In her article “Half Measure: Triple talaq-forbidding marriage contract may not do Muslim women much good” on May 28, Flavia Agnes repeated a point she has made earlier about the inefficacy of asking for change within Muslim law around the subject of triple talaq – a practice that allows a Muslim man to divorce his wife simply by uttering the word talaq three times in one instance and whose constitutional validity has been challenged in the Supreme Court. She wrote of the need to focus on the socio-economic rights of Muslim women, saying that this would be more useful in giving Muslim women their rights. She also seemed to allude to the fact that change has to come from within the community.
In another article “Let’s talk about women’s rights” that appeared in the Asian Age on May 23, Agnes was critical of specific voices of Muslim women who, in her words, “claim to be non-conformist, endorse open marriages and live-in relationships”. According to her, they are asking for changes in the law, thus making “Muslim marriages more difficult to dissolve, under the guise of protecting women’s rights”.
I am not among those who have directly challenged triple talaq in court but I am part of the journey of feminism and women’s movements with many of these individuals and groups. It is in this spirit of plurality that I wish to differ with the absolutely rational sounding argument that Agnes seems to be making in the context of triple talaq.
In her arguments, Agnes seems to suggest that the only meaning of justice is getting women litigants their economic rights. But justice is not only about getting a specific relief. People denied equality within society look at the law of the land as a means to gain legitimacy as equal citizens. The law is needed as much to decide what compensation people get when wronged as it is to determine what will be considered wrong.
Equality before the law
The law of the land fulfils two clear purposes. One, it provides mechanisms for redressal to many individuals wronged by other individuals or organisations. Two, it states what this society believes in, what it has zero tolerance for, what it thinks is a crime, what it believes needs to be punished. It is this second aspect of the law that makes many of us make demands that may not sound like they are in favour of many individuals at this moment of time but may in the long run actually help inculcate values that we wish society at large to have.
So, when we protest against triple talaq, we are protesting against the one-sidedness of it, the arbitrariness of it. It is because it states in law and practice that a man can walk out of a relationship like marriage at any time and the same is not allowed to his partner in the marriage contract. It is this that we protest, as much as we protest the restitution of conjugal rights provision in the Hindu Marriage Act and advocate for irretrievable breakdown of marriage as a clause for dissolution of marriage to be made available to all, so long as the rights and duties of the people involved in the marriage are protected, be it a contract or a sacrament.
If triple talaq stays in law and practice for Muslim men, then let us get it for all people. We agree with Agnes that actualisation of rights can happen only when there is socio-economic equality. It will anyway be an extension of the argument that many of us have constantly made, that all marriages must be seen as a contract between an adult man and an adult woman who most often are not equal in power.
A similar argument can be made in the context of the Muslim Women’s Act of 1986. Agnes has maintained that some are wrong in protesting this law because it provides better maintenance to divorced Muslim women than what they could get under the earlier provision. Our problem here too is with respect to denying Muslim women access to a law that applied to all women in the country. The fact remains, however, that at that point the government acceded to the demands of Muslim men to deny rights to Muslim women. This was done in the name of the community, thereby also saying loud and clear that men form community and women do not.
Fighting for change in laws
Many women whose existence is denied by their families, communities and religious authorities are seeking a space within the law for some recognition. The woman who thinks that what her husband does to her is sexual violence but bears it because the law and society both think that there is no rape in marriage, the women who get married to each other in nooks and corners of this country and are looking for laws to recognise their love, the Muslim woman who wants to give triple talaq to her husband without losing her rights within the marriage, and also the one who wants to be able to say that whatever the community says, in this country at least he does not have the right to walk out of a marriage while she does not.
It is this that we fight for within the legislature as well as in the judiciary, while we continue the larger fight for socio-economic change outside, as is evident from many campaigns and struggles over decades. This attempt at intervention within the proceedings at the Supreme Court by some who agree with this point of view is one with full awareness of the limitations and possibilities of the consequences of each of these efforts.
Chayanika Shah is a queer feminist activist and member of the Forum Against Oppression of Women and LABIA – A Queer Feminist LBT Collective.