No Rest for Women Yet! Silence on Muslim Woman’s Right to Divorce

The triple talaq verdict is a step towards Civil Code but doesn’t address the issue of woman’s right to divorce.

The Supreme Court has pronounced its decision on triple talaq in favour of Muslim women. The threat of being summarily divorced, of being thrown out of one’s home and of becoming dependent on a father, a brother or a son is finally taken care of.

But is that really case? Has the proverbial sword perpetually hanging over a Muslim woman’s head finally been removed? Women have been fighting for this for years, the decision of the honourable court has been welcomed with jubilation and women’s groups all over the country deserve this happiness. But this joy is also accompanied with some apprehensions.

Also Read: SC Strikes Down Triple Talaq, But Does Little for Gender Justice

What About a Woman’s Right to Divorce?

Triple talaq has been made illegal, but what does this decision give to Muslim women? After a short period of two months and twenty days, since the hearing began, the judgement means to try and persuade the man to forgo the idea of divorcing her, overcome his anger/intoxication/impulse, put moral and social pressure on him through moderation of friends and relatives and to get her own financial and social responsibilities in order.

But it is still the man who takes the final decision to divorce the woman. The honourable court has made no comment on a woman’s right to contest the decision of the man to divorce; she just has to accept it.

Too caught up to read? Listen to the story:

Also Read: Big Questions Answered: Decoding SC’s Triple Talaq Verdict

Option of ‘Khula’

Nowhere is there a mention of a woman’s ‘right to choice’ and that she should also be able to walk out of the marriage with as much ease as a man.

The Ullema and AIMPLB claim the Quran has a provision for ‘Khula’, which is a woman’s right to ask for a divorce. The difference is that a woman has to ask/request a ‘khula’ and often the man refuses because in a patriarchal set up, men feel humiliated if a woman decides to walk out of marriage.

The woman then has to persuade, beg, cajole and often offer him money or property. She also has to forgo her dower or ‘meher’ or return it if she has already claimed ownership of it. Even when the man finally agrees to the divorce, it is he who pronounces the ‘talaq’ and ends the relationship, and not the woman.

The man need not pronounce ‘talaq’ to the woman demanding ‘khula’, still the Islamic law allows him to marry again since he can have four wives and not divorce the first one.

Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?

Halala: Humiliating Form of Punishment

A 2015 survey of about 5,000 women across 10 states by the Bharatiya Muslim Mahila Andolan (BMMA) found that over 90 percent wanted an end to polygamy and triple talaq. Of the divorced women surveyed, 78 percent had been given triple talaq; 76 of these women had to consummate a second marriage or halala so that they could go back to their former husbands.

Halala is the most humiliating punishment where a divorced woman wishing to reunite with her former husband has to be married to another man first and divorced before she can do so.

Though this decision is being compared to the Shah Bano case, it is important to remember that Shah Bano was asking for maintenance and not an end to triple talaq.

Also Read: Triple Talaq Verdict: Muslim Women Are Cheering – But So Is BJP

Nowhere does yesterday’s judgement talks of a woman’s right to maintenance or the custody of her children.

Ball in Parliament’s Court

The onus is now on the Parliament to draft a bill and see to it that a law comes into effect. The BJP has a thumping majority and the bill can sail through both the houses if they have a will.

But will the law address all these issues which would acknowledge and provide the same Constitutional rights to an Indian Muslim woman as a Hindu woman?

Political parties have so far used this issue more to ‘thumb nose’ or ‘protect’ the Muslim community than to address the issue of gender justice. Now the Congress and the BJP seem to be on the same page. The Prime Minister has welcomed the decision of the court. The next six sessions before the country goes for general elections are the ones to watch and pressurise the government for doing so.

Also Read: Javed Akhtar Reacts to SC’s Landmark Triple Talaq Verdict

Step Towards Building a Civil Code

Asaduddin Owaisi and others have already begun talking about a Uniform Civil Code (UCC) which was part of the BJP’s election manifesto. They are apprehensive that this verdict might become the first step towards the UCC.

Hopefully this would allow public discussion on personal laws of different religions, not just by the religious heads and scholars, but also by the general public and concerned citizens and would encourage a cross-faith dialogue to build a Civil Code that would provide justice and equality to all Indians.

Also Read: End of Triple Talaq a Start, But Gender Justice Is a Long Way Away

(The writer is President, National Federation of Indian Women (Delhi) and President, Indian People’s Theatre Association (Delhi). She is the author of ‘My God is a Woman’ and ‘Denied by Allah’. The views expressed above are the author’s own.The Quint neither endorses nor is responsible for the same.)

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