Mani Shankar Aiyar Is Wrong On Triple Talaq

The debate on triple talaq reinforces the fact that we are a patriarchal society and women fighting for justice have to contend with opposition from different quarters including progressive ones. If only Mani Shankar Aiyar had written a piece to support the Muslim womens' struggle for gender justice rather than the article carried here it, would have helped the discourse against patriarchal norms in marriage and family.

There have been a number of articles in the media trying to suggest that triple talaq is not such a burning issue after all. Some have argued that Hindu women too face injustice; some others have spoken about secularism being under threat; some have spoken about the ideology of the current government. But for the voices of the women themselves calling for an end to this unjust and unQuranic practice, the attention would have nearly shifted away from the central figure, the Muslim woman herself.

Mr Aiyar and the progressives must find other fronts for opposing the central government and not place hurdles in the Muslim womens' struggle for gender justice and equality. 

It must be reiterated here that triple talaq takes place in our society despite there being no sanction for it in the Quran. Besides, there are anecdotes from the life of the Prophet making it amply clear how the Prophet considered triple talaq an unacceptable evil. Not just this, there are verses in the Quran calling for attempts towards reconciliation involving both wife and husband as well as mediation by members of both families. This process must go on for at least 90 days before it is decided that the differences are irreconcilable after which the divorce can happen in a just and fair manner. This truth lies at the core of the triple talaq issue and the rest of the arguments are attempts at obfuscation to preserve male hegemony and privilege.

Our experience as a Muslim womens' organization working across different states for over a decade now suggests that triple talaq causes a lot of pain, destitution, economic uncertainty and emotional trauma for women. In our study Seeking Justice Within Family, A National Study on Muslim Womens' Views on Reforms in Muslim Personal Law conducted in Maharashtra, Gujarat, West Bengal, Karnataka, Bihar, Tamil Nadu, Madhya Pradesh, Rajasthan, Jharkhand, Odisha, 4,710 Muslim women shared their personal stories. Of the 525 divorced women, 346 or 65.9% were divorced orally, 7.6% or 40 were divorced through a letter, 3.4% or 18 women were divorced on phone, 3 on email, 1 via sms and 117 women through other methods. In all, 78% or 408 women were divorced unilaterally and instantly. We also found an overwhelming 88.3% or 4,159 women wanted the legal divorce method to be the talaq-e-ahsan method spread over a period of 90 days and involving mutual negotiation and avoiding arbitrariness. 92.1% women wanted a total ban on oral/unilateral divorce or triple talaq. Besides, over 47% women didn't possess their own nikahnama.

So just what is the 0.3% frequency of the triple talaq argument that Mr Aiyar writes about based on an online study of 20,671 Muslims, of which 16,860 were men and only 3811 were women? Surely, he does not expect the men who are the perpetrators of triple talaq to vouch for their own misdeeds! Besides, an overwhelming majority of Muslims are poor and educationally deprived. The Sachar Report suggests that only one in four Muslims is a graduate. Nobody knows whether these four include a woman. It beats all common sense as to why would anyone conduct an online survey on the subject of triple talaq specially since an overwhelming number of Muslim women can barely read or write.

And if triple talaq were a "dying practice" as quoted by Mr Aiyar, why would so many Muslim women be demanding an end to it? Why would so many cases be pending before different family courts across the country? Why would over half a dozen women have approached the Supreme Court? The Census of 2011 puts the divorce rate among Muslims at 0.56% and 0.76% among Hindus. It is the unilateral arbitrary method of divorce which is being questioned more than the rate of divorce. Our experience also suggests that it is very difficult for a woman particularly from a poor background to exercise her right to khula (divorce initiated by a wife) as granted by the religion. Harassment begins the moment she expresses a desire for khula. She is asked to shell out money, forego her belongings, forego her mehr, give up her children. The path to khula is hardly as rosy as Mr Aiyar seems to suggest.

It is nobody's case that Indian women, be they Hindu or Christian or Parsi, have attained freedom and equality. But Muslim women face legal discrimination in the absence of a codified personal law. Parliament has passed laws and amended laws which govern personal matters of Hindus and Christians. Whereas the Shariat Application Act, 1937, gives no protection to Muslim women from triple talaq, nikah halala, polygamy etc. It is a collective failure and, at times, the collusion of the political class with conservative Muslim elements that has denied justice to Muslim women in marriage and family matters. The Constitution allows for both gender justice as well as religious freedom. Unilateral triple talaq can hardly be passed off as exercising of the right to religious freedom. As a matter of fact, the right to religious freedom is given equally to male as well as female citizens and it cannot be interpreted to mean a licence to men to subjugate women.

The BJP government has been at the centre for only three years. There was no BJP government in 1986 when Shah Bano was silenced by the Muslim patriarchs in collusion with the government. Let the progressives including Mr Aiyar not use as an excuse the politics that is identified with the BJP government. Will they advocate for the continuance of male-dominated status quo just because PM Modi spoke about Muslim women suffering on account of triple talaq? What prevented other political parties from coming out openly in support of Muslim women? A secular, progressive person such as Mr Aiyar must recognize the movement of Muslim women for gender justice and not give undue credit to Hindutva groups. It is hard to believe that a rational-thinking  person like him can be assured by the dubious hypocritical statements of the AIMPLB (All India Muslim Personal Law Board)! Even the AIMPLB does not claim that it will carry out ijtihad! It is the Muslim women who are bringing about ijtihad through their conviction and actions. They want to be equal Muslims and equal citizens.

True that there are over half a dozen judgments including the Bombay High Court judgment in Dagdu Pathan v/s Rahimbi in 2002 and the Supreme Court verdict in Shamim Ara in 2002 over-ruling the validity of triple talaq, but those have not led to the curbing of this practice. Besides, why should the husband be allowed an unfettered right to instant divorce? Why should the husband not be brought under the ambit of law? Why should it be the wife's burden to go to court and challenge triple talaq while her husband continues to enjoy normal life? Such disparity can hardly be allowed to continue in a democracy.

Gender justice is a fundamental principle of Islam and yet Indian Muslim women are unequal. The answer is a comprehensive reform in Muslim personal law. Abolition of triple talaq is the first step that must be followed by a widespread social reform movement. We are a multi-religious country where all personal laws of all religions are being regulated - so why this special treatment to Muslim men? More importantly, why should Muslim women tolerate injustice?

It is high time that elected representatives stop populist politics pandering to patriarchal elements as practiced by them and instead abide by their constitutional obligations of gender justice. The women of India are watching.

(Zakia Soman & Noorjehan Niaz are co-founders of Bharatiya Muslim Mahila Andolan.)

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