By Poonam I Kaushish
Circa 1985: A five-member Constitution Bench of the Supreme Court overruled the Muslim Personal Law in the famous Shah Bano case thereby allowing a divorced Muslim woman maintenance from her husband.
Circa 1986: Then Congress Prime Minister Rajiv Gandhi got cold feet deciding to curry favour with the Muslims and got Parliament to pass the Muslim Women (Protection of Rights on Divorce) Act which reinforced denial by the Muslim Personal Law of any maintenance to divorced women.
Circa 2017: History was made when the Lok Sabha passed The Muslim Women (Protection of Rights on Marriage) Bill Thursday last whereby pronouncement of talaq-e-biddat by Muslim husbands would be held as void and a “cognizable and non-bailable” offence with imprisonment of upto three years and fine. It also provides for subsistence allowance from the husband for the livelihood and daily supporting needs of the wife and dependent children. The wife would also be entitled to the custody of minor children.
One would have expected this legislation which had been hanging fire for over three decades would be unanimously passed. Alas, that was not to be. Like Rajiv, son Congress President Rahul Gandhi too got caught in “kintu, parantu” politics and chickened out, wanting the Bill to be sent to the Standing Committee. But faced with an adamant Government he went missing from the House when the Bill was passed.
Other Opposition Parties too like the Trinimool, AIADMK, RJD and Left dittoed him but preferred to err on the cautious side lest they be seen as hostage to Muslim clergy and accused of being ‘pro-Muslim-anti-Hindu. And, stalling progressive legislation to ensure justice for the Shah Banos, Shayara Banos, Imranas etc.
Pertinently, the Congress did not even rally its ranks to press for votes on amendments moved by its MPs while the Mamata brigade refused to participate in the debate. Any wonder that the amendments got a maximum of four votes when the combined Opposition strength is 150 MPs.
Predictably, it was a lone AIMIM member who vehemently opposed the Bill alleging vested interests out to demonize Muslim men and violated their fundamental rights. It’s another matter, the MP did not move for a review of the Supreme Court judgment striking triple talaq as “unconstitutional” in August. As it stands already 100 talaq-e-biddat cases have inundated various courts.
Blaming the Muslim clergy for being obscurantist and raising the bogey of “Islam khatre mein hai”, the Government quoted from the Qur’an to show how the Holy Book had given equal rights to women and how the All India Muslim Personal Law Board was trying to curtail its spirit. Adding, nothing was in danger except the dominance of some Muslim men.
Surprisingly, even educated and liberal Muslims have chosen to either oppose the legislation or remain silent. Are they not aware that many Islamic countries have codified and reformed the Muslim Personal Law to check its abuse? In fact, as many as 22 Islamic nations had chosen to regulate triple talaq with penal provisions, codified and reformed the Muslim Personal Law to check its abuse. Polygamy has been banned in Indonesia, Malaysia, Bangladesh, Syria, Tunisia, Morocco, Iran and even Pakistan.
Undeniably, the legislation is a game changer which will have rippling effects for times to come. Not only will it unshackle 21 Century Muslim women trapped in archaic medieval Personal Laws but also give them a leg up to equality before law and protection against discrimination on the basis of her gender by underscoring Islamic feminism as modern.
Specially against the shocking backdrop of divorce rates being higher among Muslim women than men. Analysis of the 2011 census shows that Muslim women’s divorce rate (rate of divorce is calculated as a percentage of the married population for that category) is 3.53 in contrast to 1.96 for women of all religions. Also, there are 3.7 Muslim women (2,12,074) for 1 Muslim man (57,535) who reported being divorced.
Moreover, analysis for 5 States where the Muslims share in the population is higher than the Indian average of 14%, indicates that Muslim women’s divorce rate outstrips those of women from all religions by a wide margin. UP, Jharkhand and Bihar have higher divorce rates among Muslims than among Hindus. This is all the more astonishing since these States overall have the lowest divorce rates, while J&K, West Bengal and Kerala generally have some of the highest marital dissolution rates.
Besides, not a few have criticized the Bill for being prejudiced against a Muslim husband whereby he could be prosecuted without his wife’s consent for pronouncing triple talaq, unlike a Hindu man who rapes his wife while they are separated but cannot be prosecuted unless his estranged wife agrees. This anomaly needs to be amended, they contend.
Some find the Bill flawed saying that if the proposed law makes the practice of instant triple talaq illegal and void, how could a person be jailed for pronouncing ‘talaq-e-biddat’?. Others allege that through this legislation the Government was trying to bring in a Uniform Civil Code from the back door.
Regrettably, over the years deliberate distortions of religion to suit narrow personal and political ends have vitiated the country, which shamelessly, has everything to do with vote-bank politics. Whereby, Ram and Rahim have been reduced to election cut-outs.
Recall, Dr. Ambedkar was unambiguous. According to him there was no connection between religious and personal law in a civilized society. Pertinently, during the Constituent Assembly debate on Article 35 (now 44) on November 3, 1948, he observed: The Muslim Personal Law is not immutable and uniform throughout India, contrary to what had been stated in amendments (moved by Muslim members).
Reminding all that up to 1935 the North West Frontier Province was not subject to the Shariat Law, instead it followed the Hindu Law in succession and other matters. So much so that it was only in 1939 that the Central Legislature abrogated the application of Hindu Law to the Muslims of the North West Frontier Province and applied the Shariat Law to them. In North Malabar, the Marumakkathayam Law, a matriarchal form of law and not a patriarchal form of law is applicable.
As things stand today, both Hindus and Muslims have lost sight of the essentials of their respective religions and are largely misled by bigots and fundamentalists. Worse, even the educated are speaking a language barely distinguishable from that of Hindu-Muslim fundamentalists. Their stock answer to every critique: Religion is in danger.
Conveniently forgetting there is no mysticism in the secular character of a country. The State in a true democracy is neither anti-God nor pro-God. It is expected to treat all religions and people alike and ensure that no one is discriminated against on religious grounds. Ultimately, no one community should be allowed the veto or block a progressive legislation.
Enlightened opinion among the Muslims will then have a choice; be liberal and progressive or remain obscurantist and backward. The Government has taken the first step by freeing Muslim women from the vicious and humiliating tentacles of triple talaq. The next step is a uniform civil code whereby India needs to be taken towards genuine secularism and genuine national integration. What gives? —INFA