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Talaq, Talaq, Talaq: Marriage Is a Serious Matter

By Garga Chatterjee

August 24, 2017

On August 22, the Supreme Court of India’s five judge bench ruled that instant triple talaq was illegal and unconstitutional. This is but a small change in the Muslim Personal Law in the Indian Union which needs much more comprehensive reform.

In the 1950s, several laws were passed by the Parliament of India to codify and reform Hindu personal law in India. Muslim personal law was left untouched. The run up to this verdict, and its aftermath has been pounced on by media agencies as a public discussion point.

In this case, the religious group in question was the minority. These were the Hanafi law following Sunni Muslims of the Indian Union who’s practices were in question.

The large swathe of British acquired lands of South Asia was partitioned in 1947. This resulted in two religious communally majoritarian states, and as of 2017, three communal states. In each of these entities, what is common among the constitutions is that everybody has the freedom to practice their religion.

What is not common is whether a particular religion in an official sense has some special status in the state — though unofficially all the three states are religious majoritarian states. This was “Hinduism” in the Indian Union and “Islam” in Pakistan; and later also in Bangladesh.

In each of these cases, there exists in practice a hierarchy in a religious sense about who is a first class citizen and who is not. This has important implications if you are a first class citizen, that is, the state has been formed tacitly in your name to secure your benefits in preference to everybody else’s.

Calculated Apathy

Then the state speaks in the voice of that first class. That voice is not neutral. It can never be neutral but it is dangerous and sociopathic when it actively marginalises minorities who have no power to defend or to lean on. This marginalisation can take many forms.

The commonest form of this is not active destruction but the withdrawal of resources and attention.

For this can be called the policy of calculated apathy. Here, the minority is left as to stew in its own soup.

In this way of looking at things, an analogy is helpful. The first class citizen is of a particular religious identity. That first class citizen’s religion and its various forms or whatever goes under the name religion can be reformed by parliamentary will.  It will be considered as if they are the state’s own children.

When you have your own children you are concerned about their future. You have empathy and concern.

The practical meanings of such empathy and concern are resources and attention from the political class, the media class, the judicial class as well as civil society, considering it a priority question.

Minorities face harshness on most matters except those about their internal religious matters. This lack of harshness is a lack of considering the minority as own.  This non-interference is neglect. It is the opposite of freedom.

The religious majority is like the own child. It’s concerns are everybody’s concerns and it can be reformed on a priority basis. However, for the religious minority in any such entity who are left to stew in their own soup, such privileges are not available.

They have to shout much shriller than others to make their voices heard, or hope to become a pawn in a political game like the Triple Talaq issue became one in the hands of the BJP.

When that happens, a sordid display of opportunism and cunning is seen. The party of anti-Muslim mass killings of Gujarat also doubles up as the friend of Muslim women.

Once A Minority, Always A Minority

The religious minority is considered somebody else’s child in this post-partition sub-continental religious national imaginary. Thus, Muslims of the Indian Union are children of Pakistan by definition. In certain areas of the Indian Union, Muslims also tend to be children of Bangladesh.

The Indian Union is only holding other people’s children indefinitely and as infants — a crèche of sorts. One does not care for and hence think of reforming the children of other’s as one does for one’s own progeny.

Some significant sections of the political class within the Indian Union consider the continued presence of these other’s children as the unfinished project of partition.

This is true for Hindus in Pakistan and particularly true to this day for Hindus of Bangladesh. Pakistan became almost minority free in all practical purposes quite soon after its formation.

The anti-Hindu narrative, though used to inculcate religious hate ideology within the Muslim population, has relatively less practical implications when compared to the Bangladesh situation, where Bangladeshi Hindus are still a non-negligible proportion of its population.

Hindus of Bangladesh and Pakistan belong to India by the same logic and this is a charge they often hear — of dual loyalty.  As far as this discussion goes, they are considered not even the step-child but the child of someone else, whose long-term well-being is not your concern.

Hence, if there are serious situations within it, if there is no particular political mileage to be gained, it can be left to fester because you do not beat up another person’s child.

This is dangerous logic because the practical meaning of “not beating up” course means lack of state support and attention to problems. Those problems have real consequences and real victims.

The lack of attention means the state’s indifference to the plight of the Muslim victims in India.

Thus family and inheritance laws that are more regressive than the ones prevalent in Pakistan and Bangladesh govern them.

Similarly, Hindus of Bangladesh are governed by much more regressive laws compared to those that the Hindus of the Indian Union live by. Often, this even means no law.

Till recently, marriages of Hindus in Bangladesh were not registered and divorce has no place in the Hindu personal law of Bangladesh. This is also a legacy of Partition.

We often think of Partition as an effect of “religion” — as is turns out, religion indeed has shaped Partition, but Partition has also shaped religion in South Asia.

Garga Chatterjee is a political and cultural commentator.