Saturday, June 11, 2016

ANUSHA RIZVI - Media’s Focus on Shayara Bano Betrays an Ignorance of Important Precedents

Over the years, numerous Indian Muslim women have approached the courts to overturn the arbitrary procedure of instantaneous triple talaq. Some of these cases, such as the Shayara Bano case filed recently, catch the attention of the media. Consequently many commentators with little knowledge of Muslim personal laws become interested in the need to reform them.

We are witnessing one such phase where the terms of the debate are pre-decided – it’s Islamic law vs. the secular law, the archaic vs. the modern, the oppressive vs. the civilised – without even a cursory glance at the thousands of Indian Muslim women who file cases in courts for enforcement of their rights under various legal provisions such as the Domestic Violence Act, 2005the Prevention of Dowry Act, 1961 or maintenance under section 125 of the Criminal Procedure Code(CrPC).

Just because a Muslim personal law exists, that does not automatically debar Muslim women from approaching the courts for remedies. This in turn creates a two-tiered system of protection for them which is not available to women of other communities. Moreover, this system reduces the load on our already overburdened judicial system by resolving matters outside the courts.

The Shayara Bano case
After many years during which he physically and mentally abused her, Shayara Bano’s husband sent her a talaqnama in absentia and barred her access to her children. Shayara Bano has filed a public interest litigation to challenge instantaneous triple talaq, polygamy and halala (a practice where a woman who wishes to remarry her husband from whom she is formally divorced has to consummate a second marriage).

The headline of an Indian Express report on April 24 read, “Shayara Bano’s fight against triple talaq”, followed by the subheading: “… She thus becomes the first Muslim woman to challenge a personal law practice, citing her fundamental rights”. Although domestic violence and desertion are common enough among women across the board, it seems the Muslimness of Shayara Bano makes her newsworthy. Otherwise how is it that a reputed newspaper completely ignores the numerous case laws declaring instant triple talaq invalid? The verdict in this case will not set the first legal precedent. It is a given.

Instantaneous triple talaq or Talaq-ul-Biddat does not apply to all Muslims as is commonly believed and propagated. Out of the four schools of jurisprudence in Sunni law and the fifth Shia school of jurisprudence, only one – the Hanafi school – allows for instantaneous triple talaq. Shia jurisprudence prohibits Talaq-ul-Biddat. So before we exclaim ‘Muslims aren’t a monolith but…’ we should also consider that not all Muslims practice the Hanafi school of law.

Fourteen years ago, in a landmark judgement in the Shamim Ara vs State of UP case, the Supreme Court invalidated arbitrary triple talaq and held that in order to be valid, talaq has to be pronounced as per the Quranic injunction. The term “pronounce” was explained as “to proclaim, to utter formally, to declare, to articulate”. The Supreme Court said, “None of the ancient holy books or scriptures mention such form of divorce. No such text has been brought to our notice which provides that a recital in any document, incorporating a statement by the husband that he has divorced his wife could be an effective divorce on the date on which the wife learns of such a statement contained in an affidavit or pleading served on her.”

Shayara Bano’s divorce will certainly be overturned, but what difference would that make to her life? Here is a woman who doesn’t want a divorce but her husband has made up his mind to abandon her. Once the instantaneous triple talaq is revoked, he will divorce her by pronouncing it over a period of 90 days. The mode of divorce, therefore, is not as important as the consequences faced by the woman who is being divorced.

The current laws
Unless we are looking at banning all Muslim men from initiating a divorce altogether, the problem of women being deserted without proper maintenance will still remain, as it does universally. Women stay in bad, abusive marriages for a number of reasons. They face societal and cultural pressure in form of stigma surrounding divorce. There could also be familial pressure, where members of the woman’s family refuse to help or support her in situations of marital distress. But it is financial pressures which often supersede any other consideration, especially when young children are involved.

If our efforts are geared towards empowering and enabling Muslim women, especially those who tend to find themselves in the double bind of religion and culture, it will be worthwhile to study some of the protections that are already enshrined within the systems of marriages and divorce which are familiar to them and compatible with their beliefs. In putting all our efforts into banning triple talaq we are catching the wrong end of the stick. 

The current laws that determine Muslim marriages and divorces in India are the Sharia Act, 1937, which declares that the personal affairs of Muslims will be governed by the Sharia, the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Increasingly middle and upper class couples register their nikahunder the Special Marriage Act in order to access travel documents or bank accounts. Marriages registered under the Act, even if they are carried out subsequent to a nikah, have to be formally dissolved in a court of law.

A nikah is conceptually a contract (Aqd-e-Nikah) and the wedding is a contract-signing ceremony between two parties. Like any other contract, the nikahnama can be modified or added to at the time of the marriage. Lawyers can be brought in to draft it. It may perhaps be better understood if I say it’s a pre-nuptial agreement sanctioned by religion. The Aqd-e-Nikah not only registers the mehr to be paid to the bride but can also contain rights and the logistics if the couple were to divorce.

There are broadly four ways in which a divorce can be granted:
  • Talaq – The granting of divorce by the husband (inclusive of instantaneous triple talaq among the Hanafis).
  • Khula – A divorce initiated by the wife.
  • Faskh-e-Nikah – The dissolution of marriage when the wife wants a divorce but the husband is refusing to grant it.
  • Tafweedh-e-Talaq – The transfer of the rights of talaq to the wife.
Islamic law also lays down certain safeguards for women. One of the safeguards comes in form of the mehr, which is a pre-negotiated amount that a bride is entitled to and it is recorded in the nikahnama. Mehr is in the form of money or property meant for the exclusive use of the woman. It should ideally be paid on the night of the marriage. The wife can allow her husband to breakup the payments of the stipulated mehr by accepting a substantial part of it on the day of marriage and allowing the husband to pay the rest at a later date. Without payment of the mehr, the nikah is not considered valid.

The problem of implementation
However, the situation plays out differently in India… read more:

see also