Shortcomings In The Triple Talaq Debate

Once again Muslim women are caught at the centre of a dissension. The visual media is filled with images of burqa-clad Muslim women presented as the suffering victims of the draconian laws of the community. The debates in the media generally present a highly polarized environment, where ‘neutral, secular, liberal progressive’ voices demanding justice for Muslim women are placed in opposition with ‘misogynist and patriarchal’ Muslim men. It becomes imperative in this conundrum to raise the questions: Whose interest does this all too familiar and polarized binary serve today? Is it not a matter of concern that though the debate is all about Muslim women, their voices are not discernible as active agents negotiating a contemporary moment in their lives and in history?  On the contrary, their positions are attributed to either being indoctrinated by a pre-modern patriarchy or as too simply swayed by western ideas of freedom and liberation.

It is truly unfortunate that Muslim women’s identity is highlighted only in terms of personal laws, especially after the Shah Bano case. This overarching focus on personal law presents any improvement of Muslim women’s lives as contingent only on the reform of personal laws. By raising the question of personal laws and of community-binding the larger implications of culture, class and region on the lives of Indian Muslim women are deferred. Muslim women themselves have come out in large numbers against the present campaign on Triple Talaq to say what is much more urgently needed is empowerment and education.  But their voices do not receive larger audience.  The recent appearance of articulate practicing Muslim women challenging ‘progressive voices’ has been written off as ‘motivated by patriarchal forces’ or ‘indoctrinated.’  But it is not as simple as that.  

The figures related to “victims” of Triple Talaq over the past ten years or even a comparative study of this practice as experienced by women of forward as against poor economic background are likely to be telling. The figure presented by Bharatiya Muslim Mahila Andolan, a major party in the debate and the group that has appealed to the government for a codification of Muslim laws is often misquoted out of the context in the media debates.  BMMA presents a report based on the survey of a primary sample of 4710 Muslim women across ten Indian states, out of which 92.1% wants a ban on Triple Talaq . Media debates highlight this as the 92.1% of the Muslim women in India demanding a ban on Triple Talaq.

And the old sequence emerges.  The BJP has already used the demand to push their uniform civil code agenda and the media plays into this game. On the other side, the community lines up against this and the insecurity results in a mobilization of the crowd to ‘protect the Shariah’. In the process social and political issues transform into those of belief and religion.

There is a lack of serious engagement with the existing debates on Personal Law reforms in this media enhanced image of “saving poor Muslim women.”  Concomitantly there has also been a thorough disregard in these debates for the many attempts by Muslim women to address gender and justice within the community.  The current debate also underplays the legal engagements Muslim women have had with the legal system of the country after the Shah Bano case of 1985.  Flavia Agnes, the feminist lawyer and activist and many others have argued that there is no need for a ban on Triple Talaq as there already exists court orders against Triple Talaq as in the 2002 Shamim Ara case.

Lila Abu-Lughod, an anthropologist writing on Arab women for the past thirty years, stresses the need for rich contextual explanation rather than generalizations about Muslim women’s hardships. She details the concerns of particular institutions and individuals in promoting the campaign of ‘saving Muslim women’ in her work Do Muslim Women Need Saving? She elaborates on the manner in which all kinds of interference including military invasions are justified in the name of rescuing Muslim women from Islam, focusing on the example of American military invasion of Afghanistan.

Historically, India doesn’t have a clean record in saving Muslim women, whether during partition violence, the aftermath of police action in Hyderabad or the Gujarat and Musaffarnagar pogroms.  As studies and reports have shown, our record of serving Muslim women in terms of education, healthcare, security and means of sustenance is also poor.   Second, the current debates invariably highlight the idea of a single and static Islamic law. They do not take into account the diverse views of heterogeneous Muslim communities regarding reforms in personal law. In this regard, distinctive opinions exist among the reformist sections of the community; modern reformist movements and Islamic political formations like Salafi, Wahabi and Jamaat-e-Islami sections of Indian Muslims ever since the 1980s have voiced the idea of reforms.

 The women’s wing of Jamaat-e-Islami Hind-Kerala organised its first ever conference on “Women Empowerment for Social Revolution” on January 24, 2010 in Malappuram, with participation of more than one lakh Muslim women. Along with condemning vicious practices of dowry and lavish weddings, the conference resolved to address the question of restructuring personal laws adhering to moral and ethical values of the religion and the interests of Muslim women, consulting the madhabs and ulema. The appeal was to AIMPLB and the scholars of Islam.

True, many of these initiatives have not resulted in developments that have productively worked with the diversity of Islamic engagement among various sections of Indian Muslims. The major deterrent, it should be noted, has been the continuous political insecurity that Muslims as citizens of India face. A minority at the receiving end of right wing violence, a community whose identity is under threat may not have the privilege of prioritizing discussions about personal law over struggles for physical—and cultural—survival.

Sunni Muslims, who constitute the majority Indian Muslims, with their four madhabs, following different fiqhs (Islamic Jurisprudence), disclose a tradition of diverse debates and discussions when it comes to practices. They differ in the methodology they use to derive their rulings from the Quran and hadith.  Unlike the way it is generally portrayed, Islamic Jurisprudence is a constantly refashioned and flexible system(s) of thought. There have been conferences, and dialogues across these different groups in this regard, especially to reform and to codify Muslim Law. There have been attempts to point out the disparity between Shariah as practiced in different countries.

Unfortunately, through the polarization it creates, the current demand has closed off all the possibilities of engaging with the ongoing discussion in the community. Turning defensive, even the Islamic groups who have consistently debated the idea of legal reform have decided that external agencies should not be involved, and state interference with Muslim personal law must be resisted.

Also, the invocation of the authority of the Quran and the terming of Triple Talaq as “unIslamic” creates some disturbing parallels especially when this comes from a feminist platform. If getting back to the scriptures and a strict adherence to religious text becomes the demand of feminists, the parallel concerns of the Hindu Right cannot be neglected.While all sections of Islamic practices stick to the Quran and hadiths as primary texts, interpretations are important in many practices. Besides the Quran there are Sunnah (practice and explanation from the prophet) Ijma (consensus of the learned) and Qiyas  (analogies) as sources of Shariah in the Sunni practice.  The jurisprudence also accords with istishab (Presumption of Continuity) urf (custom of a community), istihsan (preference for particular judgements in Islamic law over other possibilities)and maslahah mursalah (unrestricted public interest which are not mentioned in the Quran and Sunnah)which would suggest diverse sources for Shariah. So the demand for a reform, if it has to happen should come from contextual readings and consistent studies on the effect of this on the lives of Muslim women in India. This also should seriously engage with the opinion of Muslim women who follow religion and practice it.

Muslim women supporting AIMPLB have spoken to the media regarding their consistent stand to adhere to community platforms for reform. Dr. Asma Zahra, a member of the Personal Law Board, in one such press conference conducted by Muslim Mahila Research Kendra, on April 2^nd, 2016, raised a valid question that many of us cannot evade. Why is it that Muslim women who have given up hijab or challenge the community gain wider recognition than Muslim women who remain part of the community and observe its practices?

When a large number of the community comes out and says divorce among Muslim women or sufferings of Muslim women due to divorce or polygamy is not as rampant as in other communities, surely the claim demands attention.  Is it not possible that this might actually be so? Why must the majority always decide for the minority?Indian feminism has successfully emerged through critiques raised by Dalit women, accepting their perspective on ‘speaking differently.’ A viable feminist approach cannot de-historicize Muslim woman as a transcendental subject of gender negating her immediate religious and political realities. Gender is always contingent; located historically, materially and socially. Under the current realities of Muslim existence in India, clamour for gender justice for Muslim women cannot exclude Muslim men as part of their community identity and as equal participants in their political destiny.The faith Muslims attempt to protect is not an ahistorical spirituality, but the spirituality whose symbolic markers are constantly wiped out and demolished from the face of the modern nation state.

The newsroom debates and media discussions have given birth to a warlike situation where Islamic ways of life and Shariah are presented before an audience waiting to lynch a community and its followers. The binaries in these debates are accentuated in terms of clothing, language and so called modern values.  Religious visibility of the minority is the most contested factor in contemporary debates on citizenship all over the world. In such a context, projecting the burqa-clad women as ‘indoctrinated’ by the misogynist- bearded Muslim men have become the general trend of the current media practice. While the difference is accentuated so much, the uniformity and revival of Hindu cultural practices pass as concerning the distinction of Indian culture and even as modern and refined.

This spectacle of the archaic, pre-modern Muslim serves well to divert attention from the hunting down of Muslims by Hindutva forces and the need to create public sentiments against it. The Hindu right, critiqued widely over the murder of Mohammad Akhlaq, and also for targeting Muslims, was gifted with an appropriate parallel in the spectacle of misogynist Muslim men, magnified to disproportionate size, who represent the community in the public sphere, and who are now highlighted as the “Muslim right” in public debates.

As a practice that does not take the consent of women, Triple Talaq appears to be pre-modern and not befitting of a modern society, and this is the ground from which feminists oppose the practice. Many Islamic schools also treat this as unIslamic as it is irrevocable. Interestingly, Triple Talaq (Talaq ul Bidaat) is not the only opted form of divorce among the Muslim community.  There are other forms of divorce- the Talaqul Sunat, namely Talaq  Ahsan, and Talaq Hasan, commonly opted by the practitioners. The community also has options of Fasq and Khula where divorce is granted at the woman’s behest.  It is said that since the process and procedures for Fasq and Khula are more complex, Qazis and family elders are known to intervene to arbitrate and then negotiate with the husband and make him pronounce the Talaq.  I have come across many such instances when Talaq is granted at the woman’s insistence.  The Muslim community does not stigmatize divorce though it is treated as a last resort.  Modern divorces, even in the most advanced families, become tortuous if demanded only by one party.  Often, women go through several hurdles to get a divorce and settlement. Hassle free divorces within the community may not be always be evidence of a community’s backwardness; it could be regarded as willingness to treat marriage as a contract and not as a sacred institution that needs to be protected even at the cost of personal suffering.

While Triple Talaq has been treated as archaic and misogynist, the facts and figures of Muslim women who are affected by it over domestic violence and unemployment need more study and more clarity. Also the impact of the ban on Muslim women’s progress, the immediacy of this issue to other questions pertaining Muslim women’s lives etc. need much more detailed analysis.

Further, if there is a Supreme Court judgment already existing, the speed with which this campaign grew in strength demands cautious rethinking.  Given the present mob violence against Muslims and Dalits, Hindutva has lost its chance with the liberal intellectuals of the country.  In this framework, “the Muslim-Right,” as labeled by many engaged in this debate, provides a camouflage that will help the BJP through electoral gains and create international solidarity.  This discourse deflects the public sentiments against Hindutva men and highlights Muslim men as the misogynist, uncivilized, patriarchal other.  We should remember that feminist and postcolonial analyses have shown how the ban on Sati and many other reforms in the name of women had larger colonial motives related to sovereignty and the patriarchal agenda of reformist men.

The two decades after Babri Masjid witnessed more and more Muslims turning to community as recourse in a context where the state had tremendously failed them. Religious markers and faith have permeated the lives of Muslims subsequently.  More and more modern, young Muslim men and women adhere strictly to Shariah and its customary practices. We find them in universities, intellectual forums and in the youth wings of Muslim organizations, as much as they tread all walks of modern Indian public life. They participate in anti- caste movements and political struggles across the nation. The presence of this group has been oblique in the current debate. A number of young Muslim scholars in academia are engaged in fruitful research concerning the legal, theological and political aspects of Muslim lives in India. While the mainstream media completely ignores them, it is particularly important that their voices and lives need to be addressed in the discourse. While adhering to Islamic rules, they also suggest modalities of engaging with the contemporary world and the complexities of Muslim modernity. The presence of modern, English speaking, Burqa-clad women vociferously raising political concerns are unprecedented, but characteristic of the larger changes in the community.  Likewise, a major group of young practicing Muslim men supportive of their partners and thinking in terms of shared labour and responsibilities in running the family is not unusual.

This is precisely where the larger sentiment of hurt emerges as a response, while portraying a community as pre-modern and misogynist in the current debate on Talaq. Larger visibility to this youth is one agenda that community can explore and highlight as against presenting interlocutors making crude, misogynist statements. Likewise, the democratic platforms in the country need to have more productive engagements with the youth of the community and not just marking them off as unfit in a secular public sphere.

The political existence of Muslim women in India is troubled: as half widows, victims of mass rapes, as mothers of disappeared children, as widows of men killed in state sponsored violence including custodial murders, and as victims of mob violence in genocides, Muslim women are at the receiving end of mainstream violence and extremism.Community is the only refuge for many of them, as the state and the judiciary have consistently failed them. Likewise, Muslim men have been victims of the ‘black laws’ of Indian State-TADA, POTA and UAPA along with many other draconian legal provisions over the years. If there is resistance and insecurity among the intervention of the state into personal laws it is symptomatic of this inability of the state to adhere to its constitutional responsibility to be impartial, while dealing with the Muslim citizens.

It should be noted that when it comes to Muslim women and internal patriarchy, one thing that the current moment has achieved is mobilizing practicing Muslim women.  They have come out in large numbers and the community has begun to realize the need of women to speak for themselves. If this momentum is maintained, the opening up the internal spaces of religion for women to be visible agents is a gain for the community. Let them speak and arbitrate, negotiate and live their lives. Let them say openly and continue to say what they want, responding to the visceral realities that circumvent their lives. Let the progressive sections of the society listen to them. After all, if there is a reform, it is meant for them! 

Sherin B.S is an assistant professor in the Department of Comparative Literature at the English and Foreign Languages University in Hyderabad