Triple talaq

‘There is a misconception about triple talaq’

Print edition : February 02, 2018

Flavia Agnes. Photo: By Special Arrangement

Interview with the women’s rights activist Flavia Agnes.

FLAVIA AGNES, the lawyer and women’s rights activist who has taken up issues concerning Muslim women and has handled hundreds of divorce cases, is astounded at the complete ignorance displayed by lawmakers and self-styled Muslim women’s rights groups in pushing the triple talaq Bill. She said the Bill, if enacted, would do more harm than good. She sees a deeper, in fact sinister, agenda, one that involves politics and further persecution of the Muslim community. Excerpts from an interview she gave to Frontline:

You have been working extensively on the triple talaq issue. Could you comment on the recent developments on the subject?

Criminalisation never works. Section 498a of the Indian Penal Code [cruelty to wife] came in 1983. The criminal law that dealt with rape was also amended that year. In spite of stringent laws, rape, dowry harassment and cruelty to wife have not stopped.

When Nirbhaya [the 2002 Delhi gang rape] happened, they said that [the existing] law was not enough and we needed more stringent punishment. They asked for a minor to be hanged. Even if they did change the law for this case, it cannot be applied to that boy retrospectively. Why go down this road, especially when there is a law [Protection of Women from Domestic Violence Act, 2005, or PWDVA] that needs to be used properly and perhaps strengthened?

In this case, after their initial arrest, the husbands will get bail and the case will go on for years. What will the next demand be—instant justice by public flogging? Then they will say that Muslim law has a provision or some Muslim country has it so we should also have it. Is that a justification? That some other country has it so we should also have it. Even the death penalty has not acted as a deterrent. Why would this?

You have been speaking and writing about the politics behind criminalising triple talaq. Could you give us some insight into this?

“When they have a brother like Narendra Modi, they do not need to be afraid of anyone,” Meenakshi Lekhi of the Bharatiya Janata Party [BJP] assured Muslim women during discussions in the Lok Sabha when the Bill was introduced. To that I say: “Which women?” Modi is willing to be the brother to only those who have a problem with their husbands. Not with the wives of those who have been lynched, not of victims of riots, not with someone who married a Hindu, not with those killed by cow vigilantes. When she is beaten and thrown out of her house, he will not be there for her. But when the husband asks for instant talaq, he will be her brother?

The Prime Minister never made a statement on incidents of lynching or any other incident that involved Muslims, but on triple talaq, during both Uttar Pradesh and Gujarat Assembly elections [in 2017] he said he would ensure that the Bill was passed to help his Muslim sisters. There is a bigger plan behind this.

The current climate is blatantly anti-Muslim, so why is there a sudden interest in protecting Muslim women?

We see a deliberate plan to malign and demonise Muslim men either as jehadis or as love jehadis, beef-eaters or cow-baiters or as being anti-national. They call them brutish and polygamous. This has been an important political plank for the Modi government. It has perpetuated a fear psychosis that Muslims are a threat to the country. Incarcerating Muslim men for pronouncing talaq fits in perfectly with this master plan. It is a clever move wherein the community acts on its own.

You have dealt with hundreds of talaq cases and your organisation works closely with poor Muslim women. What are the ground realities Muslim women face?

The husband will be thrown into jail and the poor woman will become destitute or be deserted. Anyway he will come out and pronounce talaq so that she will be left without anything. It is unlikely that she will get maintenance because if she is poor, the husband is obviously poor. We will see more children leaving school and a lot more poverty in a community that is already marginalised. This is just one more move to target the community.

In rural areas, we have a programme that gives legal rights training from the village level. We have observed that both Hindu and Muslim women’s issues, particularly marital ones, are resolved in the same way. By and large, the community plays a part in solving matters. Very rarely do you come across cases of instant triple talaq. They do understand Section 498A and the Domestic Violence Act and know they can file a complaint. On the other hand, in cities, if the woman wants a divorce, we tell her to go to the darul qaza [Islamic court] and ask for khula [divorce; women can ask for divorce but with the risk of losing their mehr, or dowry given by the husband]. Under the PWDVA, she is entitled to maintenance and custody of her children.

You are up against several activists and lawyers who are pushing the Act. At the outset, instant talaq does appear regressive. Poor Muslim women are among the most marginalised and efforts have to be made to empower them.

The women who are asking for the new law have no idea how the law works. The BJP says whatever it wants. To say that Muslim women want the law is not at all accurate.

Zakia Soman and Noorjehan Safia Niaz of the Bharatiya Muslim Mahila Andolan decided, on the basis of a survey, that triple talaq and polygamy were the most pressing problems faced by poor Muslim women, overriding fundamental problems such as poverty, unemployment and illiteracy. I went through the survey. Out of the 4,710 respondents, 525 women were divorcees. Of them, 120-130 had sought a divorce themselves. These numbers should be analysed after comparing them with the divorce and desertion numbers among Hindu women. Not a single question [in the survey] was related to instant talaq. Yet, the Mahila Andolan felt it was the most “pressing demand” and asked for a new law. The argument was that women are too poor and hence unable to approach the court. Do they not realise that poor Muslim women would not be able to use the daunting criminal legal process?

The Mahila Andolan’s demands gave the government a handle to plunge into this subject and further its agenda. Some of the women behind the Bill have close links with the BJP. This should raise one’s antenna. Ishrat Jahan [one of the five petitioners in the triple talaq case, which led to the tabling of the Bill] recently joined the BJP. Farah Faiz, an intervener in the case, is the president of the Rashtriya Swayamsewak Sangh-affiliated Rashtrawadi Muslim Mahila Sangh. Shayara Bano, whose case triggered the movement, was facilitated by the Uttar Pradesh and Maharashtra governments, both headed by the BJP. Does this not point to something deeper?

If one wishes to genuinely help poor Muslim women, it has to be done through social and economic empowerment.

You maintain that Section 498A of the IPC and the PWDVA, if strengthened and used correctly, can resolve cruelty issues in a marriage. Could you explain this?

Yes, absolutely. Ignorance of the law among our lawmakers and these activists is absurd. Not to mention what the opposition is doing. Why they don’t want to take a harder stand is baffling. When we already have laws to protect women, where is the need for another, that too a flawed one? In August 2017, the Supreme Court struck down instant triple talaq. In 2002, in the Shamin Ara case, the Supreme Court held that instant triple talaq was invalid. When the apex court has outlawed instant talaq, what is the need for enacting a law?

There have been landmark judgments in the past on talaq and there are instances when both the law and courts have ruled in favour of the women. For instance, the lawyer Danial Latifi challenged the constitutionality of the provisions of the Muslim Women’s Act, 1986, for providing maintenance only during the iddat period [the three-month waiting period for divorce]. The Supreme Court ruled that the husband would pay a reasonable and fair amount needed to maintain his ex-wife for the rest of her life.

In 1971, Justice V.R. Krishna Iyer ruled in a triple talaq case in the Kerala High Court that “the husband must satisfy the court about the reasons for divorce”. Later, in 1981, Justice Baharul Islam said in a court in Assam: “The correct law of talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife and by two arbiters.”

What are the flaws in the Bill? What will be the impact if it is passed by the Rajya Sabha?

A big danger is that the Bill does not specify the time period for the case to be concluded. In the meantime what will the poor woman do? How will she look after herself and her children? She cannot get remarried until the process is over. Additionally, it gives power to a third person to file a criminal charge. That means even a neighbour can file a complaint. It pushes women into a legal process which they will not be able to manage. There is a huge misconception about triple talaq. Yes, there are cases of triple talaq given over SMS, letters and telephone calls, but those are not in the number they are made out to be. Marriage is a contractual agreement among Muslims, and talaq follows a long process. Shayara Bano went through years of cruelty and torture before her husband declared talaq. It is far more complex than what people think it is.

Give people correct knowledge. Since Independence, there have been people from the minority community who have had strong voices in States such as Uttar Pradesh and Kerala. The BJP did not deliberately antagonise anyone during A.B. Vajpayee’s regime. Now the danger is the party is mobilising Hindus as Hindu.

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