India: Hullaballooo over triple Talaq in India

South Asia Citizen's Wire
Three articles from the July 2004 issue of Communalism Combat.

by Brinda Karat (General secretary, All India Democratic Women's Association)

There are two or three key issues that need to be kept in mind when intervening in the controversy over triple talaq. Generally speaking, if one looks at the position of all women, that is women belonging to all communities, their position in all aspects of life is worsening. Whether it is the issue of domestic violence or inequalities across the board, there is a marked increase in the violence against women that we are seeing through our work all over the country.

We run 125 area-based cells for women across the country. If in a certain locality a particular community is predominant, many more women of that caste or community come to our cells there. Therefore, in certain areas we have a predominance of Dalit or Muslim women approaching us for assistance. We have found through this experience that if there is anything truly 'secular' in India it is the violence against women.

A very basic and important aspect of our approach is the framework through which we approach the issue and on the basis of which we arrive at our understanding and perspective of the issue. Therefore, for us to see the triple talaq issue as a religion-based issue alone is not right.

It is true that dowry related violence and killing predominantly affects one community just as triple talaq affects only Muslim women. But what people fail to see is that the status of women across the board is under assault and being undermined.

Taking a second wife is very common, across the board, in all communities, whether the personal law allows it or not. Violence against women - severe beating, slapping around, being thrown out of the matrimonial home, is also common to all communities, whether society at large, the community, political parties, etc. acknowledge it or not. Likewise, among Muslim women, triple talaq is certainly a matter of great concern.

Now, what do we as an organisation do when faced with this form of unfair and brutal treatment? The most important thing to remember is that as an organisation we believe in a multi-dimensional approach. We believe that a woman has different choices. She can go to court, negotiate a settlement with a local maulvi, or seek the support of a local women's organisation. The important thing for us is that it is the Muslim woman down there who is facing the situation. She is the protagonist who is fighting for herself and her children. She is fighting the family, her community and the State. It would be well for campaigners to remember whom they are fighting for.

Hence, for us as an organisation, given the aggressively polarised situation in India where the woman is a prime target of communal violence, there is a broad preference to resolve the issue of triple talaq within the framework of religion itself. So, while we know that the stance of the Muslim Personal Law Board has been indecisive, etc., given the ground-level situation, we believe that we need to engage with them even as we, as an organisation, also support women who have gone to court on the issue of triple talaq.

While there may be some who are of the view that we should not engage with the AIMPLB because they are non-secular, we feel that they are part of the different choices a Muslim woman in India has. She can go to court, she can go to the local maulvi, she can go to a women's organisation. If she feels that she needs to demand a greater share from the AIMPLB or Wakf Board, say, to ask the latter why they are not spending wakf money for women's shelters, she should have the right to make that demand and it is for us to support it.

When protest against anything, even a practice like triple talaq, becomes polemical and part of the political agenda of groups who do not necessarily have any concern for the plight of women in general, or Muslim women in particular, it becomes problematic.

In the context of the recent incident in Orissa (see box), we are in the process of launching a mass protest and campaign against the practice through a leaflet where we will solicit men and women of all communities - not just Muslims - to say that such a practice is wrong. Then, at a general level, this specific issue must fit into a wider campaign about the Indian Constitution, women's rights and gender. At an individual level, the intervention must have an appreciation of the position of that individual Muslim woman, the protagonist.

This is an approach that we like to follow in all our campaigns and protests because we believe, fundamentally, that when any issue is looked at or approached from a religious point of view it gets polluted and vitiated. The issue must remain gender-based.

With religious fundamentalism on the rise and identity-based groupings on the upswing, with aggressive community-driven violence and its retrograde rhetoric vitiating the political atmosphere, we believe that it is unethical for a political campaign to victimise the victim, that is, the Muslim woman, further. We believe that it is ridiculous to expect reform in one area when all around - politically and socially - we are regressing as a polity. The shoulders of a Muslim woman have always been bent with the plight of her existence. Now, with aggressive Hindu communalism, they have been further bent in humiliation by brutal sexual violence. At a time like this we believe a humane, multi-dimensional approach that not only recognises her plight through practices like triple talaq, but also strengthens her capacity to fight them, is the right ethical and realistic approach.


by Indira Jaising (Senior lawyer, Supreme Court of India, and women's rights activist)

Triple talaq is a system of di-vorce that exists in Muslim Per-sonal Law that allows the hus-band to divorce his wife by uttering the word 'talaq' thrice. This right does not exist for the woman. A Muslim woman has no right to divorce her husband through a system similar to the triple talaq. She would need to go to a Darul Qaza and prove the atrocities committed by her husband in order to get a divorce.

I have dealt with several cases where Muslim women have been driven to the divorce court in prolonged proceedings when their husbands have opposed a divorce. She can, however, get an extra-judicial divorce on the condition that she forgoes her mehr. The situation is patently discriminatory against women. It is primarily an issue of justice - can a marriage contract entered into by the free consent of two parties be broken by the unilateral will of one party? No other contract, including commercial contracts, can be broken in this manner. The breaking of a marriage contract has emotional and financial concerns that go beyond any other contractual concerns. Often it is not only the interests of women that are at stake but those of children as well.

The Bombay high court observed many years ago that the practice of triple talaq may be 'good in law' but is 'bad in theology'. This is a strange role reversal. I believe the truth lies the other way around - 'may or may not be good in theology', but 'bad in law.'

Supreme Court on Triple Talaq:

In Ahmedabad Women's Action Group (AWAG) and others v. Union of India, (1997) 3 SCC 573, a writ petition was filed to declare Muslim Personal Law, which enables a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void, offending Articles 13, 14 and 15 of the Constitution.

However, the Court refused to entertain the writ petition because the issue involved State policies. The Court was of the opinion that the remedy could not be provided by the judicial process and instead must be sought elsewhere.

At the same time, the Court has tried to introduce some safeguards into the talaq process. The Court has stated that talaq, in order to be effective, has to be pronounced. In Shamim Ara v. State of UP and another, (2002) 7 SCC 518, a mere plea taken in a written statement of a divorce having been pronounced sometime in the past was held to not be treated as effectuating a talaq. Instead, a talaq had to be 'pronounced', that is, it had to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

I totally disagree with this approach of the court in the AWAG case. Under our scheme of laws, the courts are bound to give their opinion of the constitutional validity of any personal law, be it Hindu, Muslim, Sikh or Parsi. I recognise the problem that arose in the Shah Bano case. Yet I think that the problem there was the fact that the Court, instead of confining itself to the constitutional and legal validity of the grant of maintenance to Muslim women under Section 125, CrPC, took it upon itself to interpret the Koran.

It is no part of the court's role to interpret the Koran and spell out the entitlements of women from the Koran. Our constitutional entitlements as spelt out by the courts must come from the Constitution, not the Koran or the Manusmriti. It is in no part the business of the courts to interpret religious texts, that is the job of theologians, not the constitutional court. When judges begin to interpret the Koran, or give us a definition of 'Sati' as being a Sita from Ramayana and Anasuya, or interpret the content of 'Hindutva' as in Manohar Joshi's case, they destroy one of the core commitments of the Constitution, namely, secularism. No secular judiciary has the right to interpret what is the core content of any religion, Hindu, Muslim or Christian. The storm over Shah Bano was over the authority of the Court to interpret the Koran. It has nothing to do with gender justice.

We are passing through difficult times, when right wing forces have polarised society and unleashed an assault against the minorities. At such times it is even more necessary that the courts take a "hands off" position on religion.

This, however, does not mean that they take a 'hands off' position on law. Any rule, regulation, custom or law that binds citizens is capable of being challenged on the grounds that it violates the fundamental rights of citizens. Triple talaq must be declared unconstitutional, not because it is un-Islamic, but because it is unconstitutional.

More than 54 years after independence, it is time we recognise that our constitutional values are as much a part of our cultural inheritance as any other. Courts have been put in place to enforce constitutional values. That is their job. Their refusal to do so is an abdication of function. It is relevant to note the approach of the Supreme Court in Danial Latifi v. Union of India, (2001) 7 SCC 740. In interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court held that the Act would be unconstitutional if not interpreted to mean that women would get a reasonable and fair provision and maintenance. The Court fought shy of declaring the Act unconstitutional, but at least they did not base their interpretation of the Act on theology, but on the Constitution.

It is not as if courts have taken a hands off approach to Muslim law alone, they have done the same with Hindu Personal Law. No provisions of Hindu Personal Law have been declared unconstitutional, though repeatedly challenged. This deference to religion, be it Hindu or Muslim, is unhealthy and has subverted a debate on gender justice.

All unjust personal laws must go, be they Hindu, Muslim or Christian. The issue is not uniformity but gender justice - all unjust laws must be declared unconstitutional. It is up to women of all persuasions to challenge all unconstitutional personal laws. While the Personal Law Board may or may not recognise a triple talaq, a constitutional court certainly should not, on the ground that it is unjust, unfair, arbitrary and discriminatory.

At a recent meeting of the All India Muslim Personal Law Board, the Board refused to discuss the issue of triple talaq and the need to reform the practice into more equitable and gender sensitive practices. The meeting ended with the promise that the Board would spread awareness among the Muslim community about practices of 'triple talaq in one sitting'.

These may be laudable efforts by the Board. The body however has no authority to lay down the law of the land and interpret the Constitution. Its legitimate role would be advocacy for the acceptance of an altered and equitable constitutional regime.


by Javed Anand

In their attitude towards notions of freedom of conscience, freedom of expression, the right to dissent or the right to be different, there is little to choose between the Hindu Taliban and the Muslim Bajrang Dal. There is perhaps some advantage in this 'mix-up', if only to underscore the point that the Taliban and the Bajrang Dal are mindsets as much as they are organisations.

In the black or white mental universe of these self-proclaimed crusaders, no shade of grey is permissible. Since they are the sole defenders of faith, they alone must have the unquestioned right to interpret it. Because their belief system is forever in danger, in the eternal 'Holy War' they are engaged in there can be no neutral ground and the distinction between friend and foe is critical. You are either "us" or "the enemy".

It is therefore not in the least surprising that in the last few weeks, under cover of a motley crowd of bearded men in flowing robes, pompously projected as Hazrat Maulana so-and-so, plus some truly pseudo-secular politicians from the Congress and the Samajwadi Party with an eye on the Muslim vote (assembly elections are around the corner in Maharashtra), the Urdu Times published from Mumbai has launched a jihad against the less than year-old Muslims for Secular Democracy (MSD).

The Urdu Times' hostility towards MSD since the latter's inception on Gandhi Jayanti Day (October 2, 2003) has been evident from the twisted logic emanating from the warped minds of several of the columnists and editorial staff of the Urdu daily. That this should be so is also not surprising.

MSD stands committed to equal citizenship, rule of law, fundamental rights, gender justice and an emphatic 'No' to both 'Mob Violence' and 'Bomb Violence'. What the Urdu Times stands for, on the other hand, is best understood from how it celebrated the devastating earthquake that took a huge toll on life and property in the Latur and Osmanabad districts of Maharashtra several years ago, as Allah's revenge on the infidels.

"Delays there may be, but Allah's ways are always just. We Muslims are of the firm conviction that Allah's curse is sure to fall on those who have made life miserable for Indian Muslims. Latur and Osmanabad are districts from where many villagers had sent a number of kar sevaks to Ayodhya. They participated in the demolition of the Babri Masjid on December 6. Praise be to Allah Almighty who has reduced to dust those who committed sacrilege on the sacred soil of the Babri Masjid" (Editorial in the January 22, 1994 edition of the Urdu Times).

On the eve of the All India Muslim Personal Law Board's Kanpur meeting (July 4), MSD held a press conference in Mumbai to reiterate its demand for an end to the inhuman and anti-women practice of triple talaq and for gender just reforms in all existing personal laws, including the Muslim Personal Law. This is the 'provocation' for which the Urdu Times, dismissed as a communal rag by many sensible Muslims, has launched its jihad against MSD since early July.

It has published articles delving into the personal life of MSD's president, Urdu poet and lyricist, Javed Akhtar, in very distasteful and extremely offensive language. Far more insidious, however, are the other 'news reports' and articles published by the daily, inciting hatred and instigating violence against Akhtar in particular and MSD's office bearers and members in general. Akhtar was warned: "Remain in your senses the day is not far when you too will be counted amongst infamous blasphemers such as Salman Rushdie and Taslima Nasreen."

The "Hazrat Maulanas", who, according to the Urdu Times, held an emergency meeting to serve the ultimatum on Akhtar and the MSD, also appealed to all Muslims to impose a total social boycott against the likes of Akhtar.

In other reports and articles, MSD and its members have repeatedly and variously been described as "enemies of Islam", "munafiqeen" (dictionary meaning: hypocrites, infidels, atheists, despoilers), a communist-led outfit that is part of an international breed of Muslim traitors, who while pretending to be Muslims are in fact "pro-US, pro-Zionists, pro-sangh parivar".

But the most shocking instance of the daily's inflammatory and highly irresponsible writing assumed the form of an orchestrated campaign against Sajid Rashid (executive chairman, Maharashtra State Urdu Academy, editor, Hindi eveninger, Hamara Mahanagar and vice-president, MSD), for allegedly "insulting the Koran". That this campaign against Rashid could incite some hot-headed Muslims into violence against him makes the bogus allegation despicable; else it is so frivolous as to be laughable.

On July 19, a delegation of MSD office bearers, accompanied by Teesta Setalvad (secretary, Citizens for Justice and Peace), Nikhil Wagle (editor, Mahanagar), met the Mumbai police commissioner, AN Roy to demand criminal prosecution of the editors, publisher, proprietors and certain correspondents and columnists of the Urdu Times for inciting hatred and instigating violence against Akhtar and Rashid in particular and other members of MSD in general.

The delegation told the commissioner that the voice of MSD would not be stifled by threats or the use of violence and that MSD would hold Urdu Times solely responsible should there be any incident of violence against any member of MSD in the coming months. They added that they expected the police force in a secular society to stand by those who stood for fundamental freedoms rather than those who threatened violence to silence a dissenting view.

The police commissioner assured the delegation that he would immediately ask the legal department of his police force to examine MSD's demand for criminal prosecution.

(Javed Anand is general secretary, MSD).