By Flavia Agnes
June 12, 2017
At a recent meeting to discuss the plight of women married to Indians living abroad (“NRI marriages”), a woman lawyer from Punjab suggested pre-nuptial agreements with specific clauses to protect them against divorces in foreign courts on the ground of an irretrievable breakdown of marriage. The first response was that at the time of marriage, the brides lack agency and smart NRI grooms will manipulate the pre-nup to the detriment of women — a valid concern.
However, the next comment by a senior judge, that it would amount to aping the West where marriages are contractual, whereas Hindu marriages are sacred unions, took me by surprise. The official from the Ministry of Law and Justice, Government of India, added that parliamentarians will object to changing the sacramental nature of a Hindu marriage through the introduction of pre-nuptial agreements.
If women are helpless, lack agency and have absolutely no say in the matter of their own marriages, the entire discussion seemed futile.
This brought me back to the recently concluded triple Talaq hearing and the agency given to Muslim women to include conditions in the Nikahnama (marriage contract) to protect themselves in their marital home — a Quranic right given in the seventh century. And here we were, in the 21st century, still holding on to the notion of a sacramental Hindu marriage solemnised through rituals such as Saptapadi and Kanyadaan.
Muslim or Hindu, contract or sacrament, the arguments are the same: Women lack agency. They lack agency to say “no” to dowry despite a law in place, they lack agency to resist domestic violence despite a law in place, they lack agency to fight desertion, to enforce maintenance, child custody, residence, though each is a hard-won statutory right. What is going wrong?
However, these were not the concerns during the six-day intense hearing on triple Talaq. Within the prescribed parameters, one had to state clearly, which side of the sharply drawn lines one’s arguments were located, even before uttering the opening comments — in favour of triple Talaq or against it. This was further projected as: For women and against community, or, for community and against women, as though these are mutually exclusive binaries. The marathon debate revolved around the short question: Whether the Muslim marriage is dissolved instantly when the husband pronounces the three dreaded words, or it comes into effect three months later, to provide scope for retraction and reconciliation.
Everyone — from the presiding judges on the bench, to lawyers who thronged the packed court hall to be present at this historic juncture, to reporters jostling to get an exclusive byte from legal luminaries present — learnt a great deal about the pristine Muslim law — Sahih Hadith to unauthentic Hadith and the grammar for determining it, which English translation of the Quran was authentic and the exact Quranic verses which dealt with the procedure for Talaq.
As against the polarities of Sunni-Hanafi Ulema of the AIMPLB and the progressive Islamic scholars who battled it out to convince the bench of the accurate Islamic law, was the modernist approach of the attorney general, Mukul Rohatgi, who argued that the only way gender justice could be secured for Muslim women was to enact a law and bring all Talaq (not just triple Talaq) under judicial scrutiny. He did not pause for a minute to reflect on the situation of Hindu women under a “modern” Hindu law since that was not an issue before the court.
It was as though everyone was in a time-wrap, in seventh century Arabia. The core concerns of modern Muslim women who are believers — the Burqa-clad women — with contemporary concerns, the marginalised, the middle class, slipped through the crevices. Hence, it is relevant to go back to the women who had approached the Supreme Court, seeking justice.
Shayara Bano has an MA in sociology, while her husband is a high school drop-out. A long history of domestic violence, dowry demands, taunts by in-laws, multiple abortions, failing health, being sent back to her parental home. In an interview, she reiterated that she does not intend to reunite with her husband, even if triple Talaq is struck down.
Her concern today is the case she has filed in the family court for access to her children. On the last court date, the husband did not turn up with the children, a usual problem encountered by women in family courts. But why had she not filed for these reliefs earlier, before this controversy broke out?
What also did not get highlighted in the media hype was that when Shayara Bano refused to join her husband, he had filed a suit for restitution of conjugal rights, a modern remedy, in a family court in UP. Since Shayara Bano did not wish to return and wanted to contest, her brother contacted a lawyer in the Supreme Court to file a transfer petition.
It was then that the husband’s lawyer in the local court drew up the Talaqnama and sent it to her. So, instead of the transfer petition, the lawyer in the Supreme Court filed the intervener application, in the motureferral made by a bench in Prakash vs Phulawati in 2015, a case dealing with the rights of Hindu women to ancestral property. The hearing converted the problems of this modern middle class couple to that of Quranic precepts — triple Talaq; yes or no. The bench was clear: No arguments on facts, only on the question of law.
The story of Afreen from Jodhpur is similar. She has a masters degree in business administration, her husband is a lawyer. The same old tale of violence, humiliation, adjustments, leaving home, reconciliation, another break up, a Talaqnama, followed by further reconciliation attempts. The final break-up was when, with the help of some local activists she filed a criminal case under section 498A (cruelty) of the Indian Penal Code, and simultaneously, the intervener application in the Supreme Court.
How will the verdict help to secure her rights, where the core concerns are incompatibility, domestic violence and a Talaqnama drawn by lawyers? Almost all earlier cases on triple Talaq which were referred were when a deserted wife had filed for maintenance and the husband had sent the Talaqnama under an erroneous presumption that it would extinguish the wife’s right to maintenance.
While the case may turn out to be a great professional booster for scores of lawyers, the women themselves do not see it as a game changer for them. Hindu or Muslim, the core concern is the same — women lack agency. They cannot enforce their rights, whether Quranic or statutory.
Divorced Muslim women have an additional right under the Muslim Women’s Act of 1986 — the return of Mehr, belongings and a lumpsum settlement. The tragedy, none of the aggrieved women were aware of these legal remedies. The media and some women’s groups converted these core concerns into a hype over triple Talaq, an issue already settled in Shamim Ara in 2002.
It was refreshing to note that several interventions endorsed this position canvassed by Majlis, for nearly two decades, despite the shrill demand for a “ban” on triple Talaq during the campaign period. The recent article by Kapil Sibal (‘Beyond triple Talaq’, IE, May 26) also attempts to move forward from the position he had argued before the Court: Non-interference in minority affairs, to protecting the economic rights of women, a position reflected in our written submissions before the Supreme Court.
While this is welcome, the affidavit filed by the AIMPLB reaffirms that while they are willing to take a circuitous route to wean out triple Talaq, they will remain adamant regarding declaring it invalid, and thus extinguish the scope for the debate to move further: To women’s economic rights.
Flavia Agnes is a legal scholar and women’s rights activist. She is founder and director of Majlis, an NGO, which was allowed by the Supreme Court to file written submissions in the triple Talaq case