Time to outlaw triple talaq in India, says Bharatiya Muslim Mahila Andolan

We have seen positive developments in recent times where women belonging to different faiths have attempted to reclaim the religious space from traditional male forces. The response from custodians of religion and those representing institutionalised religion has been on expected lines. They claim sole right to speak on religious matters. Once again, the courts have come forward to prevent gender discrimination and in support of the women who are fighting against it. The response of the political class cutting across party lines and various governments has been cautious or ambiguous or, at times, openly patriarchal.

Needless to say, it is the ordinary Indian woman who has come out in the open challenging what has been a coalition of patriarchs from the religious leadership and the political class since 1947. Restrictions on the entry of women at Sabarimala, Shani Shingnapur and Haji Ali dargah or practices such as triple talaq are just a few examples of use of religion to further patriarchal interests. The defending arguments cutting across faiths fall within the familiar range of customs, traditions, attributes of deities, divine injunctions, etc. But women from all religions are determined to demand justice.

Muslim women's demand for reform in personal law has gained momentum in the last few years. There is no codified personal law for Muslims that can answer the needs of issues such as age of marriage, mehr provision, triple talaq, halala (the rule requiring a woman divorced through triple talaq to marry another man before she can re-marry her ex-husband), polygamy, custody of children, inheritance and property rights.

The barbaric practice of triple talaq is prevalent in Indian society even though this practice has no Quranic sanctity. Quranic injunctions provide for a thought through and mediated action lasting over 90 days, the failure of which alone should lead to divorce. In Muslim countries the world over such as Tunisia, Morocco, Jordan, Syria, Iran, Pakistan and Bangladesh, triple talaq is not legal. So why do we in India practice it? In the internet era, we are seeing talaqs being given over phone, email and SMS! This unilateral and instant talaq is not valid as per the Quran and yet, Indian Muslims continue to practise it.

What is the accountability mechanism against such unjust and arbitrary practice? The answer is none, thanks to the way common sense has been manufactured in our society over this issue. The conservative personal law board is fighting to preserve this barbaric practice instead of abolishing it by law. These patriarchal custodians seem to be oblivious to the suffering of women and children as they seem to be oblivious to these violations of Quranic injunctions. Similarly, in the case of halala, which also has no validity as per the Quran, they seem to not be concerned at all. It is violations such as these that have forced women to stand up and fight for their rights. Saira Banu has gone to the Supreme Court because none of the custodians have tried to help her obtain her Quranic rights.

In November 2015, we released a report, No More Talaq Talaq Talaq: Muslim Women Call for an End to this UnIslamic Practice, wherein we carried case studies of women belonging to different states who have undergone tremendous suffering owing to triple talaq. These women were all rendered homeless and destitute along with their children, with no maintenance or support being offered by the ex-husband. It is high time this practice is outlawed.

The fight by women is unnerving the patriarchal custodians. There are undercurrents and, in some cases, open statements about how the courts have no business to intervene with what is being presented as 'divine'. There are several critical questions that demand answers. Laws are man-made by definition; they are not divine. Which divinity appointed these patriarchs as spokespersons?

In the Sabarimala matter, the Supreme Court has rightly posed the question about what happens to the faith of female devotees. Is spirituality restricted to the men of the world? If the Vedas, Upanishads and the Quran do not discriminate, then why do these male bodies do so? The observations of the Court provide a lot of hope for women's entry into the mazar at the Haji Ali shrine. The right to religious freedom of a devotee is protected under Article 25 and 26 of the Constitution of India. But where does the Constitution say that guarantees of religious freedom are meant only for male citizens? This would be a very restrictive and contrived definition of the right to religious freedom. If men can go to the sanctum sanctorum in Shani Shingnapur or Haji Ali dargah, then so can women.

An attempt is being made to create a false debate between religion and Constitution, as though the two are at loggerheads. A leading Muslim organisation of male clerics has said that Mohammedan law is founded on the Holy Quran and therefore cannot fall within the purview of Article 13 of the Constitution upholding gender equality.

But is Mohammedan law as practiced in India at all based on the Quran? If so, why does triple talaq take place so rampantly? Why do barbaric incidents of halala happen? It is certainly not Quranic law which is in practice.

Similarly, Hindu religious texts don't call for women being barred from entering places of worship. The contention about jurisdiction as to religion or Constitution (that is, which one must prevail) is misleading. It is the misinterpretations and distortions that have led to discriminatory practices that need correction. It is obvious that male-dominated groups who are in charge of religious places and practices have been interpreting religion to their liking. They are imposing customs based on their own patriarchal and conservative mindsets. Most of them are fundamentally discriminatory towards women. They have succeeded in passing off patriarchal customs and traditions as religion. This needs to be contested on a sustained basis. Successive governments since 1947 have played up to this section in direct contravention of constitutional obligations towards gender justice and equality.

It is intriguing that those in government somehow seem to assume that ordinary Indians from different backgrounds will agree to abide by this long-standing discrimination against women in the religious domain. They need to come to terms with changing mindsets in a continuously-evolving society. It is important to note and celebrate the historic development where women are coming forward to fight so heroically. And their supporters include men from cross-sections. The bigwigs of all political parties need to reflect on their own patriarchal mindsets and evaluate the changing scenario in our country.

India is a democracy with citizens who are equal irrespective of gender, religion and caste. The Constitution beautifully balances secularism, gender justice and religious freedoms. We need a discourse around what comprises the essentials of various religions. This discourse must be a plural one providing space to views from different sections of society and should not be restricted to male-dominated religious bodies.

There should be room for women's voices, diverse scholarly interpretations, ordinary citizens' thoughts, reformatory voices from all faiths and all who are interested in making the world a better place. Elected representatives must facilitate this process rather than joining forces with patriarchal thinking, as has sadly been the case so far.

(Zakia Soman and Dr Noorjehan Safia Niaz are co-founders of the Bharatiya Muslim Mahila Andolan)