In her article, "This Muslim organisation’s campaign for a ban on triple talaq is commendable but blinkered", published in Scroll.in on June 20, Flavia Agnes starts off by praising the Bharatiya Muslim Mahila Andolan’s “commendable campaign” as a mere prelude to running down the organisation’s enviable track record and attributing mean motives to it.
By accusing the Bharatiya Muslim Mahila Andolan of a blinkered approach, the women’s rights lawyer exposes her own myopia. To capture the big picture of a dynamic movement involving over one lakh members from across 15 states (numbers never before heard of in the context of any progressive Muslim organisation), you need a telephoto or a wide-angle, not a close-up lens. However, to arrive at her damning verdict Agnes chooses to zero in on a single case study of a triple talaq victim among many put out by the Bharatiya Muslim Mahila Andolan.
Faulty argument
Her angst against the Andolan is better understood if her June 20 article is read along with her earlier piece, published in Scroll.in in May, "The debate on triple talaq and Muslim women’s rights is missing out on some crucial facts". Taken together, Agnes’s basic premise is this: Both a secular statute – the Domestic Violence Act, 2005, and “a codified portion of the Islamic law” – the Muslim Women (Protection of Rights on Divorce) Act, 1986 – are already in place. Nothing more is really needed.
Agnes’ argument essentially is that Muslim women victims of triple talaq and other indignities have successfully been using these enactments to get justice from the courts. Where is the need then for a Shayara Bano to go crying to the Supreme Court, or for the Bharatiya Muslim Mahila Andolan to be screaming itself hoarse, demanding abolition of triple talaq (instant divorce) and a judicial declaration that it was unconstitutional?
All that is needed, according to Agnes, “is a competent and conscientious lawyer who is well-versed with existing legal measures and can help [Muslim women] claim their rights, without charging an exorbitant fee – something that is sadly lacking in our country.”
What’s this but an admission that her own solution is itself a problem: there simply aren’t enough socially-committed lawyers who will charge modest fees to fight for justice.
Let’s assume that, as advocated by Agnes, the Bharatiya Muslim Mahila Andolan starts directing every woman who approaches them to Majlis, the Mumbai-based women’s rights organisation that Agnes co-founded and currently heads.
Should we also assume that Majlis has enough lawyers to take up each and every case from Mumbai that is brought to its notice? And what happens to thousands of female victims across the country where there is no Majlis?
What silent reform?
And that’s not all. There are larger issues involved. In her May 25 article, Agnes claimed there is a “silent reform taking place every day in our courts”. The problem with courtroom reform is this: It is so silent that few people have heard of it even as they keep hearing the ulema’s ongoing sermon that though theologically repugnant, once the dreaded words “talaq, talaq, talaq” are uttered – whether orally, or via SMS, WhatsApp, email or fax – a marriage is over.
It is so silent that Muslim men continue to dump their wives without qualms, happy with the ulema’s fatwa which tells them that the blatantly inhuman, unjust, anti-women practice is “Allah’s Law”.
The silent reform in courtrooms is simply not enough. The crying need of the hour is for a visible, high-decibel campaign to confront the ulema-perpetuated prevailing belief that though bad, it’s a done thing in Islam to damn your wife when you wish, at your pleasure, or whim.
The silent reform does little to shake-up the patriarchal social system wherein the All India Muslim Personal Law Board, lawyers and the “thousands of counselling centres run by NGOs”, which Agnes refers to, peacefully co-exist. No one challenges anyone, no one gets hurt or upset; all can continue doing their own thing.
It is this convenient arrangement that Shayara Bano’s petition in the Supreme Court, and the Bharatiya Muslim Mahila Andolan’s campaign have disturbed and that’s why there is such discomfort all around.
Invalid is not illegal
In cases that have come before them so far, courts have held that triple talaq is invalid as it short-circuits the elaborate Quranic injunctions. What Muslim women are seeking today is a verdict that declares instant divorce as unconstitutional, hence illegal.
On Facebook, Majlis – which Agnes is a director of – claims that “Instant talaq was banned by the Supreme Court in 2002”. Curiously, in her two articles published in Scroll.in, Agnes doesn’t make this claim.
Senior lawyers this writer spoke to say that a verdict declaring a practice as invalid is not the same as it being banned, declared bad in law or unconstitutional.
Agnes praises the “codified portion of the Islamic law” – Muslim Women (Protection of Rights on Divorce) Act, 1986 – but scoffs at the Andolan’s efforts towards codification of every aspect of Muslim family law.
However, imagine the societal implications of an enactment which outlaws instant divorce and stipulates that a Muslim male who does so will be imprisoned for two years plus pay a hefty fine?
A case of ignorance?
Agnes’ sharpest criticism of the Bharatiya Muslim Mahila Andolan is reserved for their running a so-called women’s shariah court. I have reservations about shariah courts within a secular polity but I also ask myself this: In daring to pitch their tent in what is an exclusive Muslim male domain, in choosing to clothe their pre-judicial counselling, reconciliation efforts in a shariah garb, could it be that the Andolan’s women’s courts are not about Muslim women tinkering with a secular polity but about confronting the male monopoly over the interpretation of Islam? Could it be that some Muslim women prefer a pre-judicial arbitration mechanism such as the one the Andolan offers to an expensive, time-consuming litigation process.
Agnes’ “point of discomfort” with the Bharatiya Muslim Mahila Andolan’s campaign against triple talaq also rests on her allegation that the organisation has a single-point agenda.
Having witnessed the Andolan’s multi-pronged efforts in a number of states – including activities of concern to the Muslim community as a whole – I am aghast at this claim especially given the locational proximity of the two organisations and the fact that they have worked together in the past.
Interestingly, in the last few weeks several Muslim bodies – Jamaat-e-Islami, Jamiat-ul-ulema-e-Hind, All-India Muslim Majlis-e-Mushawarat, many from the All India Muslim Personal Law Board – have been talking of launching a nationwide campaign against triple talaq. Not to demand its ban, but to “educate Muslims”.
I doubt these campaigns will achieve much.
Nevertheless, who may claim credit for having jolted these custodians of Indian Islam and Muslims from their unbroken slumber?
For the urgently-needed reform within the Indian Muslim community, the “silent reform” within courtrooms is simply not enough. Both the petition in the Supreme Court and a nationally visible campaign is essential to awaken the community. We should be grateful to all those who are engaged in it.
