By Barkha Dutt
Jun 04, 2016
When history tries to understand how and why Indian secularism came to be corrupted, distorted and reduced to a mere political slogan, the beginning may be traced back to 1986 when the Rajiv Gandhi government set aside the Supreme Court’s decision on alimony for a poor Muslim woman who then became a national headline — Shah Bano. Under pressure from the Muslim Personal Law Board and with one eye on vote-bank politics, the Congress surrendered to the clergy and enacted a law that made it impossible for Shah Bano to receive the Rs 179 mandated by the judiciary as monthly maintenance from the husband who had divorced her.
Thirty years later the debate around ending triple Talaq — 22 Muslim countries, including Pakistan, have done so either officially or effectively — has similarly wrenched open the fault-lines in the secularism debate. As a feminist and a pluralist, I find it impossible to defend the continuation of this atavistic custom that allows instant divorce by the mere utterance of the word without allowing the women a similar right to automatic exit from her marriage. Couple this glaring inequity with the reversal of the Shah Bano judgment and it means that men can leave the (mostly poor) women they are married to, even grab custody of the children and are not obliged to pay long-term maintenance unless the court is able to provide some creative readings of the statutes.
More disturbing is the denial of agency to Muslim women themselves. This week I met three of the four brave women who have petitioned the courts and asked for this retrograde practice to be struck down. Aafreen Rehman and Saira Banu were both divorced by speed post. Aafreen is spunky, outspoken and angry about the physical abuse she was subjected to, and determined to assert her rights; Saira talks softly, hesitantly, staring down at her feet as she describes the multiple abortions she was forced to go through by her husband and how she has not seen her two children in months. You may ask why these women are resisting Talaq from such brutal men; aren’t they better off without them, you may wonder. But their fight is not about the desire to remain married; the protest is against gross inequality — the fight is for basic dignity.
One woman, who wanted her identity to be protected, told me that after her husband said ‘Talaq Talaq Talaq’ to her, she was discarded not just by her husband’s family and neighbours, but by her parents. When she went to seek help from the local Maulvi he screamed at her for wearing ‘Kajal’ as a divorced woman. She asked him how he could see the kohl in her eyes but not the rage and anguish in her heart. Yet, once again, just like it was with the Shah Bano verdict three decades ago, no major party is standing up for the rights of these women in Parliament (hoping to pass the buck to the judiciary for an issue that is too much of a political hot potato) and the clergy may yet again get to impose its veto. It is this self-imposed authority that Badar Sayeed, the third petitioner in the Supreme Court has challenged, the right of Qazis or religious clerics to certify divorces. She has argued that divorce is a civil-rights issue and only courts should have jurisdiction to adjudicate them.
As a petition endorsed by 50,000 Muslim women and men shows there is a rising people’s movement within the community to get rid of triple Talaq. The Bharatiya Muslim Mahila Andolan (BMMA), a group at the forefront of this campaign for equality, surveyed almost 5,000 women. The results were categorical; 78% of those polled had been divorced via triple Talaq, and more than 90% wanted the practice banned. There has also been a conspicuous silence among lawmakers around the most abused practice of ‘Nikah Halala’, which requires a woman to marry and have sex with another man before she can remarry a man who has divorced her thrice. Since many clerics club a single declaration of ‘Talaq Talaq Talaq’ as three divorces, Halala can be invoked. The BMMA poll found that 8% of the women interviewed had been asked to suffer this ignominy; that’s more than 300 women in a small group — the absolute numbers could be way higher.
The campaign to end triple Talaq has brought us face-to-face with the inevitable question: Can women really have equal rights without abolishing personal laws (of all faiths) and replacing them with secular laws? The idea is not to essentialise Islam or any other faith — the orthodoxy of all religions and cultures is tilted against women, girls and often children. A recent India Spend study, citing the 2011 census, revealed that 12 million children in India were married under the age of 10 — 84% of them Hindu, 11% Muslim (65% of all married children were female). But the difference is that at least on paper (ending the actual practice could take a longer battle) you can use civil law to ban a Hindu child marriage notwithstanding a few remaining ambiguities that make it tougher to annul a marriage if it takes place between the ages of 15 and 18. In the case of triple Talaq a parallel set of Sharia laws make even the legal challenge impossible.
I concede legitimate fears among minorities about the Union Civil Code being more about homogenisation than equalisation, especially under pressure from hard-line Hindutva groups. But just as Hindutva (as distinct from Hinduism) is to be opposed and challenged, so must the fundamentalist misogynists among Muslims.
There can be no level playing field for women and girls without a Uniform Civil Code — not a Hindu Code or a Muslim Code — but a secular code, drawn from basic principles of personal freedom, human rights and justice. To not support such a code is to weaken the case both for feminism and secularism.
Barkha Dutt is consulting editor, NDTV, and founding member, Ideas Collective