The Supreme Court of India recently suspended the practice of Talaq-e-Biddat (instant triple talaq) as unconstitutional for six months, and asked the government of India to enact statute to this effect, including other relevant aspects of Muslim marriage and divorce.
The judgment came on a narrow 3:2 split decision from a five member bench which included the then chief justice JS Khehar.
Interestingly, all five judges come from five different religions -- Islam, Sikhism, Hinduism, Parsi, and Christianity. However, regular triple talaq with proper procedure and time was not an issue in the petition and hence, stands valid as always.
The credit of moving the petition primarily goes to few brave Muslim women who courageously moved to the apex court against this highly regressive religious practice.
It’s noteworthy here that in Bangladesh and Pakistan, instant triple talaq has been banned for ages. But, like in Bangladesh, successive government in India were hesitant to deal with matters of minority personal laws.
Even the British Raj was careful about socio-religious practices of the people of the sub-continent, and they basically created laws to give formal character to these practices in their system, for example, the Sahriayat Act 1937.
After 1947, both in India and Pakistan, the governments did some codification of personal laws of their majority communities, for example, the Hindu Code Bill 1951 and the Muslim Family Laws Ordnance 1961.
It was relatively easy to pass common Hindu family laws because of the diversity within the Hindus and absence of a Muslim-like, well organised communal jurisprudence.
Too much trouble
Bangladesh, after its independence, furthered the 1961 Act with Family Act Ordnance of 1985. All these states refrained from doing or were very slow to do much to codify the minority personal laws, let alone reforming those.
For example, despite the big number of cases of Bangladeshi Hindu women being abused and abandoned by their husbands, and in spite of repeated demands from prominent activists, the Hindu Marriage Registration Act has only recently been enacted in Bangladesh, and that too as a voluntary basis -- not as compulsory.
There has hardly been any formal record of marriage of Hindu women in Bangladesh, nor were there any provisions of alimony from ex husbands or property rights (from both father and husband). Mainstream political parties don’t want to get into these issues considering these troublesome. All mainstream political parties in South Asia maintained a traditional apathy and careful distance from minority personal matters due to the communally charged history of the sub-continent.
In fact, this sort of disinterest closes most channels for women within the minority communities if they wish for any justice against the highly regressive patriarchal practices of their communities.
Politics behind laws
However, of late, there have been some movements. Pakistan, like Bangladesh, has also enacted Hindu marriage act, and the Indian court has banned instant triple talaq. But there seems to be varying degree of politics linked to it.
How did the BJP become interested in Muslim personal laws, and that too being a Hindu nationalist political party, whereas others maintained a careful distance?
In Bangladesh, the incumbent Awami League, which is officially a secular party, only did it after substantial pressure from rights activists and a sizable section of Hindu community keeping the provision opting out in marriage registration. All quarters of the community are more or less happy and Awami League’s traditional Hindu vote bank remains intact. Ideally though, a law confirming this simple basic right shouldn’t have taken so long.
How did the BJP become interested in Muslim personal laws and that too being a Hindu nationalist political party, whereas Congress and others maintained a careful distance? There are two explanations.
Pretense of progress
Firstly, the fact that the BJP aim for Hindu vote consolidation in its favour with anti-Muslim rhetoric. Thus it generally has no expectations for Muslim votes.
It can have several tones. One, they don’t do (so-called) Muslim appeasement, like others. Two, they have sympathy for the oppressed quarters of the minority. Often the BJP talks about Muslims being used as vote bank by pseudo secularists, implying that the BJP are the real seculars, and they work for their slogan “Sab ka sath, sab ka bikas
” (with all, progress for all).
In reality, it often seems, they have no wish to offer any social progress package to the socially backward Muslims. Rather, their activities with regards to cow protection have indeed put the Indian Muslims, for whom beef is a staple food and cheap source of protein, in considerable peril from the newly cropped up cow vigilante goons.
That being said, with not much progress in development matters, the party is looking for votes from any corner to prevent anti-incumbency momentum developing before 2019. Hence, more Hindutva are targeting a section of Muslim women votes.
The second explanation is a more naïve one, which is the BJP is getting interested to become an all-inclusive party gradually, and it wants to shed the label of being just a Hindu party. Perhaps the truth lies somewhere between the two explanations.
Only .03% of Indian Muslim women were affected by triple talaq. It’s not a major issue concerning Indian Muslims.
The triple talaq judgment actually won’t change the careful approach the Indian state takes to personal laws of the minorities.
The judges who gave their decision in favour of banning triple talaq delivered it from the theological ground that the practice isn’t mentioned in the Qur’an, and hence is not fundamental to the Qur’an.
They were perhaps mindful of the sensitivity and long-settled status of Muslim personal laws in the Indian context and the social dangers of rapid judicial interventions in a politically-charged environment.
Good changes must come. It’s better that they come gradually.
Sarwar Jahan Chowdhury is a freelance commentator on politics, society and international relations. He currently works at BRAC Institute of Governance and Development (BIGD).