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”.
