Yesterday, the Supreme Court of India finished hearing arguments in a case challenging the constitutionality of the practice of ‘instant triple talaq/talaq-ibidat’, Nikah Halala and polygamy. The issue needs an intersectional analysis. It cannot and should not be seen from the sole perspective, either of law, gender, politics or religion. It is also critical to evaluate the role and quality of discourse.
First, I say this with great respect that in refusing to evaluate the constitutionality of Nikah Halala (Loosely described as a religious requirement that a divorced woman first marry and sleep with another man before returning to her husband) and polygamy and restricting itself only to triple talaq, the Apex Court has abdicated its duty. Despite being urged to do so by the government as well as the All India Personal Law Muslim Board (AIPLMB), the court has also refused to rule on whether all personal laws should come within the ambit of the Constitution of India. Instead, it chooses to continue with analysing whether a practice is essential/fundamental to the religion. This is most disheartening.
The court is not a panchayat, and it is not a priest. I am guessing that the reasons behind the court’s approach to this are (i) the court not wanting to open floodgates of litigation and causing ‘chaos’ in society and, ii) the belief that such changes must happen incrementally. The chaos reason makes no sense especially since the government itself is willing to take the responsibility of maintaining ‘order’. It is rather cruel that women must once again bear the burden of ‘preserving order’ because the court refuses to uphold their rights which are otherwise guaranteed in the constitution.
Secondly, the reasons that are being put forward against abolishing triple talaq. The AIPLMB shamelessly said that the court’s interference might revive a ‘dying practice’. This is tantamount to saying that don’t impose reform or we will wreck even more cruelty on our own brethren. Shame. Some argue that in such situations reform must come ‘from within’. There is (and reasonably so) a certain amount of anxiety being felt by a part of the Muslim community because of the timing of these developments. Is a majoritarian government on a rampage? What if this attempt at ‘liberating Muslim women’ is just a charade to fool people into believing that it is indeed secular and liberal? Flavia Agnes points out in her book Family Laws and Constitutional Claims that in such times religion becomes an even more important marker of identity. She argues that the intended reforms are rendered ineffective because such imposition pits women against their community.
The obvious question is, why didn’t these regressive practices get abolished when other governments were in power. If the intentions of the BJP are indeed mendacious, who is to be blamed for letting things coming to such a pass? The formula of incrementalism has only led to more chaos. It has only led to all political parties pandering to the regressive clergy of all religions.
Third, some people have also expressed pain at the discourse painting Muslims as this regressive, primitive community which abandons women at the drop of a hat. They ask, are there no inhumane practices in other religions? Why aren’t they being dealt with first/together? In her book, Agnes reminds us of the long, painful and continuing journey that is the reform of Hindu Personal Law. Sardar Patel, Rajendra Prasad, and the RSS opposed the right of women to divorce, the abolishing of coparcenary and inheritance to daughters amongst Hindus. Until 1955, polygamy was permitted amongst Hindus. Until 2005, daughters had limited rights in the ancestral property. Marital rape and child marriages are still pervasive across religions. These are, however, arguments in favor of abolishing all regressive laws and practices.
Fourth, the sensationalist approach of the media. The media would have everyone believe that an average Muslim man is a regressive adulterer at best and a terrorist at worst. Tragically, an average non-Muslim rarely interacts with Muslims. Again, all communities, the government, and the courts share blame for this. For instance, there is zero movement on housing discrimination being outlawed. Everyone loves their ghettos. An average non-Muslim learns about Muslims through the media which paints an astonishingly ridiculous picture. The media has failed to educate people about the reform of the personal law in every religion. It has failed to point out that instant triple talaq is not the only way (and by some accounts not even the prevalent) mechanism of divorce. It has failed to inform people that Islam and Muslims are not monoliths. It was duty bound to do so. It must reflect on the damage this failure is resulting in before it is too late.
Finally, instant triple talaq must be abolished pronto. Obviously, these are not the ideal set of circumstances in which this should have happened. But they will have to do. The society, courts and the government already compel women to bear too many cruel burdens. No more.
This article was first published in Mumbai Mirror