In 1985, when the Supreme Court’s judgement in the Shah Bano case granted divorced Muslim women the right to alimony, the All India Muslim Personal Law Board, a non-governmental organisation that professes to represent Indian Muslims in all matters of their faith, shouted “Islam is under threat”.
In response, Muslim women rallied to fight for their rights, especially in matters of marriage and divorce, and several women’s groups emerged from the community over the next three decades. Awaz-e-Niswaan, Sahiyar, Muslim Mahila Manch, Pehchan, Muhim, Parvaaz Sangathan, and, more recently, Bebaak Collective, came up at different junctures and articulated a radical politics, at one with secular and feminist causes.
So, when, in 2016, Shayara Bano petitioned the Supreme Court to challenge the constitutionality of the practices of triple talaq, nikah halala and polygamy, these groups joined in the cause. It was a demonstration of the support system created by the women’s movement over the past three decades, something that was not available to Shah Bano.
A reminder that our struggle was far from over came when the Muslim Personal Law Board challenged Shayara Bano’s petition. They have also launched a signature campaign to canvass support. They contend that the rights of Muslim women must be claimed “within the community” and accuse women’s groups of being handmaidens of majoritarian politics.
The argument is disingenuous. While the threat of majoritarian politics is indeed real – witness the ruling establishment’s incessant rhetoric on triple talaq at the exclusion of all other issues facing women in this country – the relationship between gender justice and minority rights is too complex to be reduced to “for or against the community” dichotomy.
Bebaak Collective, Aawaz-e-Niswaan, Muhim, Pehchan and other such groups working with the community across states raise women’s issues without regard to their religious affiliation, whether it is violence inflicted on them during communal riots or discrimination in everyday life while accessing their basic rights to education, livelihood, shelter and healthcare.
Today, however, even progressive forces want us to lie low lest our cause, especially the abolition of triple talaq, halala and polygamy, is appropriated by the Hindutva forces in power. “Ab yeh mahol nahin hai, jab right-wing sarkar satta mein hai,” we are advised. We are seen as rallying with the BJP government to secure the rights of Muslim women.
This trivialises our three-decade-long struggle for equality and justice and generates fierce opposition to even rudimentary reforms. It also provides an excuse for the ruling dispensation to beat the women’s movement with the old whip of the Uniform Civil Code.
The code is unjustly presented as a response to Muslim women’s demand for gender equality although for this government it is just a dog whistle for communal polarisation. We not only oppose appropriation of the cause of Muslim women but also seek the accountability of the state.
Let me state our position in no uncertain terms: when we demand that triple talaq be declared unconstitutional, we do not seek criminalisation of individual Muslim men who exercise the prerogative of unilateral decision-making in the process of ending a matrimonial relationship, or delegitimisation of any marriage. As petitioners supporting Shayara Bano’s appeal, we propose that the apex court frame guidelines (as was done with Vishaka Guidelines to prevent sexual harassment) to ensure, essentially, that a divorce is not unilaterally decided by the man. Also, mechanisms must be developed to enforce such guidelines so that every affected woman does not have to run to the higher judiciary in every case. A support system for such women is also called for.
Systems of injustice
A community’s relationship with the state poses several challenges for the assertion of gender justice. For example, Khap Panchayat and Sharia Court are community institutions that are strengthened by state patronage. They establish systems of oppression – ban on inter-caste, inter-faith marriages; atrocities against Dalits, including sexual violence against Dalit women; fatwas to control women’s mobility and sexuality – yet they routinely enjoy state impunity.
The Muslim women’s movement has challenged both the oppression of the Indian state and the conservative forces within the community. Often, the state has refused to engage with them on the pretext that their matters are “internal to the community”, thereby strengthening the very forces in the community that are responsible for their situation.
To these people, the self-styled arbiters of the community’s interests, the issue of women’s rights is always marginal, as we have found from years of interacting with them. They are concerned more about controlling what we wear, what we read and who we live with. Indeed, even some Muslim women’s rights activists have told us that livelihood concerns – roti, kapda, makan – should take precedence over all others. In effect, they invisiblise concerns of mobility, sexuality rights, multiple family visions and diverse living practices of Muslim women.
The women’s movement is one of solidarity, and, indeed, various women’s groups are working together on many causes. Sadly, though, there is a division on the question of religion, which has come to be the definitive marker of the Muslim community.
Can we not accommodate multiple identities within the community, even those that do not practise religion in normative ways? Can the question of women’s rights not be imagined outside religion?
As petitioners supporting Shayara Bano’s appeal, we do not believe that abolishing triple talaq will resolve all issues faced by Muslim women. But we must claim this opportunity to raise the concerns of matrimonial and inheritance rights, as well as the right to property. If the court does declare triple talaq unconstitutional, then it falls to the state to ensure equal citizenship of Muslim women beyond the realm of Personal Law. It is self-evident that in a country as vast and diverse as India, neither Muslim women’s identity nor their living reality is homogenous. It will, thus, be futile to rest all hopes of their emancipation on a legal remedy.
Hasina Khan is a feminist activist based in Mumbai. Her women’s rights organisation Bebaak Collective is one of the petitioners in Shayara Bano’s triple talaq case. Geeta Thatra and Roshni Rina helped write this article.
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