The next target should be polygamy
If triple talaq can be challenged in the top court, other regressive laws must also be reviewed
Ihad the good fortune of defending the Supreme Court judgment in the Shah Bano case in Parliament in 1985 and to argue on behalf of Muslim women in the Supreme Court challenging the constitutional validity of instant triple divorce in 2017. The Shah Bano judgement came after changes in the CRPC which included the ex-wife in the definition of wife. Shah Bano was a textbook case where she was first deserted by her prosperous lawyer husband 40 years after marriage and three years later when she approached the court, the husband used the instrument of instant divorce and asserted that he was not liable for any payment beyond the Iddat period, that is three months.
The court, in the light of new law that is section 125 of CRPC, decreed in favour of Shah Ba no and ordered the husband to pay a pal try sum of less than ₹ 250 per month. The matter went to higher courts and finally the Supreme Court up held the judgment of the lower court in favour of Shah Ba no. At this stage the Muslim Personal Law Board jumped into the fray and began or ga ni sing protest meetings saying that if this judgment was not reversed it would obliterate the community identity (Milli Tashakkhus ) of Muslims. It was the same divisive argument that was advocated by the Muslim League before 1947. At that time, it was asserted that Muslims were a separate nation, now it was asserted that the Muslims have a separate identity.
The Muslim Personal Law Board built up such pressure that the government was forced to take cog ni san ce of it. To its luck, even Congress leaders such as Na ra sim ha Rao and Arjun Singh held the view that the Congress Party cannot perform the role of a social re former for Muslims and advised the prime minister not to en danger the political constituency of the party by ignoring the demands of the Personal Law Board. Rajiv Gandhi, the young Prime Minister, could not ignore this advise and agreed to bring a legislation to reverse the judgment. The announcement to this effect created such a massive backlash that within a few days the government was forced to do something to manage the adverse reaction and at this stage Ayodhya came in handy to dive rt public attention from the Shah Bano verdict.
I resigned the day the Bill was introduced on February 23, 1986. During the discussion, not a single minister of the government def ended the Bill on merit. They were simply said that there was an apprehension of a breach of peace. It sent out a message that the parliamentarians were not doing it because it was the right thing to do. They were doing it because they were fearful of Personal Law Board and its threats. I resigned because in August 1985, I had taken almost 60 minutes to defend the judgement in Parliament. Rajiv Gandhi wrote a small note congratulating me for the reaction that my speech had elicited. Six months later, the government decided to bring a legislation where the specific intent of the Bill was to reverse the judgement. I had defended that very judgment in Parliament.
The Supreme Court judgment of 2017 is a victory for Muslim women and their organisations. The women who have fought this case lacked resources or any organised support system and yet they persevered.
This is a historic judgment that will pave the way for an ewe rain this country. The 2017 Supreme Court judgment will not only have a liberating effect on Muslim women — the threat of triple talaq that hung over their heads has been removed — but it also sends out a strong message of gender equality. It is a great source of inspiration even for non- Muslim women too. If these poor Muslim women without any resources can fight their battle successfully, why can’t others?
The Supreme Court has used the word ‘unconstitutional’ to describe triple talaq in a majority judgment. The door is now open and other provisions like polygamy can be challenged on the basis of its being arbitrary and unilateral. In fact my understanding is that like triple talaq, the unrestrained right to polygamy also finds no sanction in the Q ur an.
In matters of social reform, the path is never smooth. You will hear about many cases where them an will still make three pronouncements and the woman will refuse to move out saying there is no legal sanction for triple divorce. And if she chooses to go to the police, it will be a fit case for prosecution under harassment and mental torture. If in two or three cases effective action is taken, peoplewill simply forget about triple divorce.
This judgment brings to my mind an observation of Pandit Jawaharlal Nehru. Sometime in the mid-1950s, Taya Zinkin, a correspondent from The Guardian, London had interviewed Panditji. She asked him what he considered his greatest achievement in life? Panditji had said: “I succeeded to secure rights for my Hindu sisters which were denied to them for centuries.” Then she asked and what his life’s greatest disappointment was ? Panditji shot back: “I could not achieve the same for my Muslim sisters.”