Triple Talaq Verdict: Battle won, war continues

As the country cheers for Supreme Court after its historic judgment, Amit Ranjan talks about the case of triple talaq and double jeopardy of Indian women

The Indian political class suffers from a serious lack of political will, and a curious surfeit of political thrill. Successive governments fail to legislate on women’s issues – women’s reservation bill being one of the prime examples, but are the first to flash V signs when the civil society achieves anything on its own. The Chipko movement of Garhwal wasn’t initiated by the government, neither was the recent case against instant triple talaq. Agents of the government were abuzz on twitter congratulating the prime minister for his victory against triple talaq, while the names of the five women who filed the case still remain largely unknown.

Shayara Bano, Ishrat Jahan, Gulshan Parveen, Aafreen Rehman, and Atiya Sabri are the heroes of this script – who rose against the odds of situations like harassment over dowry, talaq over phone, their children being taken away from them, etcetera, to fight it out against the patriarchal clergy through a slothful juggernaut of the State. Bharatiya Muslim Mahila Andolan (BMMA) was the sixth petitioner in the case. The government has been crying hoarse over this issue (and has remained silent over Women’s Reservation Bill or the need for judicial reform to bring speedy justice to divorce victims – Hindus or Muslims) but would not move to legislate on the issue, for it needs a carrot to dangle for polarization of the electorate.

Kolkata: Ishrat Jahan, one of the petitioner in the triple Talaq case on which the Supreme Court passed a judgement, talks to her lawyer Nazia Elohi Khan (L) in Kolkata on Friday. PTI Photo by Swapan Mahapatra<br />(PTI8_25_2017_000160B)
Kolkata: Ishrat Jahan, one of the petitioner in the triple Talaq case on which the Supreme Court passed a judgement, talks to her lawyer Nazia Elohi Khan (L) in Kolkata on Friday. PTI Photo by Swapan Mahapatra
(PTI8_25_2017_000160B)

It’s still not out

It must be iterated that ‘triple talaq’ is not out; it is only talaq-e-bidat or instant triple talaq which has been declared unconstitutional. It is also noteworthy that Pakistan declared this form of talaq unconstitutional way back in 1961; and the newly formed Bangladesh also stuck to this reform. The Sharia law has the provision of a three-month period of iddat during which arbitration and attempts at reconciliation are possible. When it is a case of mutual divorce, it is a fair system, but where the woman has no means of subsistence, it still remains deeply problematic. This takes us back to the Shah Bano case of 1985 (Shah Bano versus Mohammad Ahmed Khan).

History’s the witness

Shah Bano, a 75-year-old woman, with no source of income, was divorced by her husband of 50 years and she went to the court. The case was fought within the provisions of CrPC Act 125 which provided a maximum of Rs500 a month to a divorcee destitute. The lower court awarded Bano a compensation of a measly Rs25 a month, and the High Court raised it to a mysteriously calculated amount of Rs179.50. While the case was being decided through the Criminal Procedure Code, various actors jumped into the fray to the dismay of the poor woman. The Muslim clergy rose up saying state intervention in religious matters was unacceptable; the court also wrote that the religious leaders need to reform Muslim personal law – thereby creating religious polarisation, with insinuating that one personal law may be better than another. The Rajiv Gandhi government, with a massive mandate of 415 seats in the Parliament of 545, eventually bowed down to the powerful clergy and legislated that Section 125 would not be applicable to Muslim women.

In the following year, in 1986, in a ghastly performance of perversion, a teenager Roop Kanwar was committed to the funeral pyre of her deceased husband, at Deorala village in Rajasthan. I use ‘committed’ because it clearly was not her volition – she was drugged and dragged to her doom. What should have been a site for criminal investigation became the site for a Sati temple, and the trust associated with it minted a fortune in no time, selling doctored pictures of the Sati smiling beatifically before dying.

The Rajputs of Shekhawati region asserted their right to tradition and religious freedom, and renowned scholars like Ashis Nandy and Parrington upheld the act of terror on a woman as honourable, and a case of tradition rising against onslaught of modernity. Radha Kumar tells in her book, The History of Doing, that Rani Sati Sarva Sangh controls 105 Sati temples – many of these temples were not Sati temples but rechristened so in wake of a new popular sentiment.

A later article tells that the RSSS controls as many as 250 Sati temples, and that Sati cases have been reported as late as 2006. Instead of bringing the in-laws of the deceased girl to a murder trial, and booking the builders of that trust and temple for malafide intention, profiteering and politicking; the Parliament legislated to equate Sati with suicide. If one burns, one goes to hell; if not, one goes to jail. The writing on the wall is clear, one need not elaborate on it. Two women – one 19 and another 75 – consigned to the flames of religion and religious freedom. Did anyone seek what their idea of religious freedom was?

Fair, and not lovely

The nature of secularism practiced in India calls for a serious debate. It seems to mean fair representation of various religions in the civil society. The fair clearly turns to unfair representation, with gender not being a consideration as to who controls matters of religion. The Western notion of secularism – and it should be wished and washed away as merely Western, for it is also a force of history, of modernity – is of a civil society with a scientific temper that builds a wall against the Church limiting the latter’s powers to its own domains.

The debate whether triple talaq is essential to Sharia shows how courts can also be progressive only within the larger frame of patriarchal discourses. On the other hand, the same Supreme Court ruled, in its verdict on Right to Privacy, that no matter how miniscule a minority, they retain their right, and all the more so. Doesn’t essential in this case insinuate a majoritarian idea, or the idea of the powerful? That it has turned out to be non-essential in the court’s view by a slim majority of 3-2 is a relief, but what if they had found it out to be essential?

As Simone de Beauvoir suggests in her The Second Sex, social ontology itself needs to change – that is how we think we are being, how we think we are becoming, in order to change the ideas of gender as prevalent in the society. It is time to render instant triple talaq to the incumbent political class of the world, perhaps.

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