By Flavia Agnes
25 May 2016
In the last month or so, ever since news of a Public Interest Litigation against instantaneous triple Talaq filed by 35-year-old Shayara Banu from Uttarakhand’s Kashipur district made headlines, there have been a slew of news reports about the validity of the triple Talaq and the harm caused by it to women and articles by Islamic scholars calling for a ban on this practice and terming it un-Islamic.
Many reports have also provided us with graphic details about the violence Banu was subjected to since her marriage and on the plight of Muslim women who are routinely served a Talaqnama by post that ostensibly leave them high and dry, with no recourse whatsoever under prevailing statutes.
An Inaccurate Representation
The picture being painted, however, isn’t quite accurate.
Though the violence suffered by most women – physical, mental (in the form of the constant threat of triple Talaq, denial of permission to meet relatives or access to children), sexual (forced repeated abortions, as in Banu’s case), and economic (desertion, non-payment of maintenance) would fall under the purview of the Protection of Women from Domestic Violence Act, 2005, no mention of this statute is made in the numerous scholarly articles or news reports about the violence that Muslim women are subjected to.
The statute secures the rights of women; Muslim women included, to maintenance, child custody/access, residence in the matrimonial home or alternate shelter and compensation for violence inflicted upon them. The procedure for accessing these rights is simple – it requires the filing of an application in a local magistrate’s court, without necessarily engaging a lawyer. The state is mandated to provide women legal aid under this Act.
For years, women of all communities have been approaching these courts, which have routinely passed orders to secure the rights of women of all religions and marital statuses – single, married or divorced.
This statute can be regarded as a step towards a uniform civil code and had been enacted without any objection from the All India Muslim Personal Law Board (AIMPLB) or any other Islamic sect. If domestic violence is a problem faced by many women in India, across the religious divide, then it is logical to assume that this would be the primary legal recourse they would seek to secure their rights. Hence, the failure to link this provision to the current debate on triple Talaq, by Islamic scholars, journalists and experts advocating enactment of a uniform civil code, appears to me a glaring lacuna.
The Rights That No One Talks About
I am baffled that a woman who has been subjected to violence and then deserted has been advised to challenge the triple Talaq sent to her by post, but was not informed about the simple recourses available to her to secure her rights. Is Banu not a victim of domestic violence? Does her Muslim identity negate the routine violence she has endured? What would the response be had a Hindu woman been similarly violated?
By petitioning the Supreme Court, the recourse advised to Banu is a lengthier one. Further, if SC does ban the triple Talaq, would Banu and thousands of other Muslim women like her not have to avail themselves of their rights in a local court?
What also surprises me is the complete silence in these articles and reports about the legal avenues Muslim women routinely take to uphold their rights. While most articles about Banu’s case make a reference to the (in)famous Shahbano ruling of 1985, the impression one may get is that in the 30 years since then, Muslim law has been static, and the only avenues for women are Darul Quaza (Sharia courts) which are seen as patriarchal, parochial, archaic and anti-women. The entire argument for enforcement of the uniform civil code or the codification of Muslim law rests on this premise.
It is almost as though the PIL pending before the Apex Court is the only recourse available to deliver women from oppressive personal laws. Though several articles stress on the need for non-religious (civil) judicial avenues to govern the rights of Muslim women, they overlook the fact that Muslim women approach such courts routinely to secure their rights either under a secular statute, The Domestic Violence Act, or the codified portion of the Islamic law – the Muslim Women (Protection of Rights on Divorce) Act, 1986.
In cases of domestic abuse or oppression, what women need is a competent and conscientious lawyer who is well-versed with existing legal measures and can help them claim their rights, without charging an exorbitant fee – something that is sadly lacking in our country.
Rulings That Have Paved the Way
A brief summary of three landmark rulings that invalidated triple Talaq, upheld the rights of Muslim women to post-divorce economic support and brought far-reaching changes to the Muslim family law in India stresses my point.
In a landmark ruling in 2002 – in the Shamim Ara vs State of UP case– Justice RC Lahoti (who later served as the Chief Justice of India) said that a mere plea of Talaq in response to the proceedings filed by the woman for maintenance cannot be treated as a pronouncement of Talaq. In order to be valid, Talaq has to be pronounced as per the Quranic injunction. The judge described “pronounce” as “to proclaim, to utter formally, to declare… to articulate”.
Around the same time that year, in the Dagdu Pathan vs Rahimbi case, Justice B Marlapalle, presiding over the Aurangabad Bench of the Bombay high court, invalidated triple Talaq by citing the following words from the Quran: “To divorce the wife without reason, only to harm her or to avenge her for resisting the husband’s unlawful demands and to divorce her in violation of the procedure prescribed by the Shariat is Haram (forbidden).” The court declared that a Muslim husband cannot repudiate the marriage at will and has to prove that all stages – conveying the reasons for divorce, appointment of arbitrators and conciliation proceedings between the parties – were followed when the wife disputes the Talaq before a competent court.
Then, in the Daniel Latifi case, the Supreme Court, while upholding the validity of the Muslim Women (Protection of Rights on Divorce) Act, affirmed that a Muslim woman’s right to recurrent maintenance under Section 125 of the Code of Criminal Procedure had been substituted in the Act by the right to a lump sum provision to be paid to her soon after the divorce, within the Iddat period (a waiting period during which a widowed or divorced woman is not allowed to remarry). If the husband fails to make this provision, the woman has the right to approach the magistrate’s court.
These judgements (pronounced by non-Muslim judges) served as the basis for several later rulings that invalidated instantaneous and arbitrary triple Talaq. However, since these and similar cases did not receive media attention akin to Banu’s case, misconceptions about the rights of Muslim women continue to exist.
If only due media attention was paid to the silent reform taking place every day in our courts, and if only those who provide advocacy and support to violated women had invoked them to secure the rights of Muslim women, the erroneous notion that Muslim women have no rights unless the Muslim law is codified or until a uniform civil code is enacted, would not prevail.
Flavia Agnes is a women's rights lawyer and director of Majlis, a forum for discussions and legal initiatives for women rights.