We Welcome the Law Against Triple Talaq

The triple talaq law has invoked sharp reactions in a polarized atmosphere. The question of gender justice for Muslim women has been forever mired in a complex web of politics and patriarchy. Nevertheless, this is a historic moment for Indian democracy. Reform in Muslim family law which remained elusive for seven decades post-independence has become possible thanks to the democratic movement of Muslim women against triple talaq. The Supreme Court judgment of 2017 and this law became possible thanks to tireless efforts of ordinary women. It is no less significant that they received popular support from women and men across India.

Ideally, India needs a Muslim family law which protects legal rights of women just as the Hindu marriage and other family laws. Ideally this law should have been passed through consensus and unanimously by Lok Sabha and Rajya Sabha.  This should have happened in 1950s and 1960s when the Hindu Code laws were being passed and other laws were being amended to enable divorce rights for Christian women. But then we do not live in an ideal world. Indian women continue to bear the brunt of male-dominated society and narrow electoral calculations of politics. Women continue to suffer at home, in family, in society despite of the Constitutional promise of justice, equality, non-discrimination. Muslim women additionally bear this brunt owing to perpetuation of patriarchal norms in the name of religion. It is not an exaggeration to say that Quranic injunctions of justice have failed to translate into reality for ordinary women.

Some of the key objections to the triple talaq law need to be evaluated. This law criminalizes instant triple talaq. Let us bear in mind that the Muslim women’s demand is not about punishing the man, but to ensure justice and fair-play to the wife. Nevertheless, a law would be meaningless without deterrence. Triple talaq has been taking place despite the SC judgment banning it. Under the circumstances, what is the aggrieved woman supposed to do? She can do little else apart from quoting the judgment to the husband determined to pronounce talaq and throw her out. However, the law enables reconciliation between the two by making the offence bailable and compoundable. The fear mongering is unfounded as the FIR can be filed only by wife or family members -- all of whom would be fellow Muslims. This demonization of the woman as though she is simply waiting for the law to send the husband behind bars is laughable and outright patriarchal. Just remember the pathetically low conviction rates in cases of Hindu bigamy, dowry, domestic violence. The conservative personal law board, politicians and some legal experts who have no understanding and concern for the condition of women are baselessly opposing the law. They are attempting to raise fear in the minds of ordinary Muslims by showing the danger of the BJP government. We don’t agree with many other policies of the government. But on the triple talaq issue, the government is 100% correct constitutionally speaking. The legal experts opposing this law need to explain why jail term is ok in Hindu bigamy or dowry or domestic violence but not in triple talaq !

In reality those opposing the triple talaq law never engaged with the question of justice for Muslim women, but are now suddenly concerned about the harm the law would bring to women. Another laughable objection is that: “Who will provide for her for the three years when the husband is in jail?” For heaven’s sake, how did they dream about the husband pronouncing instant unilateral talaq providing maintenance to the wife he has just divorced? We have documented hundreds of cases of women who did not receive a naya paisa from the husband. Not just that, in several cases, the husband simply threw her out of the home, snatched away her belongings and the items she brought as dowry. These experts seem hell-bent on opposing every action of the government; let the women continue to suffer! In throwing out the baby with the bath water, they are unwittingly contributing in retaining the male-dominated status quo.

Owing to the nexus between so-called secular political parties and conservative patriarchal clergy, Muslim women are denied the benefit of legal framework. Triple talaq, halala, polygamy take place in spite of Quranic principles of gender justice and constitutional safeguards. Everybody remembers how Shah Bano, a 65 year old divorced woman was denied a nominal monthly maintenance of Rs 125 granted by the court. The government, clergy, politicians connived to deny justice to a solitary woman under the bogey “Religion is in danger.” They find that the BJP-led government is walking away with the credit. But then, when Congress keeps quiet when women of the whole country demand abolition of triple talaq, this is bound to happen. The BJP has seen a window of opportunity where other political parties miserably failed. But then, who is responsible for this situation? Certainly not the muslim women! Allah created man and woman as equal. The conservative clergy has come in the way of rights granted by Allah!

The demand for change has come from within the Muslim community. Each affected woman is somebody’s sister, somebody’s daughter, and somebody’s mother. There has been a growing awareness about Quranic injunctions on gender justice. Today, Muslims are aware that instant triple talaq is not sanctioned by the Quran. This is the key reason why the conservative Muslim Personal Law Board could not achieve much success in their attempts to raise passions and invoke fear of “interference in shariat.” Sadly, the so-called secular parties remained ambiguous, and did not openly support the agitating Muslim women. This hypocrisy is exposed. It is pointless to go into the motivations of the government, but it must be stated that legal protection for women is mandated by the Constitution.


We are not suggesting that lives of Muslim women would change drastically and immediately. Legal reform is an important part of larger process of social reform. Large sections of Muslims are poor, educationally and economically deprived. They are under threat from communal violence and discrimination. The triple talaq law will have to be followed by awareness, education and empowerment of both women and men.

VIEWS OF MUSLIM WOMEN IN MAHARASHTRA ON MUSLIM FAMILY LAW

VIEWS OF MUSLIM WOMEN IN MAHARASHTRA – STUDY BY BMMA – MARCH 2019

VIEWS AND EXPERIENCES OF MUSLIM WOMEN IN MAHARASHTRA

About The Respondents

Study was done in Ahmednagar, Amravati, Aurangabad, Jalgoan, Nashik, Palghar, Panvel, Pune, Raigad, Satara, Solapur and Thane. 

505 Muslim women were interviewed in 24 villages. 

402 women are homemakers. 

278 had family annual income between 35K-50K 

207 of the women surveyed had 1-2 children

10 women have adopted children from their family members or relatives. 

Consent and Age of Marriage 

Out of 505, 428 said that their consent was sought before marriage. 

Out of 505 women, 333 were married on or before 18 years

Nikaahnama

225 of the respondents did not have their nikaahnama. 

Out of those who did not have it, i.e. 225, 16 said that it was not made at all. 

50 said they did not get it in spite of it being made. 

159 said they do not even know where it is. 

Out 505, 379 of them said that they did not even read their nikaahnama before signing it. 

Meher

194 women - meher amount upto Rs.1000/- 

106 women - meher amount was fixed between 1000/- to 5000/- 

79 women - meher was fixed between Rs. 5000/- to 10000/-. 

60 women - meher was fixed over Rs.10000/- 

9 women was fixed over Rs.50000/- 

66 women said that they had no idea what is meher or what was the amount. 

170 did not get mehr at all. 

If above figures are combined than 236 women have not received meher. 

241 received their meher at the time of marriage. 

Out of all those who received it, 

·       193 got it in cash

·       68 women said that they received meher in the form of jewellery

·       3 women received meher in the form of property. 

Only 15 women said they got to decide the amount. 

90 women don’t even know who decided the amount.

Divorce

Out of the 42 women divorced, 10 were divorced before the end of first year of marriage. 

7 within the third year of marriage. 

Of the 42 divorced women, 18 of the women said that their husband wanted divorce. 

10 women said that they wanted divorce 

Of the divorced women only 6 of the women received compensation at the time of the talaq

36 of the women said they did not get any compensation.

Of the 42 women divorced 21 of them were divorced verbally 

Rest 21 were given talaq either through letter, phone, SMS, email and other way.

5 of the women were victims of halala

Maintenance 

Out of currently married 428, 53 women did not get any financial support from their husband. 

Out of those divorced women [42], 19 work are support themselves 

12 women are supported by their parents

10 women are on their own, struggling to raise resources through charity to survive. 

Out of these 42 divorced women, 27 retain the custody of the children. 

10 women said the custody is with their parents as they were re-married 

Out of 30 women who are widows 17 work and are on their own. Rest are supported either by her parents or by her in-laws. 

Domestic Violence

Out of 505 women, 217 women said that they have been subjected to violence. 

163 women said if they wanted to report violence, they would first approach the parents and elders in family. 

All India Muslim Personal Law Board

449 of the respondents had not even heard about this body. 

Property

425 women do not have a property in their name. 

430 said that current house in which they are staying is not in their name. 

VIEWS OF MUSLIM WOMEN

Age of marriage: 

261 women said the girl should be above the age of 18 years 

160 women said it should be over 21 years. 

Put together 421 women say that age of marriage of girl should definitely not be below 18.

220 women say that the boy should be above the age of 21 years 

274 women said it should be over 25 years. 

Put together 494 want the boy to be mature enough to get into the relationship of marriage. 

Mehr

474 of the women said that meher should be given at the time of Nikaah.  

457 of women felt meher amount should be decided based on the income and property of the groom. 

If meher not given at the time of nikaah, then, 

·      240 women said that the husband should pay double the amount of meher 

·      69 said the husband should be put behind bars

·      103 said he should pay penalty. 

435 women affirmed that the amount of meher must be equivalent to the groom’s annual income.  

438 women said that the meher amount must be decided based on the husband’s share in the income/profit 

Polygamy

484 women said Muslim man should not be allowed to marry another woman when already married. 

438 women said that even if first wife permits the man should not be allowed more than one marriage

311 women said even if wife is suffering from deadly disease, man should not be allowed more than one marriage

324 women said that even if wife is unable to conceive, man should not be allowed more than one marriage

398 women said that the man should not be allowed to re-marry even if she is a widow. 

471 women said man should not be given permission for second marriage even if the population of women is more than man.

Triple divorce 

Since this study happened after the Ordinance against triple divorce was passed by the central government, we took the opportunity to ask rural Muslim women about the same. Some were not even aware of the Ordinance. But on explaining to them about it, the women welcomed the Ordinance. 

481 women said that government has done right by putting a legal ban on the practice of unilateral divorce. 

459 women said it’s the right decision to give 3 years imprisonment to men who unilateral divorce their wife. 

484 felt that arbitration must be made mandatory before the divorce is finalised. 

226 women wanted that 3 months should be the process for arbitration

463 women agreed that the Qazi who sends notice of unilateral divorce should be punished.

473 women agreed that the legal method of divorce should be Talaq-e-Ahsan.

490 women agreed to Talaq-e-Mubarah being part of the legal process of divorce.

351 of the respondents say that women should not forgo her meher on khula.

Custody

In the event of divorce 461 of women believe that the custody of the child should go to the mother. 

And maintenance of the child must come from the ex-husband. 

A child’s best interest and child’s consent is crucial before deciding custody. 

Adoption

435 women had no idea that a Muslim couple cannot legally adopt a child. 

469 had no idea why that is so. 

435 were not aware that even if they adopt a child, he/she cannot legally be natural heir to your property. 

467 felt that adoption should be made legal and the couple must be allowed to make the child a legal heir. 

Views on Codification of Muslim Personal Law

Of the 505 women surveyed 447 don’t know that they do not have a comprehensive personal law  

464 women affirmed that that the codified law will help women get justice. 

484 women wanted the government to fulfil its constitutional responsibilities.

441 women said that religious leaders must support women’s demand for codified Muslim Personal Law. 

464 said that Qazi and the Darul Qazas must obey and implement the law passed. 

484 women affirmed that the government must monitor and regulate the work of the Qazis. 

492 women affirmed that Muslim women should provide legal aid and support to other Muslim women. 

Legal Justice for MUslim Women

INDIAN MUSLIM WOMEN AND THE PROCESS OF FAMILY LAW REFORMS

A BRIEF UPDATE

Zakia Soman and Dr. Noorjehan Safia Niaz

It took BMMA a process lasting over eight years to draft the Muslim Family Law. Hundreds of consultations were held across the country with Muslim women, lawyers, academics, religious experts and many more supportive stake holders. On 18^thJune 2014 this draft was made public through the media. The process of consultation towards improving the draft and building a consensus is an ongoing one. The copies of the draft have been sent to several members of parliament, members of local legislative assemblies in different Indian states, the women’s’ commissions, the law commission of India, academic institutions etc. We are working towards the draft getting tabled in the parliament with the help of some progressive MPs. Salient features of this draft are end of unilateral divorce, polygamy, halala and muta marriage, age of marriage to be 18 and 21 years, minimum mehr to be equivalent to grooms annual income, mother and father to be natural guardians of the child and equal distribution of property amongst siblings.

The need to draft the law by a group of activists was felt because our centres in different parts of the country were thronged by Muslim women who faced legal and social hurdles within the family. Either they were orally divorced or were denied divorce, their husbands remarried with impunity leaving them abandoned with children and nowhere to go, widowed Muslim women were deprived custody of their children citing that only father is the natural guardian of the children, halala, another name for prostitution was imposed on women in the name of religion, young Muslim women in the southern parts of the country were duped into temporary marriages, not to mention meagre mehr amounts, marriages without consent and underage marriages. All these rampant violations of Quranic injunctions were happening unchecked so much so that malpractices such as triple divorce have become synonymous with the Indian Muslims. BMMA felt that part of the problem could be addressed if there is a law in place which women can access. Since none existed and it looked that it will never be brought into existence by the hegemonic and steeped in patriarchy mullahs, BMMA took upon itself the task of drafting the law. In line with our slogan which says, my struggle, my leadership, the drafting process itself was an enlightening and educational process where women and men were given an opportunity to look out for solutions rather than wallowing in the problem. We were clear that we needed to explain how the violations were unQuranic and we had to go on publishing translations of Quranic verses concerning marriage and divorce to convince the ordinary people that they were being told untruths.  

During consultations it came across very clearly that the educated middle class professionals are cut off from the large swaths of the poor and assetless mass of the Muslims. Comments from a male practicing lawyer, ‘what is wrong if a girl is married at the age of 13’ or suggestion from a female NGO worker, ‘even boys should be married at the age of 18’, suggests that change and reforms in law cannot come from those who may be educated but are not steeped in values of equality and justice. Peace and dignity to women cannot come from those who though have the means and education to push for change but will still want to maintain the status quo. Largely many individuals including Muslim men contributed effectively to the consultations but fought shy of making their views public citing fear of the mullahs.  Allegations such as these women are propped up by the Hindu right wing, that they are out to change the Quran itself, that they are not wearing the hijaab, that they are inspired by western feminism, that they are not Muslims at all because they don’t “look Muslims” – were some of the comments that BMMA activists faced during the course of the consultations indicating the hard battle which was in store for us.

Many reactions came after this draft was released. As expected the religious groups rejected the draft as well as the movement terming it unIslamic. They opined that everything was perfect the way it was and calling for any change would be heretic. They also said that the Muslim law is divine and therefore it cannot be changed or codified. The women’s movement in India which has a strong track record of highlighting women’s issues still maintains a deafening silence over the effort apart from some individual feminists and a few groups who understand the issue. A women’s’ rights lawyer went to the extent of saying that the existing shariah law requires no reform and is in fact in many matters better than the Hindu law. We received tremendous support from ordinary women both Muslim and Hindu. Apart from ordinary women themselves several jurists, academics and ordinary citizens  have wholeheartedly supported the provisions of the draft and have lauded the efforts of BMMA for taking up the most neglected but the most politicized aspect of a Muslim woman’s life.

In the meanwhile BMMA also released the national study which sought the views of 5000 women on reforms in Muslim family law. 92% of the respondents wanted a complete ban on the practice of oral divorce while 91% were against the practice of polygamy. An overwhelming 83% wanted the Muslim family law in India to be codified indicating that our demand for reforms and codification is not without support. Followed by this study was a 115 case studies compilation of victims of oral divorce which again threw light on the manner in which Muslim women were divorced by their husbands. These evidentiary and empirical studies were circulated widely amongst the state and quasi-state bodies like the national women’s commission, minority commission, law commission, human rights commission. The purpose was to let the state authorities know that Muslim women are suffering because of these horrendous practices and that it cannot shy away from intervening and ending those practices. As part of our campaign, BMMA also sent a letter requesting the attention of the Prime Minister of India towards the plight of Muslim women. On 28^th October 2015 BMMA sent the copy of the draft to National Legal Services Authority [NALSA]for their perusal and attention.

These efforts bore fruit as in November the Supreme Court bench of Justice Dave and Justice Goel took a suo moto cognizance of the legal discrimination faced by Muslim women. They asked the Attorney-General and the NALSA which are state institutions, to reply whether gender discrimination suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. This decision came up during discussions on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law.

In the meanwhile BMMA wrote to Supreme Court requesting it to appoint an amicus curie for the PIL as we did not have the resources and the wherewithal to pursue the case.

JUH, a powerful body of clerics in India states that has said the MPL flows from the Quran and cannot be subjected to any scrutiny from the Supreme Court based on the principles of the Constitution. It says the Muslim personal law is not a ‘law’ and hence cannot be subjected to the scrutiny of the Part 111 of the Constitution which ensures fundamental rights. The JUH has very conveniently forgotten that the Constitution of the country allows for religion based laws as all majority and minority religious community in India are governed by their own religion based laws. All that the Muslim women are saying is even the Muslims in India must have a Quran based personal law so that justice is ensured.  They are conveniently also ignoring that all Islamic/Muslim countries have a justiciable codified family law including neighbouring Pakistan and Bangladesh, countries which came into existence just a few decades back.

We have received a lot of inspiration and support from Islamic feminists and scholars world over. We are happy and proud to be part of Musawah and the global movement for gender justice in Islam. Our experience suggests that the Muslim woman wants change for the better. She is fed up of the injustices such as triple talaq and halala. She is beginning to read the text and apply her own ideas of justice and equality to her real life situation. She is no more willing to be oppressed by the patriarchal mindsets that have ruled the roost in our society. Besides, the Indian democracy provides a unique opportunity for the women and men to demand their rights legally and socially. The values of justice and equality are a common thread across the Quran and the Constitution of India. The BMMA hopes that in the coming years we will be able to provide the example of a just and fair face of our religion. And the ordinary Indian women will make this happen.

First published by Musawah