like Blasphemy law of Pakistan mainly targeting the marginalised and minorities and we must speak against it. While we must defend constitutional values and rights, we must have enough space for introspection to our failures too.

Manzoor Alam, Chairman at Institute of Objective Studies, said that two more seminar in this series would be organised this year with final one in Delhi to commemorate the 30th year celebrations of the founding of Institute of Objective Studies.
 

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Muslim women in Mumbai demanding ban on triple talaq. File picture.

With no hope of help from the All-India Muslim Personal Law Board, Muslim women victims of instant divorce (triple talaq) are approaching Prime Minister Narendra Modi and UP CM, Yogi Adityanath for justice for Muslim women.

Among them is Shumayla Javed, a national-level netball player who is now living with her parents in Peerzada locality of Amroha in UP.

The Hindustan Times, among others in the print and electronic media, reports that married in February 2014, Shumayla gave birth to a daughter in May 2015. That became the reason for her husband to unilaterally terminate the relationship in April 2016 by pronouncing the dread words ‘talaq, talaq, talaq’.

She now believes that triple talaq among Muslims is a social evil which must be eradicated. Accordingly she has written to Modi and Adityanath seeking justice for Muslim women victims of triple talaq.

Since the divorce Shumayla has been living with her parents in Amroha and works as a data entry operator for a living. She claims that the police had refused to lodge her complaint post the divorce but in the changed political climate she is hopeful of getting justice.

Before her, two other Muslim women from her city, Marium and Shaheen have also spoken out against triple talaq and demanded a ban on the practice.

The MLA from Amroha and former minister Mehboob Ali has promised to extend all possible help to the player in her search for justice, according to the Hindustan Times report.

Meanwhile, the Okhla Times has reported that after the recent launch of an exclusive helpline by the All India Muslim Personal Law Board, the Jamaat-e-Islami, Hind, has designed an app to create awareness on personal laws and to “counter propaganda” regarding triple talaq.

Titled Muslim Personal Law Awareness Campaign, the app can be downloaded from the Jamaat’s website, jamaateislamihind.org.  
 

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Heightened media coverage on the issue of triple talaq along with the statement of the Prime Minister Narendra Modi and the Chief Minister of UP Yogi Adityanath is causing harm to the struggle for gender justice within the Muslim community. Media coverage is making a public spectacle of victims of triple talaq and encouraging voyeurism for TRPs. Media manages to get a “maulvi” of dubious repute for giving sound entertaining sound bites that make buffoon of the community.

Gender justice within the Muslim community will be achieved primarily by the struggle of Muslim women, of course with the support of democratic institutions. Politicization of the issue to score brownie political points will harm the cause of Muslim women. What Muslim women need is solidarity and support from the feminist movement in particular and liberal democratic forces in general.

Pronouncing the word ‘talaq’ (I divorce thee) thrice in one sitting and instantly snapping matrimonial ties unilaterally by the husband is once again in news as the Supreme Court is going to hear Shayara Bano’s petition on the issue and the PM has chosen to speak on the issue. This form of divorce is called talaq-e-bidat (bad in theology but valid divorce) and popularly it is called as triple talaq.

The ulema (learned religious leaders of the community) have validated triple talaq pronounced orally, even if in a fit of rage, in a state of inebriation, or conveyed on phone, through sms, or through post. The wife so divorced is instantly evicted from her matrimonial home or if not in the house at the time of divorce, she is prevented from accessing her matrimonial home and children.

The practice is abominable and indefensible. Yet the All India Muslim Personal Law Board has claimed in their affidavit that triple talaq is part of shari’a law which is divine and it is their Constitutional right to practice their religion. Elsewhere, we have elaborately argued that triple talaq in one sitting is unconstitutional as well as contrary to the Quranic method of divorce and prayed that Hon’ble Supreme Court read down the provision (Engineer, 2016).

Protectors of Muslim Women

The PM chose to speak on the issue of triple talaq at the BJP’s National Executive meeting in Bhubaneshwar on 16^th April 2017. He said, “Our Muslim sisters should also get justice. Injustice should not be done with them… [I]f there are social evils, the society should be woken up and efforts made to provide justice to the victims.”

The Uttar Pradesh Chief Minister Yogi Adityanath said on 17^th April 2017 that those maintaining silence on the “burning issue” of triple talaq were as “guilty” as those practising it. Yogi compared the triple talaq to the disrobing of ‘Draupadi’ in the Mahabharata. He also called for a uniform civil code in the country.

Both, the PM and the CM of UP, are trying to project themselves as protectors of Muslim women from the evil and inhuman Muslim Personal Law. However both have a lot to answer for, given their past.

Under the watch of Modi, when he was the CM of Gujarat, in 2002, during the riots, Muslim women’s bodies were the site on which sexual assaults were mounted and they were subjected to worst inhuman atrocities. Neither of them then had any feeling of remorse nor an urge to fight the injustice. Modi, then the CM of Gujarat had to be reminded of his raj dharm by the then PM – Atal Behari Vajpayee of their party. Gujarat government refused to organize any relief work for the 150,000 survivors of the violence huddled in inhuman conditions in various relief camps.

The UP CM in a video on youtube says that if one Hindu woman was married to a Muslim and converted, 100 Muslim women would be married to Hindu men and converted into Hindu fold!

Of destruction of wombs and liberation of Muslim women

In 2002 during communal riots in Gujarat, the Hindu supremacists who mounted sexual assaults and heinous crimes on Muslim women’s bodies did so to pollute or destroy the wombs of Muslim women that gave birth to children of Muslim community (International Initiative for Justice in Gujarat, 2003, pp. 40-41). Now they are posing as liberators of Muslim women from the oppression of their men.

Modi then had sort of provided justification of the riots by terming it as a reaction to burning of Sabarmati Express in Godhra. Thereafter he never expressed his remorse that under his watch the scale of violence had reached its peak. Those who were accused of rapes and involvement in riots had little to fear the judicial process and were being acquitted until the Supreme Court stepped in and set up SIT to prosecute the accused. Bilkis Bano’s rape case trial was transferred to sessions court in Mumbai which resulted in conviction of some of the accused.

Behind the facade of getting justice for the Muslim women in general and victims of triple talaq in particular, the BJP has political motives. When the PM and the CM of UP were not on the posts they are presently holding, they stigmatized the Muslim community in harsher words using cruder language.

In the year 2002, after the riots Narendra Modi took out Gujarat gaurav yatra (pride journey). In the yatra he would address public meeting during and accuse that relief camps for riot survivors to be breeding camps where the survivors were breeding like rabbits. In the next Gujarat state Assembly elections, the target of the Modi’s speeches was “Mian Musharraf (the then President of Pakistan) mentality”! The subtle message was that Muslims were loyal to Pakistan and needed to be taught a lesson.

Posing as protectors of Muslim women, Modi and Yogi are achieving the same objective with more sophisticated means – stigmatising the Muslim community as one having unjust traditions and women in the Muslim community are being disrobed. General Secretary of Hindu Mahasabha – Pooja Shakun Pandey went a step ahead and asked all victims of triple talaq to convert to Hinduism and she would organise their marriage and do their kanyadaan (ritual of father gifting his daughter to the bridegroom). 

The Hindu supremacists then want to convert Muslim women and gift (marry) them off to Hindu men to improve their demographic figures and reduce those of Muslim community. Rescue Muslim women only to gift them off and be property of Hindu men. Hindu supremacists opposed the Hindu Code Bill in 1950s so painstakingly drafted by Dr. Babasaheb Ambedkar to ensure gender justice to Hindu women. Hindu supremacists organized militant protests and denounced Dr. Ambedkar as an untouchable drafting laws for Hindus.

The Hindu supremacists do not problematise dowry, child marriage, female feoticide etc. Given caste hierarchies, Hindu supremacists defend the parental control over their daughters in matrimonial matters. They have never raised any voice against honour killings when daughters dare to chose their own life partners. “Anti-Romeo” squads and “love jihad” campaigns are precisely to ensure that Hindu women do not choose their life partners and do not have freedom to wear the clothes they like.

Ministers in the present government have advised women to wear appropriate (traditional) dresses to be secure from sexual assaults instead of ensuring safe space for women and inclusion in every field. BJP MP – Sakshi Maharaj and RSS Sarsanghchalak Mohan Bhagwat called upon Hindu women to produce 4 children reducing the women to child producing machines for their husbands and their community.

Hindu supremacists are not very different from the religious and political leaders of Muslim community with regard to their attitude towards worth and role of women in family and community – chattels or property of the males within the family and under their complete control; slave labourers for the family confined to home for unpaid domestic work, rearing children for men; labouring outside home if men need their incomes; confine them to religious spaces so that they are indoctrinated to serve the men in the family and accept being reduced to chattels and slaves.

Triple talaq is one such weapon in hands of Muslim men to keep control over “deviant” wives. Khap Panchayats, domestic violence and misogynist culture are weapons of Hindu men. Strategies and instruments of control may differ slightly but nevertheless their objective is to control and reduce women to chattels and slave labourers and objects of sexual pleasure for men. Hindu supremacist talk of “liberating” Muslim women, but only to enslave them to new masters – Hindu men. The feminist movement and awareness and resistance of women – both – Hindu and Muslim have changed the situation slightly and progressively.

Media and stigmatization of Muslim community

Media has been presented with an opportunity to increase their TRPs whenever issues that stigmatise Muslim community are handy. TV channels a few years ago ran extensive coverage of a fatwa which declared that Imrana who was raped by her father-in-law is now forbidden to her husband. It seemed that was the only problem faced by the nation – otherwise everything was hunky dory.

One TV channel made a public spectacle of Gudiya’s problems and coverage went on for hours. Gudiya, a Muslim, married another man after her soldier husband’s whereabouts were not known for some years and presumed dead in war with Pakistan. However, her former husband returned after he was released from Pakistan jail. “Gudiya kiski?” went the title of the programme. All relatives, maulvis, the second husband and former soldier husband and few others were assembled in the studio and public spectacle was made of her life encouraging voyeurism.

Almost all TV channels have similarly conducted talk shows on triple talaq – they got some victims to depose their tragedies, one or two maulvis to entertain their viewers with their ridiculous and provocative views supporting triple talaq and a few gentlemen around. The Islamic scholars who did not support triple talaq were obviously not favoured by invitation.

The stage was then set for a match between the victims and the maulvis with some generous support from ‘nationalist’ anchors. The lung match between Muslim women and maulvis would be good spectacle attracting eyeballs of male voyeurs into a problem of Muslims and beam them various advertisements persuading them to buy various corporate products.

The louder and angrier the fight between the victims and maulvis, more would be the entertainment and fun for the voyeurs. The BJP spokespersons would be there on the panel to represent the PM and Yogi as heroes of the nation liberating Muslim women. Perhaps that is why the media loves the PM and Yogi as they keep giving them such opportunities targeting left and liberal “anti-nationals”, cow slaughterers, terrorists, Kashmir separatist and Paki agents, religious converters.

Democracy and humanist values be damned so long as the voyeuristic media had their TRPs, they would support whatever politics! Is this the responsible fourth pillar of the state?

If stigmatising the Muslim community is one objective of Modi and Yogi, subtly establishing the superiority of Hindu community, the other political objective is to divide the Muslim community along gender lines. They have also tried to win over a section of Shias and Sufis. The political objective as spelled out by Subramanian Swamy once is to divide the Muslim community and unite the Hindus to achieve the objective of Hindu Rashtra – antithesis of democracy.

The Muslim Personal Law Board

Cornered by the media barrage and becoming a laughing stock for defending triple talaq and claiming it to inseparable part of divine Shari’a law, the All India Muslim Personal Law Board has come up with a new subterfuge. On 16^th April it issued a code of conduct and warned that those who give talaq (divorce) without ‘Sharia’ reasons will face social boycott.

The ruse of social boycott is more for media consumption than a sincere campaign to curb the menace of triple talaq. Had the Board been sincere, it would not have filed atrocious affidavit in Supreme Court completely against the spirit of Quran which gives dignity and rights to women. Board’s affidavit reduces women to a status of chattel and a slave, unintelligent being.

This ploy of social boycott has occurred to them after 70 years of resisting any change in the Muslim Personal Law and ignoring the plight of victims of triple talaq. The Board has clout and power enough to silence the women suffering oppression and scaring them with curse of Allah. However, they do not have clout or sincerity to enforce social boycott against powerful men.

Declaring, announcing and enforcing social boycott is also an offence in Maharashtra. Social boycott of the husband who has pronounced triple talaq is not going to give any relief to the woman thrown out of her matrimonial home. If a man has divorced by pronouncing the dreaded words in a fit of anger or under inebriation and repents the morning after, will be doubly punished by social boycott if enforced or enforceable without offering any relief to either.

Way ahead

The only remedy in the circumstances seems to be to educate the women and men that any number of pronouncement of the word talaq can be considered as single pronouncement followed by arbitration and efforts for reconciliation. This is the procedure prescribed by the Holy Qur’an.

The Board should agree to codify Muslim Personal Law within the framework of Quran and the spirit of gender equality mandated by Quran and drawing the best from all Islamic schools of jurisprudence. The codified law should be presented to the Parliament for being legislated.

Until the codification, Indian courts have a constitutional duty to ensure justice and equality to Muslim women and read down the provisions of various Islamic schools of jurisprudence like Hanafi, Hanbali, Shafi, Maliki, Ahle-Hadith and Shia schools of jurisprudence that are against the constitutional mandate.

Political parties will do great disservice to the country and the Muslim community by politicisation of the issue either in the name of national integration or demography or on any other ground. Peace and justice are more noble goals than winning an election or benefiting from communal polarisation.

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This entrenchment of communal identities is aimed at suppressing the caste fault-lines present in both communities. The suppression of caste fault-lines is necessary to hold on to the privileges accumulated under the Brahmanical-Saiyyadvadi social order. Thus, the demand for UCC helps the BrahamanvadiSavarna to consolidate its dominance over the Bahujan under the garb of Hindu identity and the opposition to the UCC helps the SaiyyadvadiAshrafiya to consolidate its dominance over the Pasmanda under the garb of a monolithic Muslim identity. Pasmanda is the social category which includes SC, ST and OBC who converted to Islam and are now dubbed as Muslims. 

The UCC is not the exclusive issue used to construct this binary of the Hindu versus the Muslim. It is deployed in combination with various other cultural symbols which mark out the caste ridden diverse populace into two hostile groups.
The most prominent among them are Aligarh Muslim University and the Banaras Hindu University (Muslim modernity versus Hindu modernity), Muslim MadarssaEducation and Hindu Sarasvati Education (Muslim culture versus Hindu culture), the Muslim League andthe Hindu Mahasabha (Muslim Politics versus Hindu Politics), Muslim Personal Law versus Hindu Personal Law, Muslim Secularists and Hindu Secularists (Jinnah versus Gandhi), Muslim Fundamentalist and Hindu Fundamentalists (Iqbal versus Savarkar), the Muslim Liberal and the Hindu Liberal (MaulanaAbulKalam Azad versus PanditJawaharLal Nehru) and so on and so forth.

All these oppositional symbols can be ontologically understood by replacing the expression ‘Muslim’ by ‘Ashrafiya’ & ‘Hindu’ by ‘Savarna’. Similarly, the question of UCC can be understood within the dialectic of religious identity formation and the invisibalization of the caste identity and the need for their continuous reproduction through these hostile binaries.

The function of creating false binaries is performed as much by the secular, liberal and modern Ashrafiya-Savarna as by the priestly Ashrafiya-Savarna. In fact, the former often provides, with uncanny regularity, a momentum to the secular-communal bandwagon by invoking the symbol and then reprimanding their kith and kin on the other side of the pool.

When the Savarna demands the UCC by objecting to Triple Talaq or Polygamy permitted by Muslim Personal Law, the Ashrafiya ridicules Hindu Personal Law by pointing out that incidents of polygamy are higher among Hindus compared to Muslims or Hindus leave their women in the lurch without divorcing them due to stringent norms of divorce! The secular, liberal & modern Ashrafiya is better placed to achieve this result due to the superiority of his intellectual capital over the priestly Ashrafiya. It is no coincidence, then, that in the history of Indian subcontinent, the height of communal polarisation was achieved during the reign of Mr. Jinnah & Gandhi over Indian politics, both ofwhom had an impeccable track record of being secular-liberal leaders of their respective caste groups.

The Muslim League of Jinnah effectively killed the democratic aspirations of Abdul Qayyum Ansari in this process while the Congress of Gandhi substantially undermined the democratic space sought by Dr. Ambedkar.

In present times, this function is performed by leaders like SayedOwaisi and Subramanian Swamy. There is an inherent underlying unity in the apparent hostility of the two. Within the Gramcian frame of war of positions, both take a united position against Dalit-Bahujan-Pasmanda positions of material interests and seek to win the round by hook or by crook. It is often amusing to watch Ashrafiya intellectuals bat on the UCC while bowling to the Savarna in a playful display of bonhomie!      

However, the question of the protection and preservation of the patriarchal privileges of the Ashrafiya in the garb of existing personal law is only partially answered by the above analysis as this question goes to the very root of caste system.

As explained by Dr. Ambedkar in his paper titled “Castes In India: Their Mechanism, Genesis and Development”[1] patriarchy constitutes the core of the caste order.

Unlike hostile religious identity which is only a symptom of caste structure rather than the cause of it, patriarchy is the central pillar of the caste system itself. Therefore, the patriarchal privileges of Ashrafiya are not just protected under the garb of personal laws rather the garb of personal law itself is created by the patriarchal foundations of the Ashrafiya identity! Hence, patriarchy is the base on which Ashrafiya privileges are laid down and existing personal laws only partially support them. Naturally, Dr. Ambedkar underlines gender injustice in various forms as the chief mechanism of the origin of caste in India.

Both positions, in favourof and inopposition to the UCC are an outcome of an intuitive ‘higher caste’ consensus across religious categories rather than any pious allegiance to constitutional principles or Islamic tenets as they are made out to be. Neither the constitution mandates creation of the UCC nor does Islam oppose such a system as the very idea of UCC in practical terms is non-existent in both Constitutional & Islamic jurisprudence! The main reason for the demand for the UCC by the Savarnaand its opposition by Ashrafiya is due to the consolidation of communal identities by the invisibalizingof caste identities. Both functions go on to support caste order.  In any case, there need not be any real conflict between a secular uniform civil code and religious separate laws as the former can not come into being without accommodating the later. In fact, the existing secular uniform civil code in the form of Special Marriages Act performs the very same function although in a very biased and unscientific manner. 

Similarly, it is very much possible to develop a civil code without affecting the core values of Islam and cultural autonomies of ‘minorities within majorities’ if this question is approached from the vantage point of gender justice & justice to sexual minorities. If, however, the creation of a civil  code is to be utilised as hegemonic tool of dominant groups belonging to any category which is inherent in all exercises of law making, then such a possibility is impossible to imagine, and hence futile to explore. 

The Pasmanda identity, on the other hand, has emerged in opposition to minority politics as the later has failed to fulfill the aspirations of the former[2]. It is similar to the emergence of Bahujanidentity which was formed in opposition to majority politics for materially similar reasons. The Pasmanda identity is relatively young and  its arrival is and has been actively resisted by the Ashrafiya proponents of minority politics, in the present context by manufacturing an opposition to UCC.

Thus, the opposition to UCC through conservation of regressive laws and practices including Triple Talaq, Divorce without making sufficient provision for maintenance, Halala and polygamy along with the hegemonic symbols as discussed earlier continuously obstruct the articulation of Pasmanda concerns. It is evident that the UCC debate has no substantive objects to achieve apart from its role as consolidator of communal identities. Further, the question of gender justice can be addressed within the framework of existing personal laws provided that sincere efforts for reforming personal laws are made and the debate is not used to sustain the Hindu versus Muslim binary to sub-serve the Brahmanical-Saiyyadvadi agenda of a hierarchical social order.

Keeping this background in mind, the Pasmanda position on the UCC debateisrooted in ethical concerns of inter-sectionality. For this purpose I tentatively propose the following points for consideration by Pasmanda activists:
 

1. Codification of all Personal Laws without reference to communal identities
2. Incorporation of gender justice including justice to third gender as the guiding principle of all Personal Laws. In the immediate context it would mean undertaking the following reforms:

1. Abolition of Triple Talaq
2. Adoption of minimum waiting period of one year for any divorce to take effect
3. Compulsory provision for maintenance of women after divorce till remarriage or till the time she finds an independent means of sustenance
4. Abolition of Halala
5. Universal application of criminal provisions relating to bigamy/polygamy

3.  Recognition of inherent equality of genders on issues covered by Personal Laws
4. Legitimisationof  theAll India Women Personal Law Board
5. Legitimisation of the All India Pasmanda Personal Law Board
6. De-legitimisation of the All India Muslim Personal Law Board
7. Delegitimization of Madrassa’s and Mosques as the representative of Pasmanda concerns on the question of Personal Laws
8. Preparation of a Draft UCC after incorporating these concerns

Ever since the Shahbano fiasco, the Saiyyadvadi-Ashrafiya obsession with the Muslim Personal Law has significantly strengthened the Brahmanical position against a Dalit-Bahujan-Pasmanda discourse. The Pasmanda movement hopes to prevent a repeat of this by adopting the principle of gender justice in the field of personal laws. The Ashrafiya leadership both secular and priestly is singularly incapable of undertaking the agenda of reforms in personal laws as it would mean a loss of an important tool for the reproduction of Ashrafiya identity. Therefore, the Ashrafiya position that the call for reforms must come from within the Muslim community is nothing more than dilatory tactics adopted to please their Savarna kith and kin in order to safeguard their caste privileges.

For the Pasmanda, choking essential personal law reforms would mean delaying the arrival of their legitimate social, economic and political concerns which have been suppressed for centuries.
 
 
(The author is Head, Glocal Law School, Glocal University-Saharanpur-UP)

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