Ending instant divorce is a victory. But Indian women have a fight ahead

An Islamic practice allowing men to end a marriage by saying ‘talaq’ three times has been declared unconstitutional. We can now challenge other harmful norms

Feminists and rights activists have expressed shock at the Supreme Court’s decision, which was taken without consulting Akhila, who prefers to go by her new Muslim name, Hadiya.

“[ The] Constitution upheld by the court is the only place where young couples can hope to get protection and justice. And it is dangerous for the court to start saying such things,” said Kavita Krishnan, the secretary of the All India Progressive Women’s Association (AIPWA).

“It is not just her freedom to choose, her physical freedom has also been curtailed. She is effectively a prisoner at her father’s house right now. She is not allowed to go outside her house and she is not even allowed to meet journalists.”

Hadiya has been under the custody of her father in Kottayam since May against the wishes she expressed to the Kerala high court.

“I am shocked by what the Supreme Court has done. The Kerala high court judgment was so shocking that most of us assumed that the Supreme Court would stay the judgment immediately,” said Sanjay Hegde, a Supreme Court lawyer.

“[ But] the political narrative that these [interfaith] marriages are done as a cover of terrorist activities are finding tractions in the courts,” he added.

Hadiya was introduced to Islam by her friend and subsequently converted. In December last year, she chose to marry Jahan, a Muslim man.

Does ‘Love Jihad’ even exist?

Some far- right Hindu groups have portrayed interfaith marriages as a Muslim conspiracy to destroy Hinduism in India.

The term “Love Jihad” was first mentioned in around 2007 in Kerala and neighbouring Karnataka state, but it became part of the public discourse in 2009. It was originally referred to as “Romeo Jihad”.

Catholic Church bodies in Kerala and Hindu groups in Karnataka in 2009 claimed that thousands of women had been coerced or lured into converting to Islam.

That same year, the Kerala High Court ordered the police to look into the claims. In 2012, the police categorically declared that there was “no substance” to the claims that “Love Jihad” was taking place.

The 2009 case of 18-year-old Silija Raj, who eloped with her Muslim boyfriend in Karnataka, was used as propaganda by far-right Hindu groups to peddle the “Love Jihad” myth.

The term was widely used by the ruling Bharatiya Janata Party (BJP) of Prime Minister Narendra Modi during elections in northern Uttar Pradesh state, contributing to the polarisation of the electorate along religious lines.

“There is nothing that proves that “Love Jihad” exists. It is a way to control women and to build up the bogeyman of evil Muslims,” Charu Gupta, a professor of history at the University of Delhi, said.

Historical comparisons

Similar tactics were used by far-right groups when India was still under British rule.

“It is significant to note that in certain ways “Love Jihad”, and the various issues it touched on, had an uncanny resemblance to the ‘ abduction’ and conversion campaigns launched by the Arya Samaj and other Hindu revivalist bodies in the 1920s in Uttar Pradesh, at a time when there was a spate of Hindu- Muslim riots in the region,” Gupta wrote in a research paper.

Activists fear that the decision by the Supreme Court will boost far- right groups as relations between the Muslim and Hindu communities deteriorate.

Hegde, the lawyer, explained that it was an interim order and that the final verdict will be decided based on the results of the investigation.

“It is going to embolden those who are against interfaith marriages,” said the AIPWA’s Krishnan.

“Why has the court ordered a probe into an avowedly consensual marriage where an adult woman married the person of her choice?”

Gupta said that in the “Love Jihad” myth “lecherous behaviour, skill in luring Hindu women through false promises, a high sexual appetite, a life of luxury and religious fanaticism are all portrayed as dominant traits of the male Muslim character”.

The myth, she added, provides “privileged status to moral panic and public morality over constitutional morality ...”

The court order has raised many issues, including an adult woman’s right to choose her partner and her privacy as guaranteed by the Constitution.

“The court should have called the 24-year-old woman to Delhi and heard her side of the story and ascertained that the marriage was the woman’s own choice,” said Krishnan. “It should have ended the matter right then and there.” “This court verdict is a wake-up call.”

Courtesy Aljazeera.com

On Tuesday, the supreme court of India struck down “triple talaq”, the practice where a Muslim man can get instantaneous divorce from his wife just by saying “divorce” three times.

The unilateral nature of “triple talaq” violates the contract of marriage and its well- defined rights and responsibilities and places power in the hands of men, reinforcing a hierarchy within marriage. The woman’s emotional contribution to the marriage is never acknowledged, and neither are her rights to equal share in any property and child custody as the marriage ends.

So the declaration by justices in Delhi that the practice is unconstitutional was a relief and victory for India’s 90 million Muslim women. This milestone intervention means that family laws can now be brought under the scrutiny of fundamental rights. Though the five judges who sit on the constitutional bench were divided – the ruling passed with a majority of three to two – women’s groups celebrate alongside Shayara Bano, the 35-year- old woman who filed the petition in the supreme court after her husband divorced her in 2015 by writing a letter that mentioned “talaq” thrice.

But the fight did not begin with Bano. For the past three decades, Muslim women have knocked on the doors of courts with their individual cases challenging the discriminatory practice within family laws. The courts often adjudicated these isolated cases and passed favourable judgments. However, no judgment before Bano’s tested the practice on the basis of fundamental rights of equality and non- discrimination.

The judges who voted to keep “triple talaq”, Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, upheld the constitutional protection of the freedom of conscience under Indian law. While the practice has been declared unconstitutional in much of the Muslim world, it has continued here in India because communities are allowed to follow their own religious laws in personal matters, including marriage, divorce, inheritance and adoption.

The two judges maintained that the courts cannot adjudicate on Islamic personal laws and failed to distinguish between statutory laws and faith. They sided with those arguing for “reforms within the community”. But three decades in the women’s movement has taught me that the religious organisations (and some NGOs) within the community have in the past denied legal remedies to Muslim women, forcing them to seek arbitration within the religious framework.

The verdict also acknowledges that the practice is not validated by the Qur’an. One of the primary arguments made in court by the umbrella organisation I founded, Bebaak Collective, was that, considering India is a secular and democratic country, all personal laws must be tested against constitutional values, and if there’s a contradiction, principles of equality must prevail. The judgment is the precedent we need to now challenge “nikah halala”, (when a man can remarry his divorced wife only after she is married to another man and divorced by the same), polygamy and other discriminatory practices against women.

Outside and beyond the courts, in spite of vociferous opposition, this case has brought the conversations on women’s rights into mainstream public debate. This is a welcome shift compared with the usually deafening silence on inequality within the institutions of marriage and family.

However, the jingoistic congratulations of the ruling BJP government for its univocal support to the cause of Muslim women feels like an appropriation of the decades-long struggle by grassroots women’s groups who worked with the Muslim community. After all, it was women, not the government, who went to the judicial system to seek redress in the courts.

Still, Muslim women from across the board welcome the verdict as it puts an end to the insecurity of their conjugal lives. The judgment will strengthen our resolve to confront violence and abuse within our families, negotiate for property, inheritance and custody rights in our marriages, cohabit in congenial spaces, and perhaps even question the heteronormative framework of family itself, which is premised on heterosexual partnership as well as on kinship and bloodline.

In our continued struggle for gender justice, beyond the patriarchy of our communities and state institutions, we uphold India’s constitutional values of equality, pluralism and secularism.

• Hasina Khan is the founder of Bebaak Collective, an umbrella organisation of Muslim women’s groups in India