By Saumya Saxena
May 30, 2017 1
When our only argument for protecting the custom of triple Talaq becomes that “not enough people are affected by it”, we clearly need to rethink what we understand by the rule of law and democracy, and perhaps recognise the colonial undertones of the logic of “non-interference” in the face of injustice. In a recent op-ed in The Indian Express (‘Unimportance of triple Talaq’, IE, May 29), we find a rather luxurious use of statistics to make the argument that triple Talaq, in fact, occurs extremely infrequently (0.4 per cent reported cases in a quoted survey). Clearly, now not only do surveys place “your stats versus mine”, but also use data to trivialise the very real struggles of many women.
It is certainly true that triple Talaq is only the tip of the iceberg — focusing merely on the “spontaneity” or the haste in which a divorce is given serves to blur the larger problem of how such divorces are unilateral, an exclusive privilege of men. What makes this divorce “arbitrary” is not simply the spontaneous utterance of the word “Talaq”, but the problematic notion that women are required to qualify their decisions under the codified provisions of the Dissolution of Muslim Marriages Act, 1939, whereas men are not. The grounds for divorce for women are clearly laid out — men need not cite any.
Thus, simply de-recognising Talaq-ul-Bidat and encouraging Talaq-e-Ahsan or Talaq-e-Hasan, which takes place over three months for men, still doesn’t address the fact that women lose their right to alimony and maintenance if they initiate divorce themselves under Khula.
The problem is hardly exclusive to Muslim personal law. It stretches across religious law codes. For instance, till 2001, under Christian divorce law, men could seek a divorce on the grounds of adultery, but Christian women were required to prove not just adultery but cruelty as well in order to get a divorce. Under Hindu law, even after codification, it was not until 2005 that inheritance and succession law anomalies were addressed. There remains scope for much more legal reform in that direction.
Thus, trying to stall the triple Talaq debate by citing small numbers is simply diversionary. The logic of “hardly any effected parties” was precisely what was relied on when many argued in favour of keeping Section 377 intact; homosexuality till date remains a criminal offence. If anything, the fact that the provision is hardly ever used is evidence of its redundancy in this age. While the fear about the debate becoming embroiled in politics is legitimate in times when lynch mobs decide menus and laws threaten to criminalise certain food preferences, the triple Talaq phenomenon is different.
For a substantial period during the debates on personal law, one of the most oft-repeated statements has been about letting “reform come from within”. What we are currently seeing is a difficult, but healthy conversation between co-religionists about the interpretations of the Quran and Hadees. Women who had long been excluded from membership to the clergy across religions are now not simply relying on their “constitutional rights” or protections from the state. They are instead challenging the monopoly of men over matters of religion. This is a moment that marks the emergence of a new Muslim woman, who does not cower behind an all-male clergy that dictates to her, her own religion.
It is heartening to see two women recently appointed as Qazis in Jaipur; one glass ceiling less for the women of India. Women are no longer faced with the awkward and unfair binary between “rights and religion” to choose from. They are demanding both. Remember that Shah Bano, the woman whose case (1985) triggered a storm that led the judiciary to enter the domain of the legislature and demand a uniform civil code, had in fact withdrawn her case, much before the Muslim Women’s Protection of Rights on Divorce Act, 1986 formally overturned the Supreme Court judgement. Given this backdrop, it is extremely important to acknowledge that the new women’s movement is pulling off a bigger achievement, of attempting to salvage religion from the clutches of patriarchy. The numbers game must be rejected here. If the custom in question was sati, not triple Talaq, would we still be making the argument that “very few” are affected by it, and therefore, it should be considered beyond the realm of judicial interpretation or legislative intervention?
While legal interventions certainly cannot be the finish line of feminist pursuits or social reform more generally, we cannot write off any form as discrimination as too minor to deserve a movement of its own.
Saumya Saxena has a PhD in legal history from Cambridge University. She has worked with the Justice Verma Committee in 2012-2013.