Updated: August 22, 2017 10:00:45 pm
The Supreme Court avenged itself this morning, 32 years after former prime minister Rajiv Gandhi overturned its 1985 verdict which had given 62-year-old Shah Bano the right to alimony from her husband, who had thrown her out after living with her for several decades and siring five children.
Much is being made of the five-judge bench – all men, of course – of different faiths who delivered a stunning 3-2 verdict, declaring “unconstitutional” the common enough Indian Islamic practice of “talaq-e-biddat,” or instantaneous triple talaq. In this heretical and distorted version of the faith which finds no place in the holy Quran, a man who utters the word “talaq’ three times is deemed to have declared his marriage to a Muslim woman null and void.
Several men have been known to do this over Whatsapp and Skype as well, while others prefer the relative intimacy and familiarity of the telephone line. No matter. Several imams, including the one in Kashipur tehsil in Uttarakhand near where the main plaintiff Shayara Bano (along with four other women) lives with her parents – his name is Ataur Rehman – had the following to say, in April last year, when the ‘Indian Express’ asked him why he was supporting Shayara’s husband who wrote out “talaq, talaq, talaq” on a piece of paper and handed it over to her :
“The best way of giving talaq is for a Muslim man to utter it once, give the woman some time to mend her ways, utter it again, give her some more time, before making the third and final utterance. However, even if it is uttered thrice in one go, it is valid. Kami auraton ki bhi hoti hai. Bina wajah koi aadmi talaq nahi deta (Women are also at fault. No man gives talaq without a reason),” Ataur Rehman said.
The media is also celebrating the fact that each of the five judges who delivered the judgement belongs to a different faith, as if this is an “Amar, Akbar, Anthony” moment. As if the fact that Justices J S Khehar is Sikh, Kurian Joseph is Syrian Christian, Uday Umesh Lalit is Hindu, Rohinton Fali Nariman is Parsi and Abdul Nazeer is Muslim, has anything to do with the fact that the Constitution is above all religions and guarantees to each of its citizens the right to life and liberty.
Certainly, the views of Justices Kurian Joseph, Rohinton Nariman and UU Lalit were more pathbreaking than the other two as they asserted, “triple talaq may be a permissible practice but it is retrograde and unworthy. Since triple talaq is instant it is irrevocable and the marital tie gets broken, it violates the right to equality.
They added, “what is sinful under religion cannot be valid under law.”
While Justices Khehar and Abdul Nazeer, leaning towards caution, agreed that triple talaq may be “sinful” but it wasn’t the court’s business to interfere in personal laws which were protected under the Constitution. They wanted Parliament to legislate and not leave it to the courts to sort out the matter.
But Justice Kurian Joseph was having none of it. Disagreeing with the chief justice he pointed out, “There cannot be any Constitutional protection to such a practice.”
The comments by both Justices Khehar and Nazeer brought back uncomfortable memories of that other Parliament in 1986 which, indeed, did legislate on the matter of the Muslim Women’s Bill – but instead of supporting and validating the Supreme Court’s verdict the year before, Rajiv Gandhi used his monstrous majority in the Lok Sabha to overturn a perfectly fair and righteous judgement and declare it invalid.
The country was consumed by the debate. On one side was the fresh-faced Rajiv Gandhi, catapulted to the throne after his mother’s assassination two years ago, who had promised to drag India into the Age of Modernity, the “computer age.” On the other side were the old-fashioned imams and Muslim theologians who insisted that Shah Bano had no right to her husband’s alimony, if he did not deem it so. That she must return to her even older parents, and after them god forbid, to the local wakf for maintenance.
There was no question what side Rajiv Gandhi, that golden boy, would choose.
Much after he had walked across to the dark side, we were told that Rajiv Gandhi had been badly advised. He had been told that the Congress party “would lose the Muslim vote,” and that he should not listen to the wilful entreaties of those who lived within the Delhi Beltway circumscribed by Sujan Singh Park, Amrita Shergil Road and Safdarjung Road (10, Janpath came much later).
The facts were clear enough. Mohammed Ahmed Khan, a reasonably wealthy advocate in Indore, had married Shah Bano in 1932 – around the time the third British government-brokered Round Table Conference had taken place in London, on the advice of Mohammed Ali Jinnah, to discuss the growing demand for “swaraj” or self rule.
After 14 years of living with her and five children, i.e. in 1946, Ahmed Khan took another younger and presumably more beautiful woman as his second wife. The Second World War was over and India was convulsed in the fires of the freedom struggle. After several years of living with both of them, he threw out 62-year-old Shah Bano in 1978, saying that he couldn’t afford to pay her monthly maintenance of Rs 200.
Shah Bano went to court. The Supreme Court ruled in her favour in 1985. Rajiv Gandhi didn’t have the nerve to stand up to the pragmatists and the realists who advised caution. He should have listened to his heart, to his soul, to his modernist inclination.
Arif Mohammed Khan, then a card-carrying member of the Congress party, refused to follow Rajiv’s diktat. Again and again, he advised against capitulating to the mullahs. Arif would turn out to be right in the years that followed. In 1987, the year after Shah Bano, Rajiv Gandhi would order that the locks on the Babri Masjid be opened. By then he would be embroiled in the Bofors bribery allegations. In 1989, the golden boy would lose the elections to VP Singh. In 1992, the Babri Masjid would be demolished.
The Shah Bano case would go down in history as the case that caused the great unraveling. No other Gandhi has since come to power. The BJP has since gone from strength to strength – as president of the party, LK Advani would take the number of seats in the Lok Sabha from two in 1984 to 88 in 1992.
All politics is about capturing that moment in history; all history is about politics, anyway. So when prime minister Narendra Modi realized that Muslim women were chafing under the burden of both illogical convention and patriarchal fatwa, he decided he would hitch his bandwagon to the journey. The irony of the BJP drawing out the souls of Muslim women, while “gau-rakshaks” attack Muslim men on the suspicion of carrying beef is the stuff of a Kafka novel.
Meanwhile Shayara Bano, a young sociology graduate and the eldest of four siblings, was married off to Rizwan, a property broker in Allahabad. She was forced to undergo several abortions because Rizwan wouldn’t get a vasectomy or tubectomy, because he believed they were “haram.” He refused to let her meet her sister. He denies beating her but soon enough he asked her father to come and take her home. The triple talaq arrived soon, in a letter.
Shayara Bano went to the Supreme Court, along with four other women. They insist they aren’t challenging the Quran’s admissible right to divorce over 90 days, just this particularly heinous “talaq-e-biddat.”
From Shah Bano to Shayara Bano, its been a long journey for Indian Muslim women challenging governments to uphold their rights to life and liberty under the Constitution. Today is a day to celebrate one stop on that journey.
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