by Harish Gupta, National Editor, Lokmat Group
By opposing the Muslim marital practice in India of "triple talaq", the Narendra Modi government, in a submission to the Supreme Court last week, has taken a bold move that previous governments didn"t dare. The ministry of law and justice, in its affidavit, pointed at the constitutional principles, like gender equality and secularism, and said: "The fundamental question for determination by this court is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India".
While Muslims, the largest minority group, are free to abide by their personal laws for marriage, divorce or inheritance, women"s rights activists have been strident for a long time in their demand for reform of the archaic and oppressive divorce. It allows a husband to divorce a wife who has fallen out of his favour simply by using the shortcut of uttering the word "talaq" three times at her.
Islam"s holy book, the Quran, constructed its rules of matrimony as a social contract. It has provision for divorce if it is exercised in a sequential manner, with a gap of 90 days between each step. These gaps leave sufficient room for reconciliation and negotiation. The final separation, "Talaq-ul-Bidat", comes after exhausting all options of rapprochement. It is not too long after the Quran was written that Islamic scholars of various schools devised the quick fix of saying three talaq at the same time. That gave a misogynist edge to Islamic personal world throughout the medieval and early modern ages. It changed around the early twentieth century, with Turkey adopting the western civil laws and Egypt banning triple talaq. Now as many as 22 Islamic nations, including Pakistan and Bangladesh, have abolished it. Besides, there is no triple talaq among Shias, making Iran free from its bane.
In India, stonewalling of reform of the Shariat Application Act, 1937 is the handiwork of an orthodox group in the Muslim community that controls the network of mosques and madrasahs, and plays on the collective insecurity in the minority psyche. A book published by Bharatiya Muslim Mahila Andolan titled "Seeking Justice Within Family" lambasts the practice. It said fast-track divorce regime enabled by the one-sided and male-chauvinistic law has led to untold misery. Hundreds and thousands of poor Muslim women and their helpless children live in shanties. The organisation found that out of a sample of 4,710 women, as many as 525 were divorced. Of them, 346 were divorced verbally, 40 by letter of divorce and three through e-mail. The divorce rate among Muslims is higher than any other religious groups. But the slapdash method of divorce, and the law"s silence on continuous and meaningful maintenance for the children, has turned many Indian Muslim households into nightmare for the womenfolk. Women activists have correctly pointed out that the pauperization of Indian Muslims as a community, as noted in the Sachar Commission report, is substantially due to the inhumanity inherent in the divorce law.
However, the government wouldn"t have been called upon to take the initiative in banning triple talaq
if former prime minister Rajiv Gandhi had not seriously erred on his judgment 30 years ago. In 1986, Shah Bano, a 62-year-old Bhopal housewife, who had been turned away from home by her husband employing triple talaq, had found the Supreme Court by her side. The court disregarded her husband"s interpretation of the Sharia on constitutional ground, and made the divorce conditional upon compensation to be paid by him in conformity with civil divorce. But Rajiv Gandhi buckled under pressure of his advisors, who were against upsetting a "vote bank". Besides, he surrendered to powerful pleading by the orthodox All India Muslim Personal Law Board (AIMPLB), an elite minority group closely connected with the network of mosques and seminaries. Rattled for no ostensible reason--the Congress under Rajiv enjoyed absolute majority in the lower House at that time--the government enacted a new law in record time to limit the Supreme Court"s power via-vis Muslim personal law. It is an irony of history that the same AIMPLB is the main opponent to the current move to finally reboot the Muslim divorce law. And, unlike in the days of Rajiv Gandhi, the party now in power neither has a Muslim vote bank nor has to worry about electoral backlash from a community that hardly votes for it. There is every possibility, therefore, that a decision of the court in favour of the women activists" petition will lead to a new legislation that brings Muslim divorce law at par with that prevailing for other communities.
However, the public opinion created among Muslim women, and many educated men, against the injustice done to the society's weaker members under the cloak of religion underlines the necessity to discard fixed ideas about any community. In Pakistan, Mohammed Ali Bogra, the prime minister in 1955, fell in love with his secretary whom he married by divorcing his earlier wife calling triple talaq. It created such furore that the government had to enact a new divorce law in which it became necessary for a disgruntled husband to file a complaint against his wife to the union board (local administration) chief before divorce, and send the wife a copy to exercise her right to reply. At its birth in Bangladesh in 1971, it inherited from Pakistan the amended divorce law.
The Islamic nations that are also democratic have no compulsion to look upon their Muslims as vote bank. That may be the reason why their personal laws have kept pace with time. In India, on the other hand, the government's hyper-sensitivity about not offending the conservative mullahs tied its hands. It is good news that a party that does not give a hoot to the electoral blessings from a community is taking measures that will benefit its members over generations.
