Ending instant divorce is a victory, but Indian women have a fight ahead.
The unilateral nature of "triple talaq" violates the contract of marriage and its well-defined rights and responsibilities and places power in the hands of men, reinforcing a hierarchy within marriage. The woman's emotional contribution to the marriage is never acknowledged, and neither are her rights to equal share in any property and child custody as the marriage ends.
So the declaration by justices in New Delhi that the practice is unconstitutional was a relief and victory for India's 90 million Muslim women. This milestone judicial intervention means that family laws can now be brought under the scrutiny of fundamental rights. Though the five judges who sit on the constitutional bench were divided - the ruling passed with a majority of three to two - women's groups celebrate alongside Shayara Bano, the 35-year-old woman who had filed the petition in the Supreme Court after her husband divorced her in 2015 by writing a letter that mentioned "talaq" thrice.
But the fight did not begin with Bano. For the past three decades, Muslim women have knocked on the doors of courts with their individual cases, challenging the discriminatory practice within family laws. The courts often adjudicated these isolated cases and passed favourable judgements. However, no judgement before Bano's tested the practice on the basis of fundamental rights of equality and non-discrimination.
The judges who voted to keep "triple talaq", Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, upheld the constitutional protection of the freedom of conscience under Indian law. While the practice has been declared unconstitutional in much of the Muslim world, it has continued in India because communities are allowed to follow their own religious laws in personal matters, including marriage, divorce, inheritance and adoption. The two judges maintained that the courts cannot adjudicate on Islamic personal laws and failed to distinguish between statutory laws and faith. They sided with those arguing for "reforms within the community". But three decades in the women's movement has taught me that the religious organisations (and some NGOs) within the community have in the past denied legal remedies to Muslim women, forcing them to seek arbitration within the religious framework.
The verdict also acknowledges that the practice is not validated by the Quran. One of the primary arguments made in court by the umbrella organisation I founded, Bebaak Collective, was that, considering India is a secular and democratic country, all personal laws must be tested against constitutional values, and if there's a contradiction, principles of equality must prevail. The judgement is the precedent we need to now challenge "nikah halala", (when a man can remarry his divorced wife only after she is married to another man and divorced by the same), polygamy and other discriminatory practices against women.
Outside and beyond the courts, in spite of vociferous opposition, this case has brought the conversations on women's rights into mainstream public debate. This is a welcome shift compared with the usually deafening silence on inequality within the institutions of marriage and family.
However, the jingoistic congratulations of the ruling Bharatiya Janata Party government at the Centre, for its univocal support to the cause of Muslim women, feels like an appropriation of the decades-long struggle by grass-roots women's groups who worked with the Muslim community. After all, it was women, not the government, who went to the judicial system to seek redress in the courts.
Still, Muslim women from across the board welcome the verdict as it puts an end to the insecurity of their conjugal lives. The judgement will strengthen our resolve to confront violence and abuse within our families, negotiate for property, inheritance and custody rights in our marriages, cohabit in congenial spaces, and perhaps even question the heteronormative framework of family itself, which is premised on heterosexual partnership as well as on kinship and bloodline.
In our continued struggle for gender justice, beyond the patriarchy of our communities and state institutions, we uphold India's constitutional values of equality, pluralism and secularism.
- Guardian News & Media Ltd
Hasina Khan is the founder of Bebaak Collective, an umbrella organisation of Muslim women's groups in India.
[c] Al Nisr Publishing LLC 2017. All rights reserved. Provided by SyndiGate Media Inc. ( Syndigate.info ).
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|Publication:||Gulf News (United Arab Emirates)|
|Date:||Aug 27, 2017|
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