SC to examine if Islamic laws governing marriage and inheritance violated the fundamental rights of women

September 05, 2016 06:44 AM
Muslim women in Burqa

New Delhi: Regressive, backward, patriarchal, shameful — even these four strong words are woefully ineffective if one has to explain the defence by that archaic organisation — The All India Muslim Personal Law Board’s — of the validity of triple talaq before the Supreme Court last week.

In a disgraceful attempt to support the practice (triple talaq), the Board told the court that if it is discontinued, a man could murder or burn his wife alive to get rid of her. It added that divorce instead of triple talaq could damage a woman’s chances of re-marriage if the husband indicts her of loose character in court.

The debate around triple talaq had received a shot in the arm earlier this year when a victim, Shayara Bano of Uttarakhand, filed a petition in the apex court seeking a ban on the practice. She had also challenged the practices of polygamy and nikah halala, which mandates that a woman has to marry another man and consummate it if she and her divorced husband wish to get back together.

The Board also had the audacity to tell the apex court to desist from taking a stand on the issue because the principles of marriage, talaq and polygamy are interwoven with the religious and cultural rights of the community and those cannot be touched upon on the ground of violation of fundamental rights.

The Supreme Court on June 29 decided to examine if Islamic laws governing marriage and inheritance violated the fundamental rights of women and then take a call on how far it can intervene to modify the existing laws.

India has separate sets of personal laws for each religion governing marriage, divorce, succession, adoption and maintenance. While the Hindu law overhaul began in the 1950s and continues, activists have long argued that Muslim personal law, which has remained mostly unchanged since 1937, is tilted against women.

The Muslim Personal Law (Shariat) Application Act, 1937 allows a man to divorce his wife by uttering divorce or talaq thrice in one sitting. He can also send a letter with talaq written three times in it. India is one of the few countries that still recognises oral triple talaq.

In recent years, this has taken an altogether new turn with men pronouncing triple talaq over the phone, and by other ‘modern’ mediums (strangely the Board allows these mediums when it abhors modernity/social reform) --- by SMS, email, on Skype, WhatsApp and Facebook.

 A survey of 4,710 Muslim women in 10 states by Mumbai-based Bharatiya Muslim Mahila Andolan in 2013 revealed that 92% wanted a ban on oral and unilateral talaq.

A high-level committee set up in 2012 to assess family laws has recommended “a complete ban on oral, unilateral and triple divorce”, amendments in the Dissolution of Muslim Marriage Act, 1939 to make triple talaq and polygamy void and payment of maintenance mandatory after separation or divorce. Last July, the panel submitted its report to the government, which is yet to take a call on it.

Activists say that there is a “nexus between the male-dominated Muslim clergy and elected representatives” which allows Muslim men to interpret the laws to suit themselves. This nexus needs to be broken, and it is not possible until the highest court of the land steps in and redresses the situation once and for all.


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