Personal laws often draw from regressive and patriarchal traditions and threaten vital constitutional rights.
“I do not know when and where he gave me a divorce,” reads an account of Rojakammal from Tamil Nadu, one of the cases brought forth by the Bharatiya Muslim Mahila Andolan.
The BMMA is an Indian Islamic feminist organisation which brings forth the plight of the ordinary Muslim women in India who constantly live under the fear of being unilaterally divorced by their husbands.
More than 50,000 Indian Muslim women and men have signed a petition demanding a total ban on the “un-Quranic” practice of the unilateral triple talaq or divorce and “nikah-halala” under the mantle of the BMMA.
In 2016, Shayara Bano and Afreen Rahman, unilaterally divorced by their husbands, approached the Supreme Court of India, demanding an end to triple talaq, seeking justice from the courts to nullify a practice which is not only unconstitutional but, according to the BMMA and a number of scholars, also “un-Quranic”.
Both cases have opened a Pandora’s box, and now the question of whether it is the right time to abolish the practice in India is being debated by all quarters of the media and civil society.
Over the past six years, the BMMA has been working with hundreds of women who have been suffering as a result of a unilateral divorce.
What makes the conditions of these women worse are sanctions from religious seminaries.
Darul Uloom Deoband, one such revered seminary, has often validated divorce given by a husband on the phone, by written communication, and also where a husband repeats the word
“talaq” thrice, even in the absence of his wife.
According to the findings of a BMMA study, more than 90 percent of the 4,710 women interviewed wanted a ban on unilateral divorce.
“Triple talaq creates a power dynamic in a marriage which is greatly in favour of the man and oppressive to the woman,” says filmmaker Shazia Javed, who is currently working on a documentary project on the issue, called 3 Seconds Divorce.
After the Shah Bano verdict of 1985, when a court granted a 70-year-old divorcee maintenance for life, and the controversial Muslim Women Act – which was passed to overturn it when that judgement created uproar as being intrusive and against Muslim laws by the All India Muslim Personal Law Board (AIMPLB) and others – there has hardly been any evident effort by the state or the judiciary towards reviving the process of reform towards gender-just laws.
With the Muslim community entangled with issues concerning its identity and socioeconomic security, working towards securing the basic human rights of Muslim women seems to have been relegated to the background.
With a legal system that is not conducive for the poor to reap benefits from or even access it, individual efforts by women are difficult to sustain.
It is important to note, however, that there are a number of personal law cases where the courts have made very progressive judgements, such as those in the Shamim Ara vs State of UP. Supreme Court nullified arbitrary triple talaq, and opined that talaq has to be pronounced as per Quranic injunctions in order to be valid.
Although a good precedent, in the absence of any codified Muslim personal law (MPL) there can be no guarantee to always achieve similar outcomes.
Moreover, with a legal system that is not conducive for the poor to reap benefits from or even access it, individual efforts by women are difficult to sustain.
When there was an effort to address the issue – as faced by women in general, no matter what religion they follow – the Supreme Court did not address it, stating that it was outside the scope of its jurisdiction to make laws for social change.
“We welcome judgements which have helped Muslim women in their struggles. A directive from the Supreme Court to completely abolish triple talaq, advocating for the ‘Ahsan’ method to be followed instead, and it being translated into law, is what we seek,” says Dr Noorjehan Safia-Niaz, cofounder of the BMMA.
Another cofounder of the BMMA, Zakia Soman, argues: “One major misinformation spread by conservative Muslim groups that needs correction is that if the courts or the legislators speak up in favour of reforms in MPL, it is an intervention, which is conflicting with the right to freedom of religion.
“When organisations like the AIMPLB stand against Muslim women demanding their basic rights from the courts, it is they who are overstepping constitutional boundaries and denying women rights which are not only in accordance with the prevalent laws, but are also Quranic,” declares Soman.
“Freedom of religion cannot be allowed to translate into superior rights for men over women. Our gender-just demands are not only constitutional but also based on teachings from the Quran,” add Niaz and Soman.
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.