(An ordinance on triple talaq has received Cabinet approval. In light of this, The Quint is republishing this article from its archives. It was originally published on 13 January 2018.)
In 1960, India’s first Prime Minister, Pandit Jawaharlal Nehru, told Taya Zinkin of The Guardian, “I could do something for Hindu women. I couldn’t do so for Muslim women because the community did not agree.”
A rare photo of Nehru writing at his desk at Anand Bhawan.
In reality, Nehru faced a lot of opposition from the Hindu community too, yet he went ahead with the Hindu Code Bill and it was passed as a law. Even the then President Rajendra Prasad was against it. So why did he not do the same for Muslims? Why did he defer to the views of the Muslim community on it?
To understand Nehru’s position, and to see how we have arrived at this point in our fight against triple talaq, we must take a look at India before and after 1947.
No Time for Muslim Code Bills
India’s independence also meant the partition of the country into two countries, India and Pakistan. As soon as partition was announced, there were large scale riots and bloodshed. Hindus in Pakistan fled to India in the face of murder and mayhem, rape and brutalities unleashed on them. While many Muslims from India opted for Pakistan, a lot of them were forced to flee as murder and mayhem, rape and brutalities were unleashed on them in India.
The Muslims who rejected the two-nation theory had decided to stay back in India, like my grandparents. India was lucky to have had a visionary like Dr Ambedkar who gave us a magnificent Constitution in which every citizen had equal rights irrespective of religion, caste or creed, and a statesman like Nehru who believed in secularism and built the India envisaged in the Constitution. He rooted for a secular state in a deeply religious country, which was no mean feat.
Taking the insecurities of the minorities in consideration, Nehru felt that the time was not right to push a Muslim Code Bill through.
Thus, the Muslims were to be governed by the The Muslim Personal Law (Shariat) Application Act, 1937, passed by the British in undivided India, and this is the law which continues till date with few amendments.
What Happened in Pakistan
Just as the Hindu Code Bill was passed in India, a law regulating marriage, divorce and family laws was passed in Pakistan, which overturned many of the provisions of the 1937 Act.
Since Pakistan was an Islamic state and this the pre-Zia ul Haq era, they didn’t have to face slogans of “Islam khatre mein hai”.
In Pakistan, the Muslims Family Law Ordinance of 1961 laid down very strict rules for nikah, talaq and family laws. So while in India, the instant triple talaq was still being practised, it was banned in Pakistan.
Any person wishing to give talaq to his wife had to give it in writing to the Arbitration Council, which would immediately take all steps necessary to bring about reconciliation. This is as per what is prescribed in the Quran. In India, even a talaq given over a period of three months does not have compulsory attempts at reconciliation.
In India, we were still debating polygamy, while in Pakistan the person wishing to contract another marriage has to ask the Arbitration Council for permission. “On receipt of the application under Sub-section (3), Chairman shall ask the applicant and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such condition if any, as may be deemed fit, the permission applied for.”
The Shah Bano Factor
The 1937 Act came under challenge in India from a very unlikely source, and this was to change the dynamics of India.
In 1978, a 62-year-old woman named Shah Bano was divorced and thrown out of her house in Indore by her lawyer husband. He refused to pay her the promised maintenance. Shah Bano decided to go to court under Section 125 of the Code of Criminal Procedure of India.
It’s a well-recorded case where, supporting Shah Bano’s husband Mohammad Ahmed Khan, the All India Muslim Personal Law Board (AIMPLB) was at loggerheads with the Supreme Court. AIMPLB argued that the SC judgment of granting maintenance violated the 1937 Shariat Application Act and amounted to interference in Muslim personal law.
Shah Bano’s son Jameel Ahmad tells The Quint that triple talaq will empower Muslim women.
In 1986, the then Prime Minister, Rajiv Gandhi of Congress party, gave in to the pressures of the ulemas and the AIMPLB, scared that he may lose a major chunk of Muslim votes.
A law was enacted in Parliament, namely the Muslim Women (Protection on Rights of Divorce) Act, 1986. This diluted the Supreme Court judgment and ruled that maintenance to a Muslim woman, divorced as per Muslim law, was to be given only during the period of iddat or three menstrual cycles.
Shah Bano’s lawyer, Danial Latifi, challenged the constitutional validity of the new law saying it could not be restricted to the period of iddat. Curiously, Shah Bano later withdrew her case, but this opened the way for way for other Muslim women to go to court and demand equality.
The Fight of Shayara Bano
In October 2015, a 35-year-old woman, Shayara Bano, was given instant triple talaq by her husband, Rizwan Ahmed, while she was visiting her father’s home. Shayara Bano decided to legally challenge the practice of instant triple talaq (known as talaq-e-biddat in Sharia), polygamy and halala.
Shayara Bano, who filed a case against triple talaq.
As expected, the AIMPLB, with its patriarchal values and mindset, jumped in to protect the practice of instant triple talaq, calling it an integral norm of Muslim Personal Law. The fact that it is not mentioned in the Quran or that most major Islamic countries have banned it did not seem to bother them. They were protecting their turf.
Ruling in Shayara Bano’s favour, the Supreme Court of India in August 2017 held that triple talaq as practised in India was ‘unconstitutional’, ‘arbitary’ and ‘not part of Islam’.
Only 0.49% Muslim women are divorcees amongst India’s 18.9 crore Muslims, of which the victims of instant triple talaq must be a minuscule number. But if even a single woman is under the threat of instant triple talaq, it is one too many.
That night, I shared space with Shayara Bano on a TV debate and we were jubilant.
First Overlooking, Now Overreaching?
On 28 December 2017, the government introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2017, popularly called the Triple Talaq Bill in the lower house of Indian Parliament and even managed to get it passed on the same day.
Whether it was caught unawares or they didn’t want to be on the wrong side of history as in the case of Shah Bano, the Congress did not put up much of an opposition. The most vocal opposition was by AIMIM president Asaduddin Owaisi. MPs from the RJD, AIMIM, BJD, AIADMK and All India Muslim League also opposed it, calling it arbitrary and flawed. Even allies of the ruling party NDA, such as Telegu Desam Party, are against the penal provisions of the bill.
The bill states that irrevocable, instantaneous triple talaq is illegal and whoever pronounces triple talaq is liable to a fine and imprisonment up to three years. It further states that this offence is cognizable and non-bailable. The husband has to pay subsistence allowance to the wife and family and the custody of the children will be given to the wife.
For us, who were crusading for gender equality of Muslim women, the provisions seemed a case of over reach as a civil act is sought to be criminalised.
The bill was introduced in the upper house of the Indian Parliament on 3 January 2018. The government was very keen to pass it in the current session, which ended on 5 January. However, whether because of the reaction from members of civil society who were protesting the bill or the Congress had time to study it, their leaders rose up to oppose the bill. As soon as the bill was introduced, a pandemonium broke out in the house.
The Congress in Rajya Sabha said they are against the criminalisation of the offence, and insisted on the bill being sent to a select committee for study, while the ruling party wanted it discussed in the house it self. For now, the Parliament session is over and the bill will be re-tabled in the next session.
A bill that seeks to deliver justice should indeed deliver total justice. It’s drawbacks have been discussed threadbare.
In the prevailing atmosphere, where there is a lack of trust on the part of the minorities, the time is not ripe for a Uniform Civil Code. That is something which requires a great deal of information, discussion, and consensus. It is not a bill which can be bulldozed through Parliament.
However, the time is ripe for a Muslim Code Bill. It should be drafted by a team of legal experts, Quran scholars, Muslim representatives and bodies, and above all, for the benefit of Muslim women, not for political mileage.
The ‘niyat’ should be gender justice, not scoring political points. In fact it should be kept away from all politics.