Koshika Krishna Krishna
An avid reader, a polemist and a social activist. Her interests include Legal jurisprudence and international politics. Loves new experiences; a travel-addict. Wants to go back in time and sit over tea, with Castro
“A small group that casts a very large shadow” – words that eloquently describe the work done by Majlis Legal Centre, Mumbai.
Flavia Agnes is a women’s rights lawyer. She is a pioneer of the women’s movement, and has worked consistently on issues of gender and law reforms. As co-founder of MAJLIS, a legal and cultural resource center, her primary engagement has been to provide socio-legal support to victims of domestic and sexual abuse.
The Logical Indian interviewed Flavia Agnes on the crucial game changing issues affecting India at present. From the Triple Talaq case at the Supreme Court to the true context of secularism within the Indian fabric, Flavia Agnes provides a nuanced understanding of these very complex issues.
Majlis Legal Centre is an intervener at the Supreme Court in the triple talaq case. Citing its experience of working with such victims, Majlis Manch argues that based on the Quranic stipulations, the Supreme Court as well as various high courts in the country, have already declared instant and arbitrary triple talaq invalid.
Contrary to the popular notion, the term ‘secularism’ is actually not generic but country specific. For instance in Europe there existed the Roman Catholic Church which had an autocratic political role. The aim for the revolutionist hence was to create a separation between the State and Church such that their roles were not intermixed. To rest control of civil matters with the State and leave the church with only the spiritual and sacramental aspect. This model was then incorporated in other countries. While this theory worked for most countries, in India it hasn’t because the social fabric here is much more complex and diverse. We do not have the same kind of genealogy and history.
At the time of Independence, our national leaders although enamoured by the western concept of human rights, freedom and democracy, recognised that the heterogenous polity of India required for a different interpretation of secularism. For us it was ‘equal protection to all religions’. Our struggle wasn’t against the religions and the control they would exert on civilian matters but against the colonial powers and their policy of ‘Divide and Rule’. They hence formulated laws that focused on ‘protecting minority rights’ while allowing a wide birth to the majority religious denominations and advocated the right to freely profess one’s religion. Our focus was to create a safe space for all cultures to flourish. The Constitution therefore has provisions which ensure that the State does not discriminate against minorities, allocates funds for their propagation etc.,
Moreover India doesn’t just have religious minorities but also cultural and tribal communities for whom traditions are very important. These form a part of their internal governance in dispute resolution mechanisms at local level. The same is also true among more widespread religious groups. For example Churches have their own mechanism for dissolution of marriage, distinct from say Muslims who employ Darul Qazis or Hindus who have caste panchayats. Hindu law itself acknowledges the various forms of traditional marriages and divorces; there is no specifically defined format. All rituals and customs of the community are accepted unless of course when they violate the right to life, dignity, individual liberty, public order etc., The State can only interfere if any of these reasonable restrictions are violated.
Now, the debate around triple talaq started when an NGO Bharatiya Muslim Mahila Andolan (BMMA) which works with poor Muslim women did a study on the issues affecting Muslim women in matters such as marriage and rights within the family, and brought out a report. It had two parts. The first part focused on the empirical study of the actual situation of Muslim women concerning marriage, divorce, maintenance, child custody, property rights, etc. They compiled a statistical analysis of the responses based on their survey. The second part focused on ‘views’ or ‘impressions’. An impression being a question such as ‘do you oppose triple talaq ?’ or ‘Do you think polygamy should be banned ?’ Majlis studied the profiles of these women who were interviewed, and realised that there is no co-relationship between the actual responses and the views. These were merely opinions and not database of the empirical study. None of these women were actually in a polygamous relationship. Also none of the questions directly addressed the issue of arbitrary triple talaq in one go. The study was later criticised by journalists and legal scholars as not scientific and rather superficial.
Moreover the BMMA based their study on only 4,700 interviews but the claim was that it was a ‘a nation-wide research?’ This question has in fact even been raised before the Hon’ble Supreme Court. The organisation claims to have the membership of over 1 lakh Muslim women but only interviewed 4,700 as their backing and evidence that all Muslim women are supporting the demand for a new law to be enacted by this extremely right wing and anti-Muslim government.
I actually don’t blame the organisation, the media has cherry picked certain specific statistics to over hype this issue. For instance, the study states that “92% of the interviewed women want to ban triple talaq.” (This percentage being out of the 4,700 questioned) But as the news spreads these numbers changed and were misreported as ‘92% of Muslim Women in India want to ban triple talaq’. From trustworthy media houses like Huffpost and Times of India such statistics convey a huge distortion.
The matter came up at the S.C when a case pertaining to Hindu laws and women’s right to ancestral property was being heard. It was mentioned before the bench that when the rights of Hindu women are being considered so should those of Muslim women. The context is not even relevant. A court is supposed to adjudicate on the matter before it. Such a reference to a larger bench on an issue which was not before the court was unheard of in the history of Indian courts. The matter was then placed before the Chief Justice who decided to constitute a five-judge bench to hear this case. The case of Shayara Bano was filed and placed before this bench. The fact unknown is that Shayara Bano’s husband had actually filed an application for ‘restitution of conjugal rights’ (which means that he wanted her back) at the Lucknow family court. Shayara Bano wanted to get this transferred to the family court in Uttarakhand where she was residing with her parents. When it became clear that Shayara did not want to return to her husband, her husband’s lawyer convinced him to instead pronounce triple talaq and dissolve the marriage. Balaji Srinivasan, Shayara’s lawyer in the S.C. right now, who had filed the transfer petition filed the PIL before the S.C. bench already constituted to hear such cases in an attempt to ban this practise.
In fact even Balaji did not fathom that the issue would flare up to this extent, but the ground had already been set in communal tones, the political climate was already charged and the BMMA study added further fuel to this fire. And then it was not long before the media picked up to this frenzy.
The Supreme Court controversy that has arisen is in my opinion, purely the making of the media. As the quote goes, this is ‘the low hanging fruit’ that everyone wants to pick. Why is it that the media has not reported the numerous positive judgements that were introduced within the Muslim community? Why is it that only those that create a sensational impact in showing this community as being ‘backward and riddled with archaic principles’ see the limelight.
In our application we have argued that the Shamim Ara judgment by the Supreme Court in 2002 has invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq and the liability of the husband to pay maintenance to his wife does not come to an end through such communication.
The Supreme Court had remarked that, “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.”
Unfortunately, this landmark ruling did not receive wide media attention and was not discussed in public forums. Although it has become the basis for several later rulings by various high courts such as in Dagdu Pathan v. Rahimbi Pathan, 2002 where the Bombay H.C. held that Muslim husband cannot repudiate the marriage at will. And in other orders like Najmunbee v. Sk Sikander Sk Rehman in 2004, Dilshad Begaum Ahmadkhan Pathan v. Ahmadkhan Hanifkhan Pathan and Riaz Fatima v. Mohd Sharif in 2007, these positive judgments in support of Muslim women have received no media focus. Sensationalism wins in the face of these judgments because that is what gets them more TRP’s. The controversies around triple talaq hence fall in the same category as the Uniform Civil Code, both of which have been used as a stick to beat Muslims.
There are two views on this. Some believe that the uncodified law gives more space for the judges to interpret since there are no strict constructs, while the others believe that set provisions is easier to interpret than referring to religious texts, customary practices and judgments. For me, codified or not what matters is that the women approaching courts must get justice.
If a law is the way to justice tell me this: Prior to the codification of Hindu law are we implying that there was no justice available to these women? Or is it that now they are better off?
A judge can grant justice to women with or without the presence of a codified law. A law alone cannot bring justice. Although for Hindu laws, codification was required because this gave Hindu women a way out of the marriage. Something that was never addressed in the uncodified scenario because Hindu marriages are considered sacrosanct. There were no provisions for Hindu women to seek divorce.
And if our premise is that ‘laws grant justice’ then let us examine the situation of dowry deaths/harassments still prevalent in India. It has been 60 years since the Dowry Prohibition Act was legislated, how has it failed to put an end to this social practice? Dowry practice continues to be widespread, the forms of dowry have changed from property to cash, other goods etc., but there has been no end to this practice. And then there is this societal perception that gives a premium to marriage than ever before. Even today to be married is a status symbol and to leave a stigma, inspite of laws in place.
With Hindu women the liberation is to walk out of marriage and that is how codification helped them. However in comparison, other counterpart religions like Christian and Muslims, always had a provision for obtaining divorce.
Unfortunately all progressive elements are now thinking that for a Muslim woman the liberation is to ‘stay in the marriage’. They are not opposed to triple talaq per se, but all arguments against triple talaq are about getting Muslim women to stay in marriage. For our clients at Majlis, those in extreme difficult marriages, talaq comes as a respite. They are free of their suffering and can claim their post divorce rights such as maintenance, residence and custody of child and are hence secure even after the marriage is dissolved. Why is this not discussed by these progressive voices.
Muslim women have ample rights under their personal laws. They can seek divorce themselves through Khula, without giving any reasons for wanting to do this. The concept of ‘meher’ provides the financial stability. Contracts drawn up at the time of marriage regulate it and ensure their protection but sadly this has all gone out of the window, under the current tone of the country. Contrary to their religious counterparts these women in fact have more post divorce avenues available.
Reform from within is very important because without it all laws are pointless. Take Christians for example, they have a culture, a religious belief, certain institutions. As a Christian woman you may be facing abuse from your husband, a sad reality in most houses. Another reality is that of the church which refuses to acknowledge this. Now, someone comes from the outside and gives you the right that liberates you in a way your religion cannot. But if the Church says ‘this is against our beliefs’, what will a Christian woman do?
I’ll tell you what they do. We have the Indian Divorce Act under which a Christian woman can seek dissolution of her marriage without any certification from the Church. There is also the Special Marriage Act under which divorced women can remarry without any religious ceremonies needing to be satisfied. Simultaneously the church also has it’s own policy where a marriage needs to be annulled in order to remarry.
The crack in the legislation is that while in the eyes of law she is divorced under IDA and can remarry under SMA, as per her religious principles she is still a married woman. The church in that case refuses to accept her second marriage terming it as adultery, the woman is socially ostracized.
My Christian clients ask me this when I tell them to seek their rights under IDA, “But ma’am when I die where will I be buried?” Because eventually these women want to go back and seek salvation through their own religion. They want to be buried. But does the church accept such a woman who has defied their personal laws. They don’t and hence refuse to bury her. What is the use of these legislations then. The woman is lost in this chasm. There hence exists two parallel laws with no sync.
But now if the church says, ‘yes you do have a right to seek divorce and remarry and that God has not said that women should be dominated by their husbands’, then the Christian women will be at peace to say that this is my right and I want my right and remedy.
Take the example of Shah Bano. She got a meagre maintenance of rupees 175 from the court. After the court order when everyone told her it was ‘haram’ to take money from her divorced husband, what did Shah Bano say? She said, “I want to be a true believer and I don’t want to do anything that is haram in Islam. So if this is haram I don’t want it.”
Let us for a minute presume that the Supreme Court invalidates triple talaq. What will the reality be like? As per the law, the marriage is still valid but as per Islam it is not. The woman is caught between these two distinct grappling concepts. As a true Muslim her principles dictate that she follow what her religion preaches. She must believe that the talaq means that her husband is haram to her, her husband and even their families will believe the same. What use is the ruling then? If however the All Indian Muslim Personal Law Board (AIMPLB) advocated this notion, would it not make a larger difference since now, the acceptance is from within the community. Majlis has engaged in this principle and on various fronts has negotiated with the Church and got changes made in the divorce laws.
But right now with the way this argument is progressing, agencies are being played against each other which is only widening the gulf without any consensus being reached.
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