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Monday, December 16, 2019

In bad faith

On triple talaq, let’s not misrepresent the law and the facts. It is for the SC to decide what rights and protections need to be granted and what limitations (if any) may be placed on such rights.

Written by Balaji Srinivasan | Updated: June 27, 2017 6:53:56 am
 triple talaq, triple talaq laws, islam laws, triple talaq-illegal, supreme court, triple talaq divorce, gender discrimination, indian express One must await the outcome till the apex court pronounces its judgment. (Representational Image)

The Indian Express carried an opinion piece relating to the triple talaq case headlined ‘Whose fight is it anyway?’ (IE, June 12). The said piece betrayed complete disregard to the facts relating to the case. The piece was not really concerned with the truth of Shayara Bano’s writ petition or the Shamin Ara judgement, both of which were referred to in the article and distorted by utter misrepresentation. All of this is in addition to the fact that the opinion piece questioned the motivation of the lawyers representing the petitioner-women and, even worse, the motivation of the women themselves.

To begin with, the piece alleges that Shayara Bano’s brother contacted a lawyer in the SC to file a transfer petition, who filed an “intervener [sic] application” instead of a transfer petition. First, no intervention application was filed by Bano — it is a very well-known and widely reported fact that she filed a writ petition and the All India Muslim Personal Law Board “intervened” in the case. Second, a transfer petition was filed (much prior to the writ petition), seeking to transfer from Allahabad to Kashipur, a case filed by Bano’s abusive husband seeking restitution of conjugal rights (which the piece laughably refers to as “a modern remedy”, but more on this later).

A writ petition is the only remedy to secure the enforcement of fundamental rights. To end gender discrimination, Bano filed a writ petition challenging instantaneous triple talaq (talaq-e-biddat), nikah halala, and polygamy. The thrust of her case was that she cannot be denied her fundamental rights, to which all citizens are equally entitled, merely on the basis of her religion. The hope was to secure the fundamental right to live with dignity unmarred by discrimination, which transcends religious lines, especially in this era of human rights and international covenants decrying gender discrimination. Accordingly, Bano’s writ petition states: “There is no protection against such arbitrary [instantaneous triple talaq] divorce. Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power. Such discrimination and inequality hoarsely expressed in the form of unilateral triple talaq is abominable when seen in light of the progressive times of the 21st century.”

The opinion piece also asserts, without basis, that the women petitioners themselves do not see the case as a “game changer”. Given that the piece was written with utter disregard for the facts, one wonders what magical powers enabled such a conclusion to be drawn! One also wonders how the declaration of instantaneous triple talaq as illegal (as done by many Islamic States including Pakistan and Saudi Arabia) will not be a “game changer” for the Muslim women of India who seek freedom from oppression and gender discrimination.

The article questions how the verdict of the triple talaq case will help to secure the rights of Muslim women, given that their “core concerns are incompatibility, domestic violence and a talaqnama drawn by lawyers”. This is the most myopic and presumptuous view possible. The petitioner-women are not proverbial “frogs in the well” who must only think of securing marital bliss with abusive husbands; rather, they sought to challenge oppression and gender discrimination that offended their human right to live with dignity. Unfortunately, the article decided for the women-petitioners what their “core concerns” are, or should be! It was, however, not very surprising, given that piece declared restitution of conjugal rights a “modern remedy”. For the uninitiated, abusive husbands are able to use the said remedy to coerce their wives to return to the matrimonial home and subject them to further abuse/cruelty, including marital rape.

The opinion piece also offers an incorrect legal opinion. Given that the triple talaq case was heard for six days by a Constitution Bench of five judges, one wonders what legal qualifications or enlightenment form the foundation of the opinion that the issue of instantaneous triple talaq is “already settled” by the Shamim Ara case of 2002. Most worryingly, such legal opinions founded on ignorance and/or willful disregard for the truth tend to misguide the general public. They also tend to try a pending legal matter by way of public opinion fostered by a media trial. Let it, therefore, be clarified that the incorrect opinion was expressed despite the Supreme Court having orally rejected that the Shamin Ara case has settled the issue.

In their fight for the right to a life of dignity unmarred by the trauma of gender discrimination, the women-petitioners certainly do not need to be educated what their “core concerns” should be and what will be a “game changer” for them. It is for the SC to decide what rights and protections need to be granted and what limitations (if any) may be placed on such rights. One must await the outcome till the apex court pronounces its judgment.

The writer represents Shayara Bano, the petitioner in ‘Shayara Bano versus Union of India and Others’, widely referred to as the triple talaq case

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