Why the triple talaq case before SC is different from Shah Bano’s in 1986

New set of petitioners in Shayara Bano reflect the change in issues and attitudes from three decades ago

IN OCTOBER last year, a two-judge Bench of the Supreme Court, while hearing another matter having little to do with Islamic law, decided to suo motu ask the Chief Justice to set up a Bench to examine gender discrimination against Muslim women, especially “arbitrary divorce”.

The case snowballed with the addition of other petitions, and after all impleadments were considered by Chief Justice T S Thakur recently, hearings have been scheduled for September.

The matter comes 30 years after the controversial Shah Bano maintenance case, which resulted in Parliament passing a law to override a Supreme Court verdict giving a divorced Muslim woman a fairer maintenance than what she got under personal laws. Muslim clerics led by the All India Muslim Personal Law Board (AIMPLB) — enraged by what they saw as interference at a time when politics in India was almost tinderbox like — were able to convince Rajiv Gandhi’s Congress that the court’s judgment eroded Islamic identity.

The debate was successfully framed as an Islam-versus-women’s rights issue, and Shah Bano became a part of the Babri Masjid-and-kashmir idea of injured Hindu pride in India. The argument being, when Hindus have had to codify and reform laws (something which the Hindu Right opposed tooth and nail when Law Minister B R Ambedkar and Prime Minister Jawaharlal Nehru proposed it in the 1950s, leading to Ambedkar’s resignation), why then should Muslims be allowed to get away without similar codifications and laws.

Now, three decades on, is the re-emerging debate still going to go the Shah Bano way — and is it likely to end up as a victory for both the Hindu Right and the Muslim Right?

In the petition before the court now, some things do indeed appear to mirror the 1986 scenario. Such as the view of the Rss-driven Rashtriya Muslim Manch, which argues that its opposition to triple talaq and the nikah halala (an intervening marriage necessary if the old marriage has to be restored) means that there has to be a Uniform Civil Code. The AIMPLB is there too — arguing, as it did then, that there can be no debate or intervention by courts on a matter of personal law.

But there is another set of petitioners who make this case different. The Bhartiya Muslim Mahila Andolan (BMMA) is intent on making it a triple talaq versus Islam debate — which would change the rules of the game for the older set of rivals.

The BMMA’S arguments begin with wanting triple talaq and nikah halala to be struck down as being unislamic, and antithetical to Islam itself. It is not as though scholars have not argued this earlier — and to those familiar with Islam, inheritance rights, and the notion of marriage as a contract being evidence of the religion treating women as equals, are equally familiar. The fact that the Prophet’s wife was a widowed businesswoman, fifteen years older to him, and his youngest wife Ayesha led a contingent to battle, have been cited as ‘proof’ of Islam being inherently equalising. Practices from ‘jahiliya’, the so-called age of ignorance before Islam, like the purdah, chador, etc., having left their mark on regional practices and being confused with Islamic practice, have made it considerably difficult to argue that position, though.

What is likely to sneak into and impact the argument also are changes that have taken place since the 80s — both within the Islamic community and outside of it. Before Shah Bano came Nikaah, the 1982 film by B R Chopra, which popularised and framed the problem for many — in which the Pakistani actress Salma Agha played the divorced and crushed Muslim woman and the now Congress Rajya Sabha MP Raj Babbar, the second husband. Things have moved on since.

In today’s age of connectivity, with the Quran and scores of its interpretations being available on mobile phones, Muslim women have more agency, their literacy rates have risen, and their participation in the workforce, though still not at a desirable level, is much higher, say petitioners who have conducted campaigns and raised awareness levels. Debate and conversation about these matters is more prevalent. In the aftermath of the 9/11 attacks, several mainstream Muslim clerics who might otherwise not have made a case for gender equality, found themselves citing Islamic feminism to back the presentation of their faith as a modern idea. A combination of these factors working outside India, and a proliferation of role models and their popularity, have encouraged Indian Muslim women to interrogate ‘the spirit of Islam’, and their place in it.

As far as the specifics of what is being argued in the current Shayara Bano matter goes, the disagreement is between those who see Islamic law itself as opposed to the idea of equality enshrined in the Constitution and those who argue that triple talaq and nikah halala are not Islamic, only have credence among a section of Muslims — the Hanafi tradition — and are not held as rightful by Quranic verses.

And what of the Uniform Civil Code argument? The fact that most see the Code as just an extension of the Hindu law is a problem, and there is little chance of other faiths accepting it, or agreeing to practices that may not draw at all from their respective faiths. The Special Marriages Act anyway exists for those for whom faith is not central to companionship, or for those who marry across faiths, or even caste.

The Rss-inspired petitions would likely want to use the opportunity to make a case for Islam versus good sense. And it is up to Muslim clerics — mostly men who said ‘do not interfere’ three decades ago — to back the statements they make on their faith having been egalitarian even in the seventh century. Falling back into jahiliya is not an option.