It was the year 1982 when Bollywood blockbuster Nikah was released. The movie touched upon the subject of interpretation of talaq or divorce in the Muslim community. Interestingly the movie was originally named, Talaq Talaq Talaq but was later renamed Nikah. The fear being a Muslim husband telling his wife about the plans to watch Talaq Talaq Talaq on the weekend and ending up divorcing her.
The movie was a reflection of the then prevailing social mood. The Shah Bano case was hotly debated in the press. Just two years ago in 1982, the Madhya Pradesh High Court had given Shah Bano an enhanced maintenance of ₹179.20 per month.
In 1985 a division bench of the Supreme Court unanimously upheld the decision of Madhya Pradesh High Court of the enhanced alimony to Shah Bano. In 1986, the government of Rajiv Gandhi passed an act, the Muslim Women (Protection of Rights on Divorce) Act, 1986 to dilute the Supreme Court judgement and effectively refuse alimony. Apparently to protect the Muslim vote bank. It is 2016 and things have not changed since.
Recently the Supreme Court, which is hearing petitions from four Muslim woman (including one Shayra Bano) demanding a ban on the practice of Triple Talaq and polygamy has demanded a response from the union government on the issue. As we see, between two Banos, separated by three decades the issue still persists. The plight of Salma Agah in Nikah is still relevant.
The union government in its affidavit has effectively opposed the practice of triple talaq and termed it as a hurdle to gender equality. In the affidavit the government has cited many cases from India and abroad and has even listed down the countries where such practices are banned. The All India Muslim Personal Law Board (AIMPLB), which is an NGO and has no authority on Muslim personal law, too has filed an affidavit where they cite the Muslim Women (Protection of Rights on Divorce) Act, 1986 as sufficient to protect a divorced woman. The irony is that an act, which was meant to dilute the decision of Supreme Court is being cited to the same court as an excuse.
But is the current debate about gender equality or infringement of religious rights? Or about equality of the individual? Many people are making it a Muslim issue and some so called feminists are actually siding with regressive organisations like the AIMPLB because the government of the day is not to their liking. The article by Flavia Agnes in Economic & Political Weekly, a left leaning publication is a case in point. In her May 2016 article she blames Shayra Bano for not using the existing “remedies” available to her and. “why did Shayara Bano accept this torture for 15 years”? She asks. Much like the people who question the courage of women who report rape long after it has taken place. She also paints her lawyer as “little known” and seeker of “instant fame”. The self-proclaimed liberal and socialists like the Communist Party of India, Marxist (CPIM) go on to say that the Supreme Court’s recommendation of a uniform civil code will be a threat to national integration.
The point such people are missing is that it is not about the “majoritarian oppression” or “homogenization” as they like to call it. It is about providing equal rights to all the citizens. Be it Flavia Agnes or the CPIM or the AIMPLB, they are acting on personal and political agenda instead of working towards creating a society where an individual’s religion does not decide how they are treated.
In matters of personal laws like marriage, divorce, inheritance and child custody there are different laws for different religions. While a Muslim woman may be forced to share her husband with another woman only because as a Muslim the personal law allows polygamy. On the other hand a Hindu woman is legally protected from polygamy. A Muslim or a Christian family is not allowed to file their income taxes as a unit, while a Hindu Undivided Family can file its income tax as a unit. There is uncertainty about divorces ordered by the ecclesiastical courts, since they are not recognised by the law. Former attorney general, Soli Sorabjee, while appearing on behalf of the petitioner, in Supreme Court to recognise the ecclesiastical courts cites the Muslim personal law and the practice of triple talaq as an excuse.
The matter of abolishing personal laws in favour of a single civil code should be seen as not just gender equality but as the equality of the individual. We do not need laws based on religion. We need laws based on equality, laws that are in sync with the times we live in. Imagine a lunatic Hindu, petitioning the Supreme Court seeking reinstatement of Sati because it is a “religious practice”.