Whither rights of Muslim women?

Having recorded here a viewpoint on ‘triple talaq’ when the Supreme Court took cognisance of a divorced Muslim woman’s plea in March and issued notices to various parties, it is only fair to seriously look at the views of one of the principal parties asked to respond, All India Muslim Personal Law Board (AIMPLB).

It is important because it pertains to a community that accounts for 170 million of the country’s population. The media-conducted debate has so far yielded diametrically opposite views among those who want to perpetuate with this practice and those who want to end it.

Positions may have hardened due to perceived fear among minorities over recent incidents of sectarian violence and allegations of intolerance. However, the triple talaq issue should be viewed separately and dispassionately. The court’s action is certainly not the first as there have also been past rulings.

The NDA government has reportedly finalised its response, viewing it as one of women’s rights and welfare, skirting the larger issue of uniform civil code. Its political intent would be known when the court takes up the issue for hearing. We have the AIMPLB response. It has reiterated that the practice is based on Islamic scriptures and that it cannot be changed by the law of the land.

On the face of it, it has advanced no new argument. However, seeking to enlarge its ambit, it has argued on polygamy that is strictly not related to divorce and on a Muslim woman’s place in the society. They must be noted for being totally out of the sync with democratic norms that govern a modern society.

The Board, perhaps anticipating strong opposition, takes any proposal to end triple talaq as a challenge to polygamy norms that allow a Muslim to take four wives. It warns that ending polygamy would “encourage illicit sex.” There is no social, legal or scientific reason to justify this, nor has the Board put forward any.

"Since polygamy is endorsed by primary Islamic sources, it cannot be dubbed as something prohibited," it says. "Where women outnumber men and polygamy is not permitted, women will be forced into leading spinster's life. In sum, polygamy is not for gratifying men's lust, it is a social need," the board said.

This is sexism and patriarchy at their worst and put so brazenly. It calls into question the credibility of the learned men who are members of the Board. The board has said: "Quran, Hadith and the consensus view allow Muslim men to have up to four wives." Islam permitted polygamy but did not encourage it. "However, polygamy meets social and moral needs and the provision for it stems from concern and sympathy for women," it said.

On triple talaq, it claims that Sharia has granted this mode of oral divorce to husbands because “men are better at controlling emotions.” This smacks of sexism, to say the least. How it reached such a sweeping conclusion it has not explained, perhaps, leaving it for the court battle it foresees.

It claims that the triple talaq practice is actually meant “to protect women” and has provided “an easy mode to end marriages that may have irretrievably broken down.” Keeping the husband and wife “together when the husband did not want the woman” made the husband and his family “to inflict mental and physical torture on the woman.”

One can imagine heads (male) shaking sagely at this line of argument. There is not even an allusion to the right of the distressed woman to consent. The Board calls triple talaq “a very private method of divorce without going to court and making public the differences between the couple and then awaiting a long process for the outcome.” Court proceedings and trading of charges by the couple “harms the reputation of the woman more than that of the man.”

The rights bestowed by religion couldn’t be questioned in a court of law, it has said. The Quran didn’t fall within the expression of “laws” that could be challenged. The Supreme Court, it argues, cannot interfere with “religious freedom” and “rewrite personal laws in the name of social reform.” “It is better to divorce a woman than kill her.” In case of a discord, divorce was “a better option available to a Muslim man than him resorting to “criminal ways of getting rid of her (wife) by murdering her.”

This is fantastic logic. By the same inverted yardstick, is it better to whip a child than to behead the child? Is it better to make a person a slave than to kill that person? The AIMPLB would know that at least 20 Muslim majority countries, including Pakistan and Bangladesh, do not allow triple-talaq. Polygamy is banned in Turkey.

The Board wants that "women should appreciate this point that if the ratio of women is higher, would they prefer wedlock, or let them be illicit mistresses of men, without any of the rights which a wife gets." In which century, one may ask, the learned members of the Board are living? Through advocate Ejaz Maqbool, the Board argues that it was a “misconception” that Muslim men enjoyed unilateral and unbridled power to divorce.

“As per Quran, divorce is essentially undesirable but permissible when needed.” Fine, but does that give the woman any right, any relief when it is the man, and man alone, who is saying ‘talaq, talaq talaq” thrice, possibly in anger, possibly in a drunken state? Saying it through telephone, SMS and Internet is using modern technology for something medieval.

The affidavit is totally silent on the constitutional rights of Muslim women. It comes at a time when more and more women are approaching courts against age-old discriminatory practices. The 68-page affidavit has argued that the court’s concern for protection of Muslim women from alleged arbitrary divorce was erroneous as their rights were protected by Muslim Women (Protection of Rights on Divorce) Act, 1986.

This was enacted by the Rajiv Gandhi government to annul the apex court's Shah Bano judgment in 1985. That government took a U-turn on the judgment, pandering to the Muslim orthodoxy. This prompted Bharatiya Janata Party’s campaign against ‘appeasement’ of the Muslim community. L K Advani’s ‘Rath Yatra” and a massive launch of the ‘Hindutva’ campaign followed. The rest is contemporary history.

The Board sagely warns the Muslims. As a result of gender parity and securing divorce through courts alone, theWestern world’s divorce rate had shot up. This argument implicitly denounces the universal principle of man-woman equality. The Board seems oblivious of the fact that India is not a theocracy, but a secular country. The beliefs and norms, howsoever sacred, cannot trump the country’s Constitution.

Ironically, the Board recognises the role of the Supreme Court, but only to ‘assign’ it the “duty to protect its all citizens and act according to the Constitution.” Then, it declares: “The Quran is not Indian Constitution. It is applicable in Sharia Court, but Indian Constitution is democratic and secular, not based on the Muslim laws.”

By implication the Board questions both democracy and secularism. What is AIMPLB? It is a non-government body set up in 1973 with no sanctity in law. It cannot speak for all Muslims as the Shia Muslims have their own Board. It is not clear if the court has given it a notice to respond or whether it would seek to intervene as a party.

Eminent persons like Prof Tahir Mahmood, on whose interpretation the Supreme Court had based its verdict in the 1985 Shah Bano case is among the select few who have demanded that the Boards be scrapped. Their representative capacity has been questioned. Notably, the Board has opposed many of the modern legislations like the Right of Children for Free and Compulsory Education Act, 2009. It has supported child marriage and opposes the Child Marriage Restraint Act. Should such bodies be given the right to represent their community?

By Mahendra Ved