Cover Story

Taking on patriarchy

Print edition : September 06, 2013

Jaibunisha Reyaz Babu (left) at a women’s Sharia court run by the Bharatiya Muslim Mahila Andolan. Photo: dxs dfsdas dfsdf

Badar Sayeed. She has sought a direction against qazis issuing talaq certificates. Photo: Vino John

Sharifa Khanam. She says the verdicts of jamaats usually go against women. Photo: M. Moorthy

M.H. Jawahirullah, MLA and AIMPLB member, says the triple talaq issue has been blown out of proportion. Photo: L_Balachandar

In Tamil Nadu, there are Muslim women activists fighting on all fronts for gender justice.

THREE Muslim women activists from Tamil Nadu, Bader Sayeed from Chennai, D. Sharifa Khanam from Pudukottai and Jaibunisha Reyaz Babu from Dindigul, are waging an unusual war within their faith to free women from the practice of arbitrary triple talaq (divorce) and the vexatious issue of derisory alimony.

While Bader Sayeed, a practising lawyer, a former MLA and the first woman head of the Wakf Board in Tamil Nadu (she took that post in 2002), has stirred up a hornet’s nest by approaching the Madras High Court with a public interest litigation (PIL) petition seeking a direction to prevent qazis from issuing triple talaq certificates, the others are fighting at the ground level against the practice of patriarchy that has been read into the religion.

The three of them, besides a few others, are also seeking codification of the Muslim Personal Law (Sharia) Application Act, 1937, an application of Sharia, the Islamic law code that governs all aspects of Muslim life, ranging from religious obligations to personal relationships, which they strongly believe will ensure “exact interpretations” of the Sharia on issues of divorce, alimony and polygamy instead of its contemporary reading that wrongs women.

They are optimistic that this will bring about a radical change in the mindset of orthodox Muslims who look at the activities of these women with suspicion today. For the orthodox, “any sort of tinkering with Sharia is anti-Islamic”. “Thus, the Muslim conservative idealises the patriarchy and violates the tenets of equality and justice enshrined in the holy book of Quran,” says P.K. Abdul Rahiman, an assistant professor at the Centre for Islamic Studies of the University of Madras.

AIMPLB stand

The All India Muslim Personal Law Board (AIMPLB), as custodians of Muslim personal law in the country, filed an impleadment petition in the Madras High Court in July requesting to be made a party in the case filed by Badar Sayeed. Speaking to Frontline, Abdur Rahim Quraishi, assistant general secretary of the AIMPLB, emphasised that Muslim personal law should prevail in cases of divorce. He raised several objections to the demands made in the petition. He said, “We are not in favour of the courts interfering in matters of divorce which are decided by personal laws. Section 2 of the Shariat Application Act, 1937, very clearly mentions that in matters of marriage, khula [a form of divorce in Islamic law where the woman can initiate divorce proceedings], mubarat [another form of divorce], etc., the Shariat shall provide the guiding principles for decisions.”

On being asked about the issue of women’s rights being violated by personal laws, Quraishi said, “Within personal law, Islam provides x enough safeguards as well as rights to women. Women are provided with the right to divorce through the provision of khula. But Islam in principle has been opposed to bringing out issues of marital discord in public through forums like the court. The personal laws provide a mechanism of resolution of the dispute within the family.”

Speaking about the issue of qazis issuing triple talaq certificates, Quraishi said, “The tradition of qazis as custodians of personal law existed even in British courts. The tradition of qazis interpreting law exists in Bihar, West Bengal, Odisha and Madhya Pradesh and a lot of other States. One could question whether the qazis were following the rules of Shariat and the principles of natural justice, but we are not in favour of doing away with the powers that have traditionally been vested with them.”

On being asked about the abuse of the process of triple talaq and the issuing of arbitrary certificates of divorce, Quraishi said, “Has Badar Sayeed interviewed the husbands and looked at why they resorted to this practice?”

Demand for codification

Several judgments and observations, including ones by the Allahabad and Bombay High Courts, on issues relating to triple talaq have enhanced the demand for the codification of Muslim personal law. The codification of the Hindu Marriage Act has further strengthened it.

Theologians and scholars have emphasised that talaq should not be pronounced at a single sitting. The correct method, they point out, is that it should be pronounced thrice in three separate pronouncements in three consecutive periods (and not in one go) when the woman concerned is in the state of purity (periods between the cycles of menstruation), which the Calcutta High Court quoted in the Shakila Parveen case in 2000. The waiting periods (iddah) provide an opportunity for the couple to reconcile. The third talaq is irrevocable.

Bader Sayeed believes that the codification of Muslim personal law will end unilateral talaq pronouncements. In view of the fears of conservative sections that codification might offend the community, she calls for the formation of a panel of elders, clerics and legal luminaries to discuss and decide the issue. The codification, she insists, will enable the judiciary to rely on “something tangible and legally tenable” exegesis while dealing with personal laws and issues concerning minorities.

She denies that she tacitly favours a uniform civil code. “Codification does not mean an acceptance of the civil code. In fact I never endorse that. The holy Quran is dynamic and gender neutral. Why should I when the Quran has clearly laid down a wide gamut of procedures on talaq, alimony, etc?” she asks.

What she wants is a clear and unambiguous interpretation of the Sharia. “While we have to function well within its injunctions, the same should be safeguarded from getting abused. Muslim women need justice. In the absence of codification, convenient interpretations have wronged many women,” she says.

Jaibunisha Reyaz Babu supports her views. She says that the Bharatiya Muslim Mahila Andolan (BMMA), a rights-based organisation for Muslim women of which she is the Tamil Nadu State convener, has been demanding a “holy Quran-compliant codified Muslim personal law to safeguard the Quranic and constitutional rights of Muslim women in the country”.

The misinterpretations of the Sharia, she points out, have always pushed Muslim women, especially those in Tamil Nadu, to the margins of justice. Men use e-mails and short messaging services (SMS) to pronounce talaq. “In the absence of a codified law, these sensitive matters of interpersonal relationships are being dealt with in a catastrophically haphazard manner, particularly by qazis, maulvis and jamaats,” she says.

Sharifa Khanam, who runs a non-governmental organisation, STEPS, for the welfare of Muslim women, points out that no religion has given as many rights to women as Islam does. “But today we have become victims not once but twice, first as a woman and then as a Muslim woman,” she says. Muslim women, she adds, have to accept the verdicts of jamaats and religious heads. “Their verdicts in general go against us,” she says.

Laws such as the Dissolution of Muslim Marriages Act, 1939, the Muslim Women (Protection of Rights on Dix vorce) Act, 1986, and the Protection of Women from Domestic Violence Act, 2005, have provided “some sort of justice” to aggrieved Muslim women who prefer to seek legal remedies for divorces and maintenance, Bader Sayeed says. “But the interpretations of these laws in sync with the Sharia need clarity as far as the issues of Muslim women are concerned,” she says.

Jaibunisha says that the BMMA has opened legal aid centres, which double as “Women Sharia Courts” (auraton ki shariah adalat) in Dindigul, Mumbai, Pune and Ahmedabad. Besides invoking the provisions of the sharia, these centres will take recourse to the secular laws of the country. “We will use the existing legal system to enable wronged Muslim women to access legal aid,” she says.

Women jamaats

But Sharifa follows a different school of thought. She has formed women jamaats in Tamil Nadu to take care of the issues that confront Muslim women. “In the present system of jamaat, women are not permitted to represent their cases in person. A male, either a brother or the father of the victim, can represent her. The result is that women are forced to accept their verdicts ex-parte,” she points out.

Sharifa is aware of the fact that establishing women jamaats will not eradicate discriminatory practices. “We take up the tough job of empowering women and making them understand their rights, which Islam ensures. Our women jamaats instil confidence. We have established jamaats in 10 districts, each having 50 women members. They meet once in a month to sort out issues mainly relating to triple talaq and alimony. We summon men for enquiry and adjudicate,” she says. An apex body has been formed at the State level to solve knotty issues that cannot be sorted out at the local level.

M.H. Jawahirullah, Member of the Tamil Nadu Legislative Assembly from Ramanathapuram and a member of the AIMPLB, rubbishes the accusations that the Sharia is being misinterpreted. “It is simple and straightforward and, hence, provides no room for any misinterpretation. You need not be a scholar to understand and interpret its provisions,” he claims and adds that the AIMPLB is “working on various vital issues, including the codification of Muslim laws”, and that this will be placed before Parliament shortly.

He states that “triple talaq” pronounced at one go may be un-Islamic but the issue has been blown out of proportion. “Isolated cases cannot become the rule,” he points out. “The practice of triple talaq at one go is not permitted in Islam. There are no two views about it,” he stresses. And talaqs through mobile phones, e-mails and SMS are forbidden. “In fact, jamaats have not been accepting such fleeting pronouncements,” he says. The qazis, he claims, have been explicitly asked not to endorse any divorce that go against the tenets of Islam.

The majority of jamaats, he says, function in accordance with the Sharia. Affected women can appear in person and represent their cases. “We in the Tamil Nadu Muslim Munnetra Kazhagam [TMMK], a socio-political body, have also been running women’s centres since 1996 for mediation purposes. A few jamaats refer to us cases that they cannot handle,” he claims.

Bader Sayeed, however, points out that she is not against the functioning of jamaats. Many do a good job of mediating between disputing parties. “But what I suggest is that the decision of a jamaat on matters of divorce and alimony should get legal sanction. After a mediation effort, they [jamaats] should direct the husband and the wife to approach either a family court or a civil court to get their preferences legally validated,” she says.

She says that her action should not be construed as one against the Sharia. “No Muslim will for that matter speak or act against it.” It, according to her, ensures full rights to women. But its interpretations differ, leading to the miscarriage of justice in most cases involving Muslim women.

On her PIL petition that demands an end to the practice of issuing triple talaq certificates by qazis, she says she would like the qazis to remain and function strictly within the confines of the Qazis Act, 1880. “This British Act has not empowered them to issue ‘talaq’ certificates and hence they lack legal sanctity. The holy Quran has explicitly laid down the norms [for talaq]. But they should be interpreted correctly and in sync with the changing times and laws of the country,” she urges.

The TMMK leader differs. He claims that referring issues relating to talaq and alimony to courts of law will delay the process further. “It will burden the already overloaded courts. A woman who seeks a divorce to start life afresh will be the sufferer. I know many Hindu couples fighting for divorce in various courts of law are waiting for more than seven years to get divorced,” he says.

Bader Sayeed’s petition, while leading to some intense debates within and outside the Muslim community, has also drawn angry protests from many quarters. A dharna was staged outside her house in Chennai. The walls in her neighbourhood were splashed with posters slandering her. The police arrested nearly 100 Muslim men, most of them young.

But the women activists who have been fighting for gender justice and equality within their religion are not to be browbeaten. “Which portion in Quran permits Muslim men [meaning the protesters] to display the photos of one of their women in the posters and handbills so that all could see and read?” Bader Sayeed asks. “They have in a haste completely misread my intentions.”

Sharifa Khanam is a much bruised woman. She has been totally isolated from her society for taking up the crusade against gender disparity. “The local jamaat despises me. My character has been vilified, the usual last resort of a male-dominated society to defeat a woman. I am virtually excommunicated,” she says. A separate mosque for women that she attempted to build remains half-finished.

Jaibunisha is the only Muslim activist who is not alone in her fight. She has her husband’s support. “He understands me and backs me in all my endeavours, which could be termed by these rabid elements as anti-religion. A few oppose our move to set up women’s Sharia courts,” she says.