The year was 1966, April 18 and Meherunissa Dalwai was 35 years old, pregnant with her second child when she marched along with her husband Hamid Dalwai and six other women down to the Mantralaya building in Mumbai (Bombay then) in a symbolic protest against the discriminatory practice of Tripe Talaq. 51 years later Meherunissa Dalwai is 86 years old and rues the fact that this practice is still prevalent in 21st century India. What is worse is that it has morphed into an even more abominable “Instant-Triple-Talaq” that can be delivered via SMS, WhatsApp, and email. Meherunissa will be recreating this symbolic protest on April 18, 2017 urging PM Modi to put an end to this discriminatory practice that has rendered several Muslim women homeless and penniless.
In a blatantly insensitive comment akin to rubbing salt into open wounds AIMPLB (All India Muslim Personal Law Board) general secretary Maulana Wali Rahmani reiterated that “instant Talaq may be wrong but valid” According to him not only was it valid, but conveying it via mobile phone was also valid.
UP CM Yogi Adityanath’s comment equating the silence of the majority with the few who practice Triple Talaq must be therefore viewed in this context – what he has said highlights not just the entrenched position of the AIMPLB but also calls into question the hypocrisy of those who want the courts to decide on the Ram Janmabhoomi issue but will not submit this abominable practice to the scrutiny of the law of the land.
The reality in India is that the situation for Muslim women is getting only grimmer not better. Reports of marital abuse, random Triple Talaq delivered via SMS and WhatsApp, instances of forced Halala (when reconciliation is attempted) and polygamy are beginning to appear more frequently as Muslim women break out of their veils and start questioning the legality of not just this practice but also the authority of a regressive body like the AIMPLB.
Yogi Adityanath’s statement about Triple Talaq is morally and ethically sound and he has thrown open this debate in a way few politicians current or past have made bold to do (with the exception of Arif Mohammed Khan who quit the Rajiv Gandhi government and the Congress in protest against the Shah Bano case).
PM Modi himself has been emboldened by this to come out in the open with his views on the subject, calling for an equitable and just law that protects the rights of the Muslim women as a citizen of India and not be treated as a member of a religious sect. It is heartening to see an elected government actually make the right noises in public and also in the courts unlike the Rajiv Gandhi Government of 1984 which used its mammoth majority to overturn a Supreme Court judgement in the infamous Shah Bano alimony case.
While the moral and ethical arguments are on solid ground what is the legal and constitutional position? Is a ban on Triple Talaq legally tenable? This is particularly important when we see how vested interests from within the Muslim community including politicians like Asaduddin Owaissi quote the law and the constitution to claim immunity.
Article 15 of the constitution is often quoted to buttress the argument – “The State shall not discriminate against any citizen on the grounds of Religion, Race, caste, Sex, or place of birth”. However this article needs to be read along with Article 15(3) which states “Nothing in this article shall prevent the State from making special provision for women and Children” (bold for emphasis).
Article 25 states “Every individual is equally entitled to freedom of conscience” and the right to “profess, practice, and propagate religion of one’s choice” with the caveat however that the article does not restrict the government from making any law in order to “regulate economic, financial, political, or other secular activities” (bold for emphasis)
Most importantly Article-14 of the constitution which guarantees “Right to Equality” states “…equality before the law and equal protection against discrimination within the territory of India…” (bold for emphasis) and prohibits discrimination on the following grounds:
- Place of birth
Article 14 therefore should override both articles 15 and 25. Further, when Article 15 is read along with 15(3) and Article 25 with its caveats; it is clear that the constitution provides the State with the authority to intervene and make the necessary changes to ensure equality and justice to all citizens of the country irrespective of their religion, or sex (as in this case).
Also the AIMPLB is neither a legal body nor does it have any authority under the law. It is merely a private non-governmental body established in 1973 with the sole purpose of “implementing and protecting Islamic sharia law in India” One of its stated objectives is to “adopt suitable strategies for protection and continued application of the Islamic code of Shariat” (bold for emphasis) – Is this the body that will be allowed to wield power and make laws in a democratic country?
The questions every right-meaning citizen of India must ask are these:
- What is the need for a body as regressive as the AIMPLB in a modern, 21st century India?
- Why should one community alone not be subject to the laws of the country and should the laws not be applicable equally to all citizens irrespective of the religion they profess?
- Why should Muslim women alone be denied what other women in India enjoy?
- When Article-14 of the constitution guarantees equality to all why have successive governments shied away from implementing the law?
- When more than 20 Islamic countries around the world have either banned or amended Triple Talaq why is it being supported in a modern, pluralistic, democratic, secular India?
Yogi Adityanath may have put forward a moral and ethical argument for the abolition of Triple Talaq – He is not only right morally and ethically but he is also fully justified in asking for the abolition both under the constitution and the rule of the land. It is time for the government and the Courts to make the right judgement and put the AIMPLB in its place.
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