Whose fight is it anyway?

The polar positions taken in the Supreme Court hearing on the triple talaq matter obfuscate a question fundamental to the issue: Women’s agency.

Written by Flavia Agnes | Published:June 12, 2017 12:17 am
triple talaq, triple talaq hearing, supreme court, triple talaq SC, NRI triple taalq, indian express, opinion If women are helpless, lack agency and have absolutely no say in the matter of their own marriages, the entire discussion seemed futile. Illustration by C R Sasikumar

At a recent meeting to discuss the plight of women married to Indians living abroad (“NRI marriages”), a woman lawyer from Punjab suggested pre-nuptial agreements with specific clauses to protect them against divorces in foreign courts on the ground of an irretrievable breakdown of marriage. The first response was that at the time of marriage, the brides lack agency and smart NRI grooms will manipulate the pre-nup to the detriment of women — a valid concern.

However, the next comment by a senior judge, that it would amount to aping the West where marriages are contractual, whereas Hindu marriages are sacred unions, took me by surprise. The official from the Ministry of Law and Justice, Government of India, added that parliamentarians will object to changing the sacramental nature of a Hindu marriage through the introduction of pre-nuptial agreements.

If women are helpless, lack agency and have absolutely no say in the matter of their own marriages, the entire discussion seemed futile.

This brought me back to the recently concluded triple talaq hearing and the agency given to Muslim women to include conditions in the nikahnama (marriage contract) to protect themselves in their marital home — a Quranic right given in the seventh century. And here we were, in the 21st century, still holding on to the notion of a sacramental Hindu marriage solemnised through rituals such as saptapadi and kanyadaan.

Muslim or Hindu, contract or sacrament, the arguments are the same: Women lack agency. They lack agency to say “no” to dowry despite a law in place, they lack agency to resist domestic violence despite a law in place, they lack agency to fight desertion, to enforce maintenance, child custody, residence, though each is a hard-won statutory right. What is going wrong?

However, these were not the concerns during the six-day intense hearing on triple talaq. Within the prescribed parameters, one had to state clearly, which side of the sharply drawn lines one’s arguments were located, even before uttering the opening comments — in favour of triple talaq or against it. This was further projected as: For women and against community, or, for community and against women, as though these are mutually exclusive binaries. The marathon debate revolved around the short question: Whether the Muslim marriage is dissolved instantly when the husband pronounces the three dreaded words, or it comes into effect three months later, to provide scope for retraction and reconciliation.

Everyone — from the presiding judges on the bench, to lawyers who thronged the packed court hall to be present at this historic juncture, to reporters jostling to get an exclusive byte from legal luminaries present — learnt a great deal about the pristine Muslim law — sahi Hadith to unauthentic Hadith and the grammar for determining it, which English translation of the Quran was authentic and the exact Quranic verses which dealt with the procedure for talaq.

As against the polarities of Sunni-Hanafi Ulama of the AIMPLB and the progressive Islamic scholars who battled it out to convince the bench of the accurate Islamic law, was the modernist approach of the attorney general, Mukul Rohatgi, who argued that the only way gender justice could be secured for Muslim women was to enact a law and bring all talaq(not just triple talaq) under judicial scrutiny. He did not pause for a minute to reflect on the situation of Hindu women under a “modern” Hindu law since that was not an issue before the court.

It was as though everyone was in a time-wrap, in seventh century Arabia. The core concerns of modern Muslim women who are believers — the burqa-clad women — with contemporary concerns, the marginalised, the middle class, slipped through the crevices. Hence, it is relevant to go back to the women who had approached the Supreme Court, seeking justice.

Shayara Bano has an MA in sociology, while her husband is a high school drop-out. A long history of domestic violence, dowry demands, taunts by in-laws, multiple abortions, failing health, being sent back to her parental home. In an interview, she reiterated that she does not intend to reunite with her husband, even if triple talaq is struck down.

Her concern today is the case she has filed in the family court for access to her children. On the last court date, the husband did not turn up with the children, a usual problem encountered by women in family courts. But why had she not filed for these reliefs earlier, before this controversy broke out?

What also did not get highlighted in the media hype was that when Shayara Bano refused to join her husband, he had filed a suit for restitution of conjugal rights, a modern remedy, in a family court in UP. Since Shayara Bano did not wish to return and wanted to contest, her brother contacted a lawyer in the Supreme Court to file a transfer petition.

It was then that the husband’s lawyer in the local court drew up the talaqnamaand sent it to her. So, instead of the transfer petition, the lawyer in the Supreme Court filed the intervener application, in the motureferral made by a bench in Prakash vs Phulawati in 2015, a case dealing with the rights of Hindu women to ancestral property. The hearing converted the problems of this modern middle class couple to that of Quranic precepts — triple talaq; yes or no. The bench was clear: No arguments on facts, only on the question of law.

The story of Afreen from Jodhpur is similar. She has a masters degree in business administration, her husband is a lawyer. The same old tale of violence, humiliation, adjustments, leaving home, reconciliation, another break up, a talaqnama, followed by further reconciliation attempts. The final break-up was when, with the help of some local activists she filed a criminal case under section 498A (cruelty) of the Indian Penal Code, and simultaneously, the intervener application in the Supreme Court.

How will the verdict help to secure her rights, where the core concerns are incompatibility, domestic violence and a talaqnama drawn by lawyers? Almost all earlier cases on triple talaq which were referred were when a deserted wife had filed for maintenance and the husband had sent the talaqnama under an erroneous presumption that it would extinguish the wife’s right to maintenance.

While the case may turn out to be a great professional booster for scores of lawyers, the women themselves do not see it as a game changer for them. Hindu or Muslim, the core concern is the same — women lack agency. They cannot enforce their rights, whether Quranic or statutory.

Divorced Muslim women have an additional right under the Muslim Women’s Act of 1986 — the return of mehr, belongings and a lumpsum settlement. The tragedy, none of the aggrieved women were aware of these legal remedies. The media and some women’s groups converted these core concerns into a hype over triple talaq, an issue already settled in Shamim Ara in 2002.

It was refreshing to note that several interventions endorsed this position canvassed by Majlis, for nearly two decades, despite the shrill demand for a “ban” on triple talaq during the campaign period. The recent article by Kapil Sibal (‘Beyond triple talaq’, IE, May 26) also attempts to move forward from the position he had argued before the Court: Non-interference in minority affairs, to protecting the economic rights of women, a position reflected in our written submissions before the Supreme Court.

While this is welcome, the affidavit filed by the AIMPLB reaffirms that while they are willing to take a circuitous route to wean out triple talaq, they will remain adamant regarding declaring it invalid, and thus extinguish the scope for the debate to move further: To women’s economic rights.

The writer is a legal scholar and women’s rights activist. She is founder and director of Majlis, an NGO, which was allowed by the Supreme Court to file written submissions in the triple talaq case

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  1. R
    Rohini
    Jun 28, 2017 at 2:40 am
    A modern remedy? TO what? rape? forced ..which is the same as rape? I am so angry with this author I am gnashing my teeth,..she thinks res ution of conjugal rights, one of the most ist, disgusting laws that exists in the Indian statute book is a modern remedy? Modern remedy for what, I demand to know. If i do not want to be with a man who is supposedly my husband, I can be forced into conjugal unuion with him by the courts? That's disgusting....and this lady calls it a modern remedy,,for a slave girl of the 7th C, maybe. Not for a 21st C wife who is looking for dignity...
    Reply
    1. R
      Rohini
      Jun 28, 2017 at 2:32 am
      REally, Falvia Agnes? And you call yourself a women's rights' activist? I
      Reply
      1. V
        Vishal Saurav
        Jun 13, 2017 at 4:52 pm
        Feminist always have double standard.. They want equality for women as per with men(nothing wrong in it) but want special preference for women everywhere, like in marriage where she want alimony and maintenance for divorcee wife even if wife is at fault including share from inherited property of husband. On other hand, they will oppose dowry. Such a hypocrisy. A marriage occurs between a man and a woman, but femi s like flavia want every law of marriage to be women centric. Are women something special? In this news piece also, they were discussing about 'protecting women from NRIs grooms who dessert them. But they will oppose any law to protect NRI grooms from women who dessert their NRI grooms and demand extortion money in the name of divorce settlement after fi criminal cases in India. Which law will protect such NRI grooms? And this is happening within India too, but in the name of women empowerment, no law to protect men.
        Reply
        1. M
          MyTake
          Jun 13, 2017 at 12:08 am
          Since the advent of Islam humanity lost half the human quality after making women in Islam an object, a commodity and trying to have full control over her life! And that is what the political Mullahs are fearing for fear of loosing their "territory"!
          Reply
          1. M
            MyTake
            Jun 13, 2017 at 12:03 am
            Islam mostly revolves around s e x, (4 wive, talaqs), cow and politics in the name of religion!! Very convenient isn't it! Allah had to deceive the human to bring His agenda - he must have been very bored in the Heaven since there is nothing new to do other than producing houris for the new comers. Name another job He is required to do there! By the way Muslim souls after death apparently lying in the grave until the day of judgement, so when do they meet their houris? Is it because of this there is so much "hurry" in destroying the world to advance the date of judgement so they can come to the houris quicker? Not to talk about Muslim women, do they get the houras after obeying all the norms of 4th wive, a ground for tilting and Tripple Talaq or do they still stay in graves even after the judgement day? Do some intelligent inquiries rathar than doing politics with your so called religion!
            Reply
            1. M
              MyTake
              Jun 12, 2017 at 11:54 pm
              Just leave this oppressive religion and get a human life! Just live as human and nothing else! There are many more important things to do rather than discusing this non-productive issue day in and day out!
              Reply
              1. R
                RJ
                Jun 12, 2017 at 10:17 pm
                This article is not worth the paper it was written on. The author was a hot-shot socialite during the dark days of congress rule, enjoying perks and high-life at taxpayer's expense, courtesy of her connections in the congress leadership. She and her ilk are now writhing like fish out of water because they no longer enjoy government patronage. The author does not have the honesty or courage to come out and say openly that 3T is wrong and has no place in a modern society. Instead, she writes a ream of words that make no sense and uses hindus as a punching bag. The author is a mercenary hack, repaying her political masters and hoping for their return. People like her are the worst enemy of India, eating away the country from the inside, like termites.
                Reply
                1. E
                  Employ Ment
                  Jun 12, 2017 at 8:28 pm
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