Javed Anand on the medieval mentality of the Muslim Personal Law Board
I am reminded of a
friend who used to say, “Bhaagte bhoot ko langoti sahi." He
would then go on to translate his version of the popular Hindi saying as:
"To a fleeing devil trying to hide his shame, a loin cloth would do.” The “few
positives for women” that Flavia Agnes discovered in an affidavit
recently filed by the All India Muslim Personal Law Board in the Supreme Court
are just that.
Last week, the Jamiat
Ulema-e-Hind launched a law institute to bring prominent muftis (experts in
Islamic jurisprudence, or fiqh) and legal luminaries among Muslims
together for the first time for a training course on Muslim Personal Law. At
the inaugural of the institute, the highly-regarded Maulana Khalid Saifullah
Rahmani, general secretary, Islamic Fiqh Academy, declared that “triple talaq
is as essential for law as a toilet is for any home”.
Got it? A toilet is
not a great place to go to, but when you need to quickly excrete the unwanted
out of your system, flush it out of sight, where else? So also with an unwanted
wife. The toilet analogy found no mention in the Board’s current affidavit
before the apex court. Perhaps it will in future affidavits or arguments.
However, even as it is, the Board’s affidavit reeks of a medieval, misogynist
mindset.
No concessions: The three “important takeaways” that Agnes
nonetheless managed to extract from a document that stinks are as follows. One,
in its affidavit, the Board, for the first time, publicly accepted the Supreme
Court’s judgment in the Shamim Ara case wherein triple talaq or instant divorce
was declared invalid. Two, the Board, also for the first time, conceded that a
Muslim woman victim of domestic violence has the right to claim relief under
the Protection of Women from Domestic Violence Act, 2005, a secular statute.
Three, the Board at last “seems to have accepted” the judicial interpretation
that the community-specific Muslim Women (Protection of Rights upon Divorce)
Act entitled a Muslim woman to a fair and reasonable provision for her entire
life, not only for three months as it had earlier argued in the Danial Latifi
case.
Agnes would have us
believe that these three important public concessions by the Board mark a huge
religio-cultural leap towards gender justice by India’s Sunni ulema, or
religious scholars. “The agency of the Muslim woman and her
multiple choices, which are seldom highlighted, are captured in a nutshell in
this affidavit,” wrote Agnes.
In an earlier article in Scroll.in,
Agnes had made the same argument. And now that the Board has conceded crucial
ground, where’s the point in Muslim women trooping back to the Supreme Court
seeking an end to triple talaq, nikah halala (the stipulation that a divorced
Muslim woman cannot remarry her former husband until she marries and divorces
another man after having sex with him), and polygamy?
On halala, Agnes
wisely maintains a discreet silence since there is absolutely no space for
manoeuvre here. On polygamy, she sees yet another “important takeway” in the
Board’s affidavit. Though she has problems with the “clumsy manner” in which
the Board has argued the case for continuing polygamy, both are on the same
page.
Polygamy vs bigamy:
Muslim women, who have
petitioned the Supreme Court, want polygamy to be declared unconstitutional,
and banned along with triple talaq and halala. But the ulema want polygamy to
stay as part of Muslim Personal Law. And so does Agnes, in a roundabout way.
For the former, it is because the Quran so permits it. For Agnes, there is the
“harsh ground reality” that the Hindu Marriage Act has hardly helped curb
bigamy.
Agnes argues that
because the “second wife” of a Muslim man is legally recognised, she has the
“same status” as the first wife. Thus, Muslim women are far better placed than
their Hindu sisters because having banned bigamy, the Hindu Marriage Act
refuses recognition to the second wife. As a result, the Hindu second wife has
no legal claim on her husband’s income or wealth and in case of separation, she
is rendered destitute. Monogamy sounds good in principle, in line with the
constitutional right to equality and non-discrimination. But in practice,
barring bigamy renders the second wife highly vulnerable.
But what about the
first wife? Is cash for sex what marriage is all about? These do not seem to
register on Agnes’ radar. For others, including the United Nations Committee
for the Elimination of Discrimination Against Women, polygamy is a matter of
serious concern because of its consequences for women (first wife or second)
and children within such marriages.
Yasmin Rehman, who has
been researching polygamous practices in the UK for the past six years, notes:
“The emotional and
psychological impact of polygamy is significant with some women stating they
felt they had somehow failed as a wife, others were burdened by the shame of
being a first wife as they knew they were being pitied at one level and judged
at another. The hierarchy of wives and ensuing competition for the attention of
their husbands places a huge strain on women. Polygamy drives down the age of
women and girls, it also enables older men of wealth and status to gain sexual
access to young women for marriage. I have gathered evidence of incidents of
physical, psychological and sexual abuse directly linked to their polygamous
marriages – either due to resisting it or the dynamics within these unions”.
Rehman quotes author
Geraldine Brooks, who in her book, Nine
Parts of Desire, refers to polygamy as: “[T]he spectre that
haunts every Muslim woman…The threat, possibility and fear that their present
or future husband may take another wife is a reality for many Muslim women, and
undoubtedly influences their perception and management of their relationships”.
Unlike Agnes, while
Rehman believes that responding to polygamy requires much more than a mere ban
on its practice, she is fully alive to the multiple consequences for women and
children of this grossly discriminatory practice against women. It’s not just a
question of money.
In keeping with Agnes’
monochromatic perspective on polygamy, one might as well ask: Why not demand
that the personal law for Hindus be amended to legalise bigamy in order to
bring the Hindu second wife on par with her Muslim counterpart? This Agnes
cannot do for it would take her to the camp of right-wing Hindu men, who
agonise over being denied the same right that Muslim men are free to enjoy: the
right to multiple wives.
Who knows best?: We have a truly ironical situation here.
Despite her disclaimers, her distancing herself from the internal
contradictions in the Board’s affidavit, Agnes effectively ends up on the same
side of the street as the male-oriented All India Muslim Personal Law Board…
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