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.

It also called upon the government to ban triple talaq just as the Sati practice among Hindus was banned by the colonial British government long ago.

(Sati practice, first banned in 1829, was applicable throughout the territories under colonial rule. A general ban for the whole of India was issued by Queen Victoria in 1861. The Indian Sati Prevention Act from 1988 further criminalised any type of aiding, abetting, and glorifying of sati).

Speaking to the media, the Board’s spokesperson Maulana Yasoob Abbas stated that the triple talaq method of instant divorce was detrimental to women’s interests.

“Why should the women always bear the brunt of divorce? It is not only the woman but her entire family and her children face the trauma,” said Maulana Abbas, adding, “When Islam treats men and women as equals, how could discrimination against women be justified?”

It may be noted that the triple talaq system of instant divorce is not considered valid among Shias. Commenting on the gross injustice inherent in the practice, he observed: “Even when the government suspends or dismisses a peon, he is given a chance to explain his position, but when a man divorces a woman she is given no chance to put forward her point of view.

Several Muslim women’s organisations – Bharatiya Muslim Mahila Andolan (BMMA), Bebaak Collective, All India Muslim Women’s Personal Law Board – have either already intervened in the Shayara Bano case or are in the process of doing so. The All India Muslim Personal Law Board (AIMPLB), has filed an affidavit in the Supreme Court pleading that the apex body has no right to interfere in Muslim Personal Law matters. The misogynist arguments of the AIMPLB in support of continuing triple talaq have been severely condemned by many Muslim men and women among others.

The post Shia Board to intervene in Shayara Bano case: “Triple talaq should be banned just like Sati was” appeared first on SabrangIndia.

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.