By Arshad Alam, New age Islam
01 August 2019
The repeated references to Shah Bano affair of 1986 (in which the parliament bent over backwards to accommodate the wishes of orthodox Mullahs) by the law minister Ravi Shankar Prasad made it amply clear that the Triple Talaq bill was meant to correct a historic wrong. The congress party in 1986 appeased the Mullahs by taking away whatever meagre rights the courts had granted to Muslim women. For the nation’s collective psyche, it was as if the religious concern of Muslims was above the constitution. Hindu religion had been legislated upon and changed according to the evolving times.
However, an insular Muslim politics, aided by a sectarian congress leadership saw to it that the Muslim religion became backward and regressive with the passage of time. A narrative arose within the majority that Indian Muslims somehow were treated differently and certainly when it came to their religion, they were a pampered lot. A certain resentment built up against Muslims over the years. The Muslim leadership was hardly concerned to rectify this perception that was building up amongst the majority community. So yesterday, when the law minister and others referred to Shah Bano, they were in fact telling their constituency that they have shown Muslims their place. That with the BJP in power, Muslims and their religion will not be judged differently by putting Islam on a pedestal as was done during previous regimes.
Of course, the politicians who were eager to see the passage of the bill couched it in terms of gender justice and equality. There is some merit in the argument that the bill is certainly a step forward in terms of granting Muslim women certain rights. However, no one seems to be convinced because this argument is coming from a party who very recently campaigned against gender justice in the Sabarimala case. More than gender justice, this is about showing Muslims their place in the new dispensation. And if Muslim women are to be used to make this point, so be it.
This however, is not take away the struggles of thousands of Muslim women and organizations like Bhartiya Muslim Mahila Andolan who have campaigned against the abrogation of instant triple Talaq since even before this government came in power. They petitioned the congress government and various other so called secular custodians of our polity and culture but no one listened to them. They petitioned the courts and won a much deserved victory from the Supreme Court which abrogated the practices of instant triple Talaq. In their effort at lobbying they must have petitioned the current government too which is very much within their right. Petitioning the current government certainly does not make them members of the BJP and those accusing these activists of being the B-team of BJP are only themselves to blame for the mess in which the Muslim society finds itself today.
Certainly I do not believe that BJP has the best interests of Muslim women at heart, but owing to a combination of factors and for reasons extraneous to the concerns of Muslim women, the bill has got passed and it will certainly have some beneficial consequences for Muslim women.
From the point of view of Muslim women’s struggle, this is just a partial victory. For a very long time, they have been demanding comprehensive reform within the Muslim family law to make it more gender equal.
For the moment though, Muslim women can hope that perhaps the new law will make men fearful and they will no longer utter triple Talaq at one go for whimsical reasons. What is also possible is the sheer misuse of the new law. Just like what happened with section 498A (domestic violence act), it is possible that a nexus of extortionists, lawyers and police might develop to blackmail Muslim men.
The only thing that Muslim woman has to do in this case is to report to the magistrate that the husband has given her instant triple Talaq. There is no need for a witness or any other corroborative proof, the statement of the woman would be sufficient to put the man behind bars. Of course, he will have legal recourse but given the state of judiciary in this country, it will take him years to prove his innocence. One can only hope that better sense prevails amongst Muslim women and they do not abuse the law which has been made specifically for their betterment.
However, Muslim men still possess the right to give unilateral divorce to their wives if they wish to do so. The only difference is that now they will have to stagger it over three months. Under Islamic law, women still do not have the right to divorce their husbands. The most that they can ask for is Khula, which is basically a requesting the husband for a divorce. Now, if the husband does not want to divorce his wife, then the wife is condemned to live with him. The only way out for women is to approach sharia courts but since these courts have no legal sanctity in India, any injunction passed by such quasi-judicial body has no merit in the eyes of law. Within no other religious tradition in India, men have so much power over their women in matters of divorce. Thus what is required is a comprehensive review of Muslim marriage and divorce laws with the express purpose of promoting gender equality. But this is better said than done.
Already, women activists are facing the brunt of community ire and are being accused of being anti-Islamic. This comes from the erroneous assumption made by many within the Muslim society that the sharia is immutable. Sharia literally means the path or the way that exists at a particular time in history. Thus sharia is basically the norm of any society at a given moment. Societies change and so do norms and there is no reason to believe that the sharia is cast in stone. If that was the case, then no legal change within Muslim majority societies would have happened. Indian Muslims must also shed their reluctance over changing the sharia. Any law which does not change with times is bound to create problems rather than help people. Because Indian Muslims have not changed their personal laws for many years, the same law has now become an impediment to their intellectual and social growth.
Arshad Alam is a columnist with NewAgeIslam.com
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