Freeze on triple talaq bill means Muslim women stay less equal
The disagreement is not merely about the criminalisation of triple talaq, an iniquitous practice that had the sanction of law until the Supreme Court declared it void last year
The disagreement is not merely about the criminalisation of triple talaq, an iniquitous practice that had the sanction of law until the Supreme Court declared it void last year, and the right of divorced Muslim women to maintenance and custody of minor children. Nominally at least, every political party has paid lip service to the principle of gender justice. Even the argument against criminal proceedings and harsh punishment of those Muslim men who persist with unilateral triple talaq to divorce their wives is couched in compassion for the deserted wife and her children. Never mind the smokescreen, the disagreements are far more fundamental.
It almost seems astonishing that no Parliament of independent India has ever thought it fit to modify the laws on which Muslim personal law rests: the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939. In 1986, the Rajiv Gandhi government passed the Muslim Women (Protection of Rights upon Divorce) Act that negated the Supreme Court judgment in the Shah Bano case sanctioning alimony to a divorced Muslim woman. It was a retrograde piece of legislation.
Independent India has passed innumerable laws that have reinforced the principle of gender justice and overturned customs and practices that were discriminatory towards women. In some recent laws, the stick has actually been bent in the other direction. Tragically, none of these have touched the plight of Muslim women who continue to be governed by laws that were formulated by unrepresentative legislatures of pre-Independence India.
It is not that this iniquity was unrecognised. It was with the idea of framing just laws that corresponded to modern citizenship that the Constituent Assembly enacted Article 44: “The state shall endeavour to secure for citizens a uniform civil code throughout the territory of India.” In the debate on the Special Marriage Bill on May 21, 1954, Jawaharlal Nehru told the Lok Sabha about its universal application: “The Bill affects not Hindus only, but is permissive for anybody, but I referred to the Hindu aspect because that aspect comes up before us repeatedly… ” Indeed, in introducing the Bill, the then law minister C C Biswas posited it as a step in the direction of a uniform civil code.
The commitment has not been honoured. The subsequent decades witnessed backsliding to such an extent that the demand for Muslim personal law reform and uniform civil code have come to be equated with assaults on secularism. The Nehruvian consensus deemed that the Muslim personal law will be left untouched as long as there is no demand from within the community for reform. As his biographer S Gopal put it, in Nehru’s worldview, “the problem of minorities was basically one for the majority community to handle. The test of success was not what the Hindus thought but how the Muslims and other communities felt.”
In practice, this has meant that the ulama, the most organised section of the Muslim community, and its appendage bodies such as the All India Muslim Personal Law Board have invariably got their way. The AIMPLB declared that the Triple Talaq Bill “encroaches upon the fundamental rights of equality and rights set out in Article 25 of the Constitution” and proclaimed its total opposition. It was this threat that prompted all those parties over-reliant on the Muslim vote to close ranks in the Rajya Sabha.
There is a presumption among ‘secular’ parties that the Triple Talaq Bill is a Muslim issue and that its non-enactment won’t agitate the majority community and automatically trigger a Hindu consolidation. This may be true. But in one respect this modest bid to force all divorces to go through the judicial route — it does not affect the male bias of the Muslim divorce laws — is a big first step. Apart from indicating that Muslim personal laws can be modified and even reformed if there is political will, it is an attempt to tackle the grim reality of differentiated citizenship.
In independent India all citizens are equal but Muslim women are less equal than others.
DISCLAIMER : Views expressed above are the author's own.