Abu Dhabi, UAESaturday 20 July 2019

The battle over ‘triple talaq’ in India goes far beyond Muslims alone

India’s prime minister has raised the issue of divorce among the country's Muslim communities. But, writes Rafia Zakaria, the political posturing masks a much more complex reality, one that actively discriminates against some faith groups
Muslim women attend Eid Al Fitr prayers to mark the end of the holy fasting month of Ramadan in the city of Srinagar Danish Ismail / Reuters
Muslim women attend Eid Al Fitr prayers to mark the end of the holy fasting month of Ramadan in the city of Srinagar Danish Ismail / Reuters

Two weeks ago, the Indian prime minister Narendra Modi made his way to the Indian state of Uttar Pradesh. There, in the Bundelkhand region, which is gearing up for state elections, Mr Modi, ever the populist, posed a question to the gathered crowd: “Should we permit the rights of our Muslim sisters to be destroyed simply because someone utters talaq [divorce] three times over the telephone?”

Then, like all sharp politicians, Mr Modi glibly proceeded to answer his own question: “In democracy, there should be discussion,” he proclaimed, and “the lives of Muslim women cannot be allowed to be ruined by triple talaq.”

The Indian prime minister’s sudden concern for the welfare of Muslim women is only the latest chapter in a controversy that has been bubbling and boiling in India for the past several months. At its heart lie the tensions between minority rights, women’s rights and vexing questions regarding the nature of Indian secularism.

Will it ban practices like the unilateral triple talaq pronouncements that can currently constitute a legal Muslim divorce? Will it then also go on to ban practices within Hinduism, or with other religions that are discriminatory toward women?

If Mr Modi’s words at the Bundelkhand rally are to be believed, then an even hand would be applied to all of India’s panoply of faiths, each one brought into accord with a secular standard of gender parity.

Rhetorically pleasing though it may be, the idea of a benevolent Indian state championing women floundering under the weight of discriminatory religious edicts is a chimera. Just beneath lies the chasm separating Indian secularism as a robust principle idea from its messy and often duplicitous reality under the aegis of the Bharatiya Janata Party.

This latest skirmish began when a poor Muslim woman named Shayara Banu filed a public interest petition in an Indian court. Mrs Banu, who had been physically and mentally abused by her husband for many years, challenged the instantaneous triple talaq, via which her marriage had ended, the practice of halala (which requires a man to marry another woman before remarriage to his first wife) as well as polygamy. In its own petition in the Shayara Banu case, the Indian state came out swinging, denouncing the practice and demanding an end to it.

Like with everything else in India, however, there is a backstory. Even as the Indian constitution guarantees gender parity at an individual level, a dizzying set of exceptions have been granted to minority and indigenous religions (not to mention Hinduism itself) from the enforcement of these provisions. In its attempt to balance individual versus group rights, Article 25 of the constitution grants freedom of religion, and Article 26 guarantees the right of every religious denomination the right to “manage its own affairs”. In the case of Indian Muslims, this has meant the right to be governed by a separate set of “personal laws” relating to marriage, divorce and inheritance. Various minority branches of Hinduism and a host of others have similar privileges. The entire structure dates back to the machinations of the British, who used the grant of this sort of limited autonomy as a stand-in for actual civil rights, a deft deflection of attention from colonial domination.

The British may be gone but their structures remain; Indian Muslims, who have in the decades since independence experienced not only marginalisation and exclusion but also consistently dropping levels of educational and economic achievement, are loath to give up this small dominion over themselves.

The years of Modi rule have not only calcified Islamophobia as a legitimate political position; it has become a near requirement of being a patriotic Indian. Nor is the Indian Supreme Court, the very body that will issue judgment on the issue, an entirely fair arbiter. In the past the court has permitted references to Hindutva in state matters by saying they represent a reference to general culture and “the Indian way of life”. Everything changes when the religion being considered is Islam. In the widely cited case of Mohammed Ahmed Khan v Shahbano Begum, the chief justice’s comments included the remark that “the fatal point in Islam is the degradation of women”.

With all of this forming the dark backdrop to the issue of unilateral talaq, it is unsurprising that Indian Muslims are hostile to the state’s intervention. The worst of the lot falls predictably to Indian Muslim women, who must choose between their Muslim, Indian or female identity. If they sign up with the secular feminists allied with the Hindu Right on this issue they betray their faith community. If, on the other hand, they oppose the ban, they remain saddled with a practice that has, with its proliferation via text and social media platforms, made the divorcing of wives a matter of typing and clicking.

Sliced and diced thus, they can be Indian or Muslim or female but never all three.

It is a familiar dynamic, visible not only in India but in other multicultural societies where Muslims have tried to obtain group recognition for their rights.

A little over a decade ago, an effort to have Islamic religious arbitration recognised in the Canadian province of Ontario met with extreme opposition and was ultimately quashed. As in the case of India, Canadian Muslim women (like Indian Muslim women today) would have retained the right to be governed by the country’s civil laws.

Permitting Muslims to carry out religious arbitration in personal law matters would have come in the footsteps of Roman Catholics already having the same rights. A commission formed to look into the possibility of recognising Islamic religious arbitration recommended that the permission be granted. It never would be, however. The political outcry against granting such rights to Muslims in Ontario was so overwhelming that the province chose to repeal its entire arbitration statute simply because it did not permit them to grant arbitration rights to one religious minority and not to another.

In India of course, the right has already existed and now stands to be abridged. At the same time, the deployment of fear and suspicion, the normalisation of Islam as particularly misogynistic, follows the same pattern that played out in Ontario (and France, Denmark and several other European countries).

None of it is pertinent to the actual welfare of Muslim women. The details of even Shayara Banu’s case are a testament to this. It is not simply the manner of divorce that lies at the heart of her case, but the fact that a divorced woman has little access to support and a means of survival.

It underscores that marriage remains the sole means of an Indian woman’s survival, regardless of her faith. Viewed in this way, the issue is less about the ease of divorce and more significantly about the few avenues for self-reliance that exist beyond its boundaries. If destitute Indian women, Muslim or otherwise, are to be lifted up, then pointing fingers at fast divorces is but a distraction, a looking away from the fact that Indian society does not permit a woman to exist without a man.

When a state seeks to intervene in the matters of any faith community it runs the risk of pushing the most disenfranchised and least powerful members of that community into invisibility. Facing bans, their lives and rights may recede into the recesses of secrecy and underground practices, leaving them with little recourse, abused by husbands and made scapegoats by the state.

It is possibly just this realisation that prompted hundreds of Muslim women to take to the streets of Agra a week ago. The Indian government, they protested, should not be permitted to meddle with the laws of the Muslim community, and they would oppose the measure at all costs.

Rafia Zakaria is the author of The Upstairs Wife: An Intimate History of Pakistan

Updated: November 3, 2016 04:00 AM