In 2015, a newly-wedded bride waited for her husband to tell her whether he had reached Dubai safely or not. She waited for days with no reply, until one came – via Whatsapp. Three words, “Talaq talaq talaq”, and she was virtually divorced.
Why are you calling me? I do not like you. Do not wait for me. If we like apple, will we keep eating it every day? We will like to eat other fruits also. Talak Talak Talak.
If she goes to the courts, there are precedents for derecognizing such divorces. But Muslim community leaders could disagree. And when religious and state laws clash, the question of a Uniform Civil Code (UCC) is bound to raise its head again.
Editorialized, communalized and heavily politicized, the debate on the UCC today opens a Pandora’s box – should the state be allowed to modify religious personal law? If that question sounds scary, take the question of whether individual rights can be superseded by those of religious groups – as suggested in Article 26 of the Indian Constitution?
A clash of perspectives
In recent times, Muslim Personal Law has been under the spotlight, as civil rights activists and right-wing organizations call for state-led religious reform similar to that under the Hindu Code Bills. The two groups often disagree, but have a common contention – Muslim Personal Law remains governed by the Muslim Personal Law (Shariat) Application Act of 1937 – a British-era construction.
Zakia Soman is the co-founder of the Bharatiya Muslim Mahila Andolan. Their organization claims to have over 70,000 members and has organized large-scale surveys of Muslim women across India. They say the evidence is overwhelmingly against support for triple Talaq, despite recent claims by the All India Muslim Personal Law Board.
“The 1937 act is an act of the British era. All the important things which influenced my life as a woman, for instance, age of marriage – triple Talaq, Nikah Halala, polygamy, guardianship and custody of children, my share in property – all these provisions are not covered under the 1937 act. So what use is the act to me? It only says that I will be governed by Sharia,” she said in an interview with Madras Courier.
The only segment of the population left out from any reform and any legal moves towards gender equality, happens to be the Muslim women.
But for professor Faizan Mustafa, Vice Chancellor of NALSAR University of Law, Ambedkar provided a constitutional guarantee not to interfere in minority religious rights – and these guarantees cannot be broken.
“In matters of religion, they will have freedom. This freedom is subject to public order, health and morality, but it is not subject to other fundamental rights. In matters of religion, if my religion contradicts some fundamental rights under article 26, then religion need not make way for the right to equality,” he said, speaking at a lecture.
The difficulty of legislating mindsets
Viewing any such intervention in religious law as unconstitutional under Article 25 and 26, Faizan argues that the idea that Muslim Personal Law is something static that can be changed or struck down is untrue.
We are living under some illusion of legality. A large part of Muslim personal law is not law. The uncodified part of Muslim Personal Law is not law, it is mere opinion of jurists. How can the Supreme Court hold an opinion which was given one thousand years by some alien jurist as unconstitutional?
He argues that the best way forward would be to change nothing legally and to work towards creating a progressive mindset within community leaders and the Ulema.
While many court judgements have ruled divorces under Triple Talaq to be invalid, Zakia says most women can’t afford to fight their battles in court. “For a woman to claim alimony under section 145 of the Code of Criminal Procedure (CrPC), the woman has to go to court. How many women can go to court? Whereas by uttering Talaq, he doesn’t have to go to court. He can utter it anywhere, and he’s scot free after that.”
Legislation can only go so far. While the 1986 Shah Bano judgement was historic, it led to the strengthening of fundamentalist mindsets within the community. And as Zakia says, she would like if people had an option whether to follow the Uniform Civil Code or not.
Unformed Civil Code
It’s worth noting that as of now, the UCC is not even in draft form. For women’s rights activists, abolishing practises that exist can be done using Quranic principles. Their main contentions are the practices of Triple Talaq and Nikkah Halala (where divorced Muslim women cannot remarry their first spouse until they can have consummated their marriage with a subsequent husband).
Hindus, Sikhs, Buddhists and Jains were for many years clubbed under Hindu personal law in jurisprudence. As attitudes changed over the years, progressive moves have been made around the institution of marriage. Change takes time, for example, women coming under a Hindu Undivided Family (HUF) only gained the rights to ancestral property in 2005.
The Uniform Civil Code will affect far more than Muslim women, but it is their issue that is driving the debate currently. Until women can benefit from progressive laws, they will be hoping that societies can change faster than legislation.
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