Zakia Soman and Noorjehan Niaz

Amid Politicisation of Triple Talaq, Let’s Not Forget Why the Law Is Really Needed

The question of gender justice for Muslim women remains mired in patriarchy and politics.

After failing to push the triple talaq Bill or the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Rajya Sabha during the monsoon session, the Union cabinet has approved an ordinance making instant triple talaq a punishable offence. A law against triple talaq is the need of the hour. However, it would have been ideal if both houses of parliament had passed the Bill unanimously. This was very much possible, especially after some crucial amendments were made to the original draft.

Before examining the Bill, we must state why a law is required despite the Supreme Court setting aside triple talaq last year. The argument that following the SC judgment, triple talaq is a non-issue does not hold water. We have received 50 cases of women in the last one year. On cursory analysis, the scenario is typically this: The husband throws his wife out instantly after uttering talaq. Now, where would she go for help? Where would she reside? How will she get custody of her children? Who will help her retrieve her belongings? From where will she get maintenance? The judgment gives her no protection against this arbitrary treatment in practice.

The husband continues to behave as he pleases despite the judgment. There is no accountability mechanism for a man who indulges in unilateral action, breaking the marriage in an instant. The proposed law enables the aggrieved woman or her blood relative to file a complaint in such a scenario.

Secondly, the proposed law has made the offence of triple talaq compoundable – at the behest of the wife – leaving scope for dialogue, reconciliation and reunification between the couple. It seeks to address a highly unequal situation by granting certain powers in the hands of the wife. It attempts to make the husband accountable for a serious relationship such as marriage. The magistrate can grant bail should the compromise take place and should the wife so desire.

It is unprecedented that the wife will have a say in her own divorce. The right to khula largely remains on paper in our country.

Thirdly, the wife will get custody of her children as well as maintenance. The argument about how can a jailed man provide for his wife’s maintenance needs scrutiny. This argument is based on a patriarchal assumption that a wife intends to send her husband to jail. In reality, the overwhelming number of women who approach us are extremely eager to save their marriage. They go to great lengths and are willing to make compromises if the husband is willing to continue the marriage.

Most women would register an FIR only when they have exhausted all means of negotiation and compromise. We have found women getting overwhelmed when the husband “allows” her to keep her children. They do not want to pursue any further action after that. We have often seen a woman forgiving her husband saying it is her bad luck or destiny.

It is only on the rarest of rare occasions that a woman wants to see her ex-husband behind bars. The conservatives are projecting Muslim women as villainous characters when they voice their concerns about the “poor jailed husbands”. Ideally, we want the law to lay down a procedure of divorce based on the talaq-e-ehsan method. Ideally, we want a codified Muslim personal law governing all aspects of marriage and family. Hindu community got the Hindu Code Bill 60 years ago but Muslims are deprived of a Muslim Code due to various reasons.

Aspect of criminalisation

The brouhaha over criminalisation needs to be addressed here. Another way of looking at it can be how do we bring about parity to enforce accountability in a highly tilted relationship? Besides, criminalisation is not new in women-centric laws. The laws against dowry and bigamy too send men to jail. And these are not Muslim men. The bigamy law is applicable to Hindu marriages.

Sometimes, we can be patriarchal without even realising it. Or is it that we are so obsessed with the fact that the ordinance is being brought by a BJP government that we do not mind throwing the baby out with the bathwater? But the Muslim woman struggling hard for years thinks somewhat differently. The liberals must appreciate that it has been a long arduous and mostly lonely battle for her. Besides, BJP has been in power for only four years now; needless to say, Muslim patriarchy precedes BJP government. Appreciating a good move of the government (although ordinance is not law and we wish the government collaborates with opposition) does not make one less secular. Besides, the central character here is the Muslim woman and not so much the government or political parties. The climate brought about by the political rise of Hindutva forces has led some to conclude that the time is not right. But the time for women’s equality is never right.

The question of gender justice for Muslim women remains mired in patriarchy and politics. There are many hurdles in the path of Muslim women seeking gender justice which is their Quranic as well as constitutional right. The biggest barriers are the conservative clergy opposed to reform in personal law apart from the political parties with their narrow electoral calculations.

On the one hand, there is little or no democratic engagement by religious or voluntary groups with Muslim women. This has led to a lack of understanding of the realities in her life and inadequate appreciation of her condition. The weariness in some activist circles towards all things religious has not helped the Muslim woman either. But this loss is more than made up by the overwhelming support of the general public to the Muslim women’s’ movement which is based simultaneously on Quranic and democratic rights. This highlights the brilliance of the Indian constitution.

The conservative personal law board is openly adamant about its unjust position based on a patriarchal view of women and religion. They are supported by a couple of legal luminaries who have been working overtime to trivialise the Muslim movement for gender justice. All their complicated arguments and legal-speak aim at preserving the male-dominated status quo and to make light of the suffering that women are undergoing.

Perhaps consensus among political parties on such a “sensitive” issue will remain a distant dream. The BJP understandably wants credit for the law but it defies logic as to what prevents the Congress from owning it.

Zakia Soman and Noorjehan Niaz are co-founders of Bharatiya Muslim Mahila Andolan.

Triple Talaq Debate is Bringing Out Multiple Shades of Patriarchy

In response to an allegation of “unscientific research”, the Bharatiya Muslim Mahila Andolan staunchly declares that their research doesn’t take away the suffering of the various Muslim women they worked with.

In response to an allegation of “unscientific research”, the Bharatiya Muslim Mahila Andolan staunchly declares that their research doesn’t take away the suffering of the various Muslim women they worked with.

Representational image. Credit: Been Buddy Longway/Flickr CC BY-NC-ND 2.0

In our campaign for the abolition of triple talaq we have come face to face with a complex range of patriarchal responses. From the obvious personal law board members to people in academia, from the women members of patriarchal bodies to at least one feminist lawyer – all have painstakingly tried to argue that the Bharatiya Muslim Mahila Andolan’s (BMMA) position is wrong. These responses have sought to negate or trivialise the lived realities of Shayara, Afreen, Ishrat and other triple talaq survivors who made bold to go to court. It is sad that most of these status quoists have been silent all these years when gender justice principles were routinely being violated in our society. We for one, are happy that we have upset so many patriarchal boats.

To begin with, there is the personal law board which is sort of a fountainhead for the preservation of the anti-women order. Their worldview is amply elaborated in their affidavit calling for upholding triple talaq, nikah halala and polygamy. They don’t feel the need to camouflage anything and have clearly stated in their affidavit that men have more intelligence than women; that triple talaq is better than a man murdering his wife and that polygamy is some kind of social service done by men. Unlike other apologists for triple talaq, the personal law board’s views are straightforward and unabashedly put forth.

Some apologists have been vehemently claiming that following the Shamim Ara judgment of 2002, triple talaq is no more an issue in our country. They have questioned the motives of Shayara and others. But in the process, they have ended up revealing their lack of belief in gender justice and equality. For one, the said judgment has not in any way prevented men from divorcing their wives through the triple talaq method. These experts place the entire burden of seeking justice and protection against this arbitrary and inhuman practice on the victim herself. They want men to continue to go scot-free after instantly divorcing their wives without any respect for Quranic or constitutional principles, leave alone punishment for such behaviour.

According to them, it is the divorced wife’s duty to be aware of the Shamim Ara judgment, hire a lawyer, fight a court case or just silently suffer gross violation of her rights! One feminist lawyer has written several times questioning our work on triple talaq abolition. Moreover, she has questioned Shayara and her lawyer; she has questioned scholars who support the abolition of triple talaq. She wrote an article finding good in the personal law board affidavit! She has been justifying polygamy amongst Muslims on the pretext that since polygamy is legally prohibited among the Hindus, this leaves a second Hindu wife vulnerable. Whereas all the four muslim wives are “wives” and therefore entitled to claim maintenance and so on. A wealthy man can feed, house and maintain a thousand women; so should he be entitled to marry all thousand of them? This is some novel school of feminism.

It is nobody’s claim that Indian women, be they Hindu, Muslim or Christian, have attained gender justice and equality. But there is protection for Hindu women in the Hindu Marriage Act, 1955 and for Christian women under the Christian Marriage and Divorce Act. It is the Muslim women who have suffered legal discrimination in our country owing to the systematic resistance by the patriarch-apologist combine to codification of Muslim personal law.

The Shariat Application Act, 1937 is highly insufficient and needs to be urgently reformed. It is silent on age of marriage, mehr, triple talaq, polygamy, guardianship of children, womens’ share in property etc despite there being clear-cut Quranic injunctions on each of these. The apologists are furthering the case of the personal law board by bringing in the issues of injustice faced by Hindu women. They ignore the fact that it is Muslim women who are protesting and seeking reform – and not Hindu women. The apologists should work to create a movement of Hindu women if they really believe that Hindu women are gravely harmed because of Hindu personal law.

In addition to patriarchal arguments of all kinds, we have also been subjected to personal attacks by critics known and unknown. We are pasting below a WhatsApp message that has been doing the rounds in the Muslim community over the past few months. It carries the photo of one of us [Zakia Soman]:

Name – Zakia Soman married to Soman Nambiar – Married as per Hindu Rite, Son – Arastu Zakia , self declared atheist. Zakia has formed Bharatiya Muslim Mahila Andolan along with Noorjehan Safia Niaz of Dongri, Mumbai. They have written to PM to abolish Muslim personal law and want common civil law to be applied. Last week they created a new Fitna at Haji Ali Dargha protesting that women should be allowed inside Dargha just to cool down Sabarimala temple issue where women are not allowed to enter. Now they have got first women Qazi in Rajasthan to perform Nikkah. Please create awareness this lady has nothing to do with Islam she is being used by RSS to create fitna. Please do your own research and circulate to everybody so that we avoid fitna.

The latest to join the bandwagon of apologists for patriarchy is Faizan Mustafa, vice-chancellor of NALSAR University of Law. In a recent piece for The Wire, he alleged that there are gaps in the BMMA’s national study, not to speak of problems with our ideology, approach and mission. Mustafa argues that the sampling in the BMMA study is not scientific and therefore it should be thrown out.

We published our national study Seeking Justice Within Family: Muslim Womens’ Views on Reform in Muslim Personal Law in 2015. Apart from the findings, the publication elaborates the rationale, the methodology and puts out the tools for all to see. We are not the government; we are not the NSSO; we are not a university; we are a fledgling social movement of Muslim women. We are very proud that some of us suffered just like Shayara or Afreen or other women and fought to get back on our own feet. Not stopping there, we went on to form a national collective for gender justice in Islam and for equal citizenship for our sisters. We have painstakingly walked this path over the past ten years to challenge patriarchy and to uphold gender justice and equality in the 15 states where we work. Our sample is naturally drawn from the communities in the neighbourhoods where we have a presence. But, so what? Does it take away from the fact that these 4710 women shared their intimate stories with us? Does it take away from the fact that out of these, 525 women were divorcees? Does it take away from the fact that out of the 525 divorcee women, 346 had been divorced through triple talaq? Does it take away from the fact that 4320 women were against polygamy? So then, what really is Mustafa’s problem? The problem seems to be the women themselves! The problem seems to be the fact that these women have their own views against triple talaq and polygamy!

In the same piece, he goes on to pronounce the verdict that since the BMMA wants Quranic justice, they cannot be entitled to constitutional provisions. This warped logic makes no sense to us. In our view, it is not a case of either/or. The constitution entitles us equally to the right to religious freedom as well as to gender justice. For us, all the attempts at obfuscation by so-called experts cannot take away from this simple truth. Mustafa goes on to raise yet another proposition that we have long rejected in the course of our work. We believe the word of Allah is found in the Holy Quran and everything else – shariat, schools of thought, different laws come after that. For us, the only divine source is the Quran and we are fully capable of reading and interpreting the principles and values laid therein by ourselves. We reject the patriarchal misinterpretations and manipulations that abide in some Muslim societies. We don’t allow the clerics or anyone else to mediate between ourselves and our Allah.

We reiterate that triple talaq needs to be abolished urgently. There cannot be any argument for its continuation under the cloak of sampling methods or the suffering of Hindu women or the Shamim Ara judgment. All these arguments are abhorrent in their disregard for womens’ experiences and equal rights. All these arguments only reflect shades of the misogynist worldview openly propounded by the personal law board in its affidavit to the Supreme Court.

Zakia Soman and Noorjehan Niaz are co-founders of Bharatiya Muslim Mahila Andolan

What the Haji Ali Victory Means for India’s Women

The reasons offered for barring women from the inner sanctum of the dargah draw from conservative and patriarchal viewpoints, which border on the ridiculous.

The Haji Ali Dargah. Credit: PTI/Flies

Hearing our PIL, the Bombay high court gave a verdict on August 26, lifting the ban on women’s entry into the sanctum sanctorum or mazar of the Haji Ali Dargah. This judgment does much more than restoring women’s entry into the sanctum of the popular sufi shrine. It restores our faith as Muslim women and as Indian citizens. It is a historical step forward for women in India and their arduous quest for equality in religion and society. The judgment signifies that an important pillar of our democracy – the judiciary – is on the side of women seeking justice against patriarchy masquerading as religion in our society.

At a time when the Haji Ali Trust is getting ready to file a review petition in the Supreme Court challenging the high court verdict, it is important to briefly recount the facts that led to this PIL

Like scores of women and men, we too have grown up visiting Haji Ali and other sufi dargahs. We went to Haji Ali as recently as 2011 and offered chadar at the mazar. We received a rude shock when in early 2012 we were stopped from reaching the mazar; we found steel barricades installed on the path to prevent women from entering. Unable to accept this sudden change and discrimination, we asked the Trust for an explanation. Several phone calls to their office in addition to letters to the office bearers did not yield any response. We sought help from the state womens’ commission and other government bodies. They tried to intervene but to no avail as the dargah trust did not respond at all. We took up the matter for discussion with our women members in different states and the decision to go to court was arrived at. This process lasted for nearly two years before we were able to approach the Bombay high court.

The ostensible reasons to bar women from places of worship are many. From dargahs to temples, almost all religious places offer the conservative viewpoint on women’s access to sacred spaces. These positions are rooted in misogyny and male domination, and go against the very idea of gender equality. Most age-old arguments are outright patriarchal, irrational and at times bordering on the ludicrous. Women are deemed impure when they menstruate. Using her own biology to shame, demean, confine and stigmatise her has been an old strategy of the patriarchal forces. This impurity at once affects the reproductive and sexual aspects of her personality and existence. It comes handy to bar her from entering places of worship. Indeed, this was the primary argument offered by the patriarchs in our case. Another unacceptable reason offered was about the safety and security of women. Intermingling of sexes would endanger the women, we were told. And therefore, barring our entry was for our own good.

We were further told, “women appear naked to the souls in the graveyard and hence they can’t visit the grave of any saint”. If not laughable, this is a serious assault on rationality. Some other unfounded arguments were put forward, generally in the name of shariat and religion, without any valid evidence or reference. The biggest question begging for an answer was this – what changed suddenly in 2012 to prevent us from entering?

Another important aspect needs to be highlighted here. Gender justice is a fundamental principle in our reading of the Quran. Haji Ali is a sufi saint whose shrine is popular amongst people of all faiths. Scores of Hindus, Muslims, Christians, Sikhs and Parsis visit the shrine daily. There is a growing trend of Salafism/Wahabism being witnessed within the Indian sub-continent, wherein going to a dargah is akin to idol worship. Against this onslaught of orthodoxy and misogyny it is important to uphold the sufi face of Islam, which signifies love, peace, harmony, pluralism and humanity. The sufis believed that each human being must discover her own path to God. Sufism does not lay down prescriptions for others to adhere to. Gender discrimination would be in direct contravention of Sufism. Compare this with the wahabis who are against the very notion of a dargah. The keepers of dargahs cannot resemble the wahabis in practice.

Lastly, the Haji Ali dargah is a public charitable trust. Any legal entity, be it a trust or society, is bound by the constitution and its values of equality, justice and freedom. Using articles of the constitution – in this case Article 25 and 26 – for furthering their own misogynist views did not hold in front of the court. Besides, Articles 25 and 26 apply to all citizens equally irrespective of gender, meaning they do not give precedence to men over women. As Muslim women we invoked the same articles under the constitution that deal with freedom of conscience and free profession, practice and propagation of religion as well as the freedom to manage our own religious affairs. Additionally, we also invoked Articles 14 and 15, which deal with equality and non-discrimination on the basis of sex.

We are overjoyed that the court accepted our prayers and restored our right to entry. We are overjoyed that sufi Islam has prevailed over male domination and conservatism. We are overjoyed that the constitution has supported women citizens in their fight for justice. We are confident that this judgment will go a long way in supporting the fight for womens’ entry to other religious places such as Shani Mandir and Sabarimala.

Zakia Soman and Noorjehan Niaz are co-founders of Bharatiya Muslim Mahila Andolan and petitioners in the Haji Ali case.

Why Triple Talaq Needs to Be Abolished

It is high time for the Muslim women to know that triple talaq is un-Quranic and needs to be fought against.

It is high time for Muslim women to know that triple talaq is un-Quranic and needs to be fought against.

Credit: Reuters

Following petitions by Muslim women in the Supreme Court, there has been an ongoing debate about triple talaq and the need for its abolition. The dominant views on the issue are either by the likes of the All India Muslim Personal Law Board or the Muslim women themselves. It signifies two extreme positions; continuation of status quo versus voices for reform and gender justice. This article is an attempt to put forward our position based on the lived realities of women as a Muslim womens’ organisation that strives for justice and equality.

Triple talaq should be abolished because it is un-Quranic; goes against the spirit of the Constitution and lastly, but importantly, it is unjust and inhuman. It is not a debate created by the media as suggested by some. In our work, across 15 states in the last ten years, we regularly have women coming to us with their grievances about triple talaq.

We released a report in November, 2015 with case studies of how women were rendered homeless overnight, left destitute with no help for the children either, after being divorced orally, in an instant. Most women are traumatised for life and find it difficult to recover from the shock. Some even came to Delhi to the public hearings and provided testimonies in person. In most cases, the women were not even present when the husband uttered talaq thrice. Some of them narrated how they did not find help from any of the existing religious bodies that they approached. The report has annexures also consisting scanned copies of decrees by various qazis (Muslim cleric), upholding this talaq as valid.

In our national study, Seeking Justice Within Family, out of a sample of 4,710 women, 525 have been divorced. Of these, 346 women were divorced orally, 40 women were sent a letter of divorce by their husbands, 18 women were divorced on phone, one via SMS, three through email and 117 through other methods. In the same study, 92% respondents called for a legal ban on the practice of oral, unilateral or triple divorce. To call it a media debate therefore would be untrue.

In Islam, marriage is a social contract with clear conditions to be noted down in a nikahnama (marriage contract). Not only this, it provides for affirmative provisions for a bride such as mehr (dower). Triple talaq is mentioned nowhere in the Quran, and perhaps, this is the reason why it is illegal in most Muslim countries. The Quran gives equal right to both husband and wife to seek divorce. But it nowhere allows instant divorce, for it treats marriage as a serious social relationship, entered into by two individuals. There are a number of verses in the Quran that call for attempts to reconcile in the case of marital discord. There is a verse calling for mediators, from families of both sides, if reconciliation between husband and wife is not working out. The verses clearly call for reconciliation and mediation process to be carried out over a period of 90 days. Allah has ordered the man or the husband to carry out this process. Divorce can happen at the end of this time period if the process does not lead to any reconciliation. So, the question of unilateral or instant divorce, does not arise. This makes the practice of triple talaq, as practiced in our country, totally un-Quranic. The Quran is the greatest source of guidance for Muslims. Besides, Muslims draw lot of inspiration and learning from the Sunnah or the life teachings of the Prophet. There is a widely known incident when the Prophet of Islam was tremendously displeased and reprimanded a man for divorcing his wife in an instant. No wonder, world over triple talaq is not accepted by Muslims. The Shia community in India, too, does not hold it as valid.

However, there is the Shamim Ara judgement and few more judgments by various high courts, where triple talaq was held as just one talaq, and thereby revocable while hearing the respective matters with all the specifics of the cases. But the catch lies somewhere else.

It would be a simple lawyer-like argument to say that if Shamim Ara or another such judgment exists, there is no need to call for abolition of triple talaq. Such a position overlooks certain facts and ground realities that exist in the lives of ordinary women. For one, these judgments have not prevented triple talaq from taking place in our society. But how just and fair would it be to expect that every woman who receives triple talaq must go to court to seek justice, whereas the man can just utter ‘talaq talaq talaq’ and move on with his life. Now, it is up to the wife to go to court and invoke the Shamim Ara judgment and fight. For this to happen, several preconditions are necessary. Firstly, she must be aware of the Shamim Ara judgment. She must be aware that triple talaq is un-Quranic and that the neighbourhood cleric is wrong. She must have the gumption to initiate a court case; she must have the money to hire a lawyer and the wherewithal to fight a time-consuming and complicated legal battle.

Meanwhile, more and more husbands can continue unilaterally giving triple talaq, re-marrying and enjoying their lives. It must be kept in mind, that the Sachar Committeee report has established that Indian Muslims live in poverty, socio-economic backwardness and are marginalised.Pertinent to note here, that some years ago, we decided to raise our membership fee to Rs 25. But, we were forced to go back to our original fee of Rs 5 because some women could not afford it. It’s anybody’s guess how many Muslim women can go to court to challenge the triple talaq.

Triple talaq, happens not because of religion but, patriarchy and powerplay masquerading as religion. It is important that ordinary Muslim women and men are educated about the Quranic principles of justice and fairness concerning divorce. It is important that everybody learns about triple talaq being un-Quranic. Only then can these false notions manufactured by the conservative patriarchal bodies be exposed for what they are – un-Qurani and unjustified. Only then can the bluff of the so-called personal law boards, be called wrong, as is happening now.

Prevalence of triple talaq is the most pre-eminent illustration of legal discrimination against Indian Muslim women. The Hindu Marriage Act, 1955; the Hindu Succession Act, 1956 and the consistent amendments to the Christian Marriage and Divorce Act which has been amended as recently as 2005, have enabled women from different communities to obtain legal justice to a considerable extent.

The stone-walling of the reform by few orthodox Muslims has not allowed any improvement or amendment to the Shariat Application Act, 1937. As a result, Muslim women suffer in matters of triple talaq, halala, polygamy, custody of children and inheritance despite highly just and favourable Quranic injunctions. The Uniform Civil Code is not the answer for these issues. Muslim women can get justice through a comprehensive reform in Muslim Personal Law based on the Quranic framework. This is permitted by the Constitution as well. The interference is from the patriarchs and not by the courts. In fact, the ordinary woman has to approach the courts because the clergy has consistently failed her.

Constitutionally speaking, it is clear that triple talaq is a gross violation of the rights of women citizens. The right to religious freedom applies equally to women and men. It nowhere gives male citizens the permission to oppress female citizens. Muslim women have been denied their Quranic rights owing to misinterpretations and interference of patriarchal orthodox bodies. We are confident that the courts will make this long-pending correction and give justice to the Muslim women of the country.

Zakia Soman and Noorjehan Niaz are co-Founders of Bharatiya Muslim Mahila Andolan