A few months after her husband divorced her with a simple telegram in 2015, Shayara Bano, a 35-year-old mother of two, went to India’s Supreme Court to seek justice.
She petitioned the court to ban not only “triple talaq” (the practice allowing a Muslim man to say the word “talaq” three times to divorce his wife), which allowed her husband to end their marriage so quickly, but also polygamy and nikah halala – the practice which forces a divorced woman to marry another man and consummate her marriage before being allowed to marry again her former husband.
Since then the case has stirred much debate and controversy in India. The ruling Bharatiya Janata Party (BJP) has very vocally come out in favour of banning triple talaq.
Even though its affidavit in the Supreme Court in the Shayara Bano case demanding a ban on triple talaq does not make any reference to uniform laws, many see its sudden championing of Muslim women’s right as a step to introducing a Uniform Civil Code (UCC), which will impose the same rules in family law across all religious communities in India.
The potential passing of UCC has long been opposed by various Indian religious groups who insist on resolving family matters within the religious framework of their communities.
The law commission of India recently came out with an open questionnaire, asking for people’s opinions on a UCC.
In response, the conservative Islamic leadership has denounced Bano’s petition and accused those in favour of infringing on the freedom of religion of the Muslim community.
And we at the Bhartiya Muslim Mahila Andolan organisation, along with others supporting our cause, have found ourselves between the hammer and the anvil.
The existence of secular legal alternatives does not mean that there should be no reforms in personal Muslim law, and that Muslims who do not agree with the current conservative status quo should have to use a secular law to resolve family matters.
On the one hand, some “liberals” call us “anti-reform” for being against their proposal of a UCC. On the other hand, conservative Islamic leaders, such as the All India Muslim Personal Law Board, have branded us as “traitors” and called us and all of our studies “fake” for insisting that there should be reform in the way Islamic law is practiced in India.
Despite these attacks, we stand firmly by our position that gender-just reforms have to be introduced into the Muslim community, but that they have to come through equality-seeking interpretations of the Quran and Islamic law, not through a universal family law imposed on the community from above.
Why are we against UCC being forced on all communities?
The political right has been advocating a Uniform Civil Code since the framing of the Indian constitution. In the debate on a ban on triple talaq, however, the present government’s emphasis has been on gender justice, and we welcome its support of our cause of a complete ban on triple talaq.
It is important to note that there has never been a draft of such a uniform law presented to the public for debate or discussion.
At the same time there are already a number of laws like the Special Marriage Act, which provide a secular alternative for those who want it. This law allows Indians to marry and be governed by secular civil laws, irrespective of the faith followed by either party. Therefore, there is no need to impose on everyone secular civil code.
At the same time, the existence of such secular legal alternatives does not mean that there should be no reforms in personal Muslim law, and that Muslims who do not agree with the current conservative status quo should have to use a secular law to resolve family matters.
In our opinion, religion cannot be regarded as a private matter alone because religion is an essential part of the identity of the majority of the women in India.
We recognise this and we have adopted it as a guiding factor in the formulation of our movement’s vision and approaches as well as in its expression of a collective identity.
What are we in favour of?
As the debate on triple talaq rages on, a number of Indian Muslim organisations headed by male clergy refuse to even sit and have a civil dialogue with Muslim feminists and other liberal voices of men and women.
In the current climate of fear of “identity” appropriation of the Muslim community by the political right, such organisations have taken to social and traditional media to garner the support of the masses and called for a nationwide protest against reforms.
They present our call for reform as a political attempt to interfere in communal affairs and denounce it as perceived interference with the “divine”, even though Islamic law as practised in India is man-made law.
One of these organisations, the All India Muslim Personal Law Board, in its affidavit to the Supreme Court rejecting Bano’s petition has gone as far as arguing:
“[L]egal compulsions of time-consuming separation proceedings and the high expenses of such a procedure may deter him [the husband] from adopting such a course and in extreme cases he may resort to illegal criminal ways of getting rid of her [wife] by murdering her. In such cases, triple talaq, is a better recourse in comparison to these illegal ventures.”
We reject such narrow-minded thinking and view it as a very harmful understanding of Muslim women’s rights where a threat such as murder is being used to legitimise something as barbaric as triple talaq.
Instead we call for the progressive interpretation of Islam, using “ijtihad” (the exertion of a Muslim jurist to deduce legal rulings from Islam’s sacred texts) and working within a framework which the Muslim community accepts. We have to fight for women’s rights, both within and outside the family.
What we see as the only solution to the present predicament is the codification of Muslim Personal Law (MPL) and we have already prepared a draft for debate and discussion.
The draft calls for the fixing of a minimum age of marriage for boys at 21 and girls at 18, and strictly prohibits polygamy, nikah halala and triple talaq while also addressing issues such as dowry and maintenance.
A survey we have conducted shows that Muslim women overwhelmingly support such a move. More than 80 percent of the 4,700 surveyed were in favour of codification of Muslim law. Furthermore, 91 percent of those surveyed supported a ban on triple talaq.
This codification, with consensus from academia, progressive Muslim scholars, lawyers, and women on the ground, can go a long way in addressing the existing contradictions between Islamic law as currently practised in India and women’s right to equality and justice.
This approach is also in agreement with the practice of non-interference with personal laws of communities without their initiative.
With this initiative we aim to pull the debate out of the political arena and refocus it on the gender concerns and human rights.
By depoliticising the debate, we want to put Muslim women at the centre of the issue and have them reassume the role as the rightful agents of transformation within their own lives.
Mariya Salim is a Kolkata-born Indian citizen with a degree in human rights law from the School of Oriental and African Studies, University of London. She has been working in the development sector for five years, with a special focus on women’s rights.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.