EVER SINCE THE Supreme Court intervened, the regressive practice of triple talaq has been the subject of much debate. The practice grants Muslim husbands in India the unassailable right to unilaterally divorce their wives by uttering the fearful world talaq or divorce thrice at one go. Much like instant coffee or the two-minute Maggi noodles. It’s over in an instant, no recourse, no remorse.
There must be little parallel in the Supreme Court’s history where one matter has been heard under such intense public gaze. Newspaper editorial and op-ed pieces are discussing and debating the issue ad nauseam, TV anchors are ranting in newsrooms, and reporters shouting from on-scene broadcasts with stereotype images of burqa-clad, dewy-eyed divorced Muslim women carrying one weeping child while several others follow, a sad depiction of divorced Muslim women in our country.
These fierce discussions, however, have only managed to reinforce many misconceptions about Islam and the Muslim community. Islam has been projected as a misogynistic religion and Muslims the most barbaric community, especially when it comes to dealing with women. A cabinet minister in the Uttar Pradesh government, in fact, accused Muslim men of using triple talaq “only for satisfying his lust [by] changing wives.”
Media coverage would also have us believe that Muslim women in India suffer from some of the worst forms of discrimination and assaults on their dignity qualitatively different from the women of other communities. It also gives the impression that the simplicity of the Islamic procedure of divorce has made it so rampant among the Muslim community that it warrants immediate intervention by the state. The reality, however, is quite different.
Data collated by a study conducted by the Center for Research and Debates in Development Policy (CRDDP) startlingly reveals that only 0.3 per cent of divorces in the Muslim community is through triple talaq, clearly not the norm and could be on its way out.
Another fact that census data revealed suggests that divorce among Muslims is much lower than in the other religious groups. According to the 2011 census report, out of a total 83.97 million Muslim female population, about 212,000, that is just 0.25 per cent, are divorced. If we analyze the census data along with the CRDDP findings, we will find that only a minuscule 600 Muslim women have been divorced using the instant practice of triple talaq.
Another misconception is that the practice of divorce among Muslims is only guided and shaped by the Islamic injunctions on the subject, completely ignoring the multiple other factors responsible for it. The role played by socioeconomic conditions and other immediate and local societal considerations in guiding Muslim divorce practices have been completely ignored in the discourse. This is a reductionist approach and completely undermines the social context in which divorce takes place.
It is also wrongly repeated that Muslim women have recourse to no legal remedy other than those enshrined in the personal law and hence continue to suffer. This is not true either.
Noted women’s rights lawyer and writer Flavia Agnes has argued that the Protection of Women from Domestic Violence Act, 2005 secures the rights of all women — including Muslim women — to maintenance, child custody/access, residence in the matrimonial home or alternate shelter, and compensation for violence inflicted upon them. Most women shown in news coverage also complained about the demand for a dowry as an important reason for their divorce, which could be addressed under the Dowry Prohibition Act, 1961. These acts, along with other provisions of the Indian Penal Code and Criminal Procedure Code, are routinely resorted to by Muslim women, just like their Hindu counterparts, to fight against the injustices done to them.
Another very important factor that seems to overshadow all else is the popular perception that the practice of triple talaq is the only injustice faced by Muslim women. What about all other more serious issues that these women have to face that do not seem to hold the attention of the public at large? Literacy levels among women are abdominal, almost half of them are illiterate. Among all religious communities, Muslims are the only one to have an illiteracy rate higher than the national rate?
Muslim women’s lack of access to basic health facilities, which is their fundamental right, never gets media attention. The fact that the percentage of the non-working population is highest among Muslims in the country also never gets noticed. According to the 2011 census data, only 15 per cent of Muslim women are working, the majority of them in agriculture and other unorganized sectors. And why do we forget that among various religious groups, Muslims have the lowest living standard with the average per capita expenditure of just Rs 32.66 in a day? These factors also have an important bearing on Muslim women’s exploitation through the arbitrary triple talaq practice, but they never get prioritized.
What is most surprising however is the speed with which the Supreme Court sought to address the triple talaq issue, despite a huge backlog that has seen several other important matters waiting up to a decade for adjudication. There is an impression in the public that Muslim women approached the Supreme Court and thus proceedings in the matter began. But the fact is that the Court while hearing a totally unrelated matter, all of a sudden ordered the registration of a suo motu public interest litigation (PIL) to consider the gender discrimination suffered by Muslim women.
Within no time a PIL was registered and a constitution bench was constituted. The matter was heard during the summer, the proceeding was completed within a week, and then judgement followed. Why don’t we see similar judicial activism on numerous vital petitions pending in different courts dealing with the Hindu Succession Act or the issue of adoption and guardianship?
As of May 1, 2017, there were 60,751 cases pending before the Supreme Court, out of which there were 39 constitution bench matters and 230 referred matters, which also further include many constitution bench matters. There are 43,738 cases that have been pending for more than a year. Against this backdrop, does the triple talaq case not seem to be a matter of misplaced priority?
The real challenge for us is to pull the triple talaq debate out of the political slugfest and to put it in the domain of gender equality. All women must have access to freedom from personal law practices, not just Muslim women, that are arbitrary and unequal. And such freedom must be based upon the Constitution that gives all equal citizenship and not be promoted by a political order that has used religious issues to merely divide and rule.
Also, protests against triple talaq have been primarily led by Muslim women. Which is why, unlike in the Shahbano case, where there weren’t enough protests from within Muslim civil society to challenge the orthodox elements, this time there is a noticeable difference. The Muslim Personal Law Board, in particular, is no longer seen as the sole spokesperson for a community; in fact, it has been exposed as a cabal of mostly male obscurantists and almost forced by sustained public pressure to dilute its opposition to abolishing triple talaq.
This then could be the appropriate moment for all right-thinking secular liberal to reclaim the space vacated in the aftermath of the Shahbano controversy and strengthen the brave voices within the Muslim community who are speaking out against triple talaq. The BJP may well claim that it is standing by Muslim progressives but their stand is misleading.
If there is intent to sincerely end gender discrimination faced by Muslim women, then the government must take serious steps to empower them, educate them and make them economically independent. Mere judicial interventions are not good enough to end such social evil wrapped in religious dogma. It is also not a problem that only afflicts Muslim women but such discrimination is also equally pervasive among Hindu women. There is serious need to approach the problem of gender justice with a holistic view irrespective of whom it concerns: Muslim, Hindu or any other community.