By Abhishek Jha for Youth Ki Awaaz:
Right from the time she was in college, Safia Akhtar had been part of rights’ struggles and had even submitted recommendations to the All India Muslim Personal Law Board when they came to Bhopal on what should be included in a modern nikaahnaama. This was “several years ago,” she tells YKA.
“One of my subjects was Arabic. I knew what is written in the Quran. So I was hurt to see that what according to the Quran is un-Islamic is prevalent in our society,” Safia said speaking to YKA over the phone from Bhopal.
Today Safia is part of the Bharatiya Muslim Mahila Andolan (BMMA), which describes itself as “an autonomous, secular, rights-based mass organization led by Muslim women which fights for the citizenship rights of the Muslims in India”. She is also training under the BMMA’s women qazi training institute Darul Uloom Niswaan.
The Muslim Personal Law (Shariat) Application Act, 1937, provides that in all matters of Personal Law- like marriage, divorce, intestate succession, etc- Muslims will be governed by the Shariat. The Dissolution of Marriages Act, 1939, however, codified the grounds on which “a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage”.
In a now popular judgment, in 1985 the Supreme Court ruled in favour of Shah Bano, who was demanding maintenance from her husband after divorce beyond the iddat period (the period of waiting before a divorced Muslim woman or a Muslim widow can remarry). The Court adjudicated that Section 125 of the CrPC (Criminal Procedure Code) – which provides for maintenance, among others, of divorced women- was not in conflict with Muslim Personal Law and that it would apply to marriages solemnised under Muslim Personal Law.
The All India Muslim Personal Law Board (AIMPLB), an NGO which works for the protection of Muslim Personal Law and the implementation of the Shariat Application Act and is said to play an influential role in the Muslim community, had argued against providing maintenance beyond iddat during the trial.
In 1986, the then Congress government passed another legislation -The Muslim Women (Protection of Rights on Divorce) Act – which allows the parties concerned to decide whether they want to be governed by the relevant sections of the CrPC or they want to keep the period of maintenance limited to the period of iddat (around 90 days). Despite this apparent dilution of the Shah Bano judgment, the courts are said to rule in favour of Muslim women asking for maintenance beyond the period of iddat by taking a liberal view of the ’86 Act.
The Supreme Court’s remarks in the Shah Bano judgment in favour of a Uniform Civil Code has now become a rallying point for the Hindu right. However, the Muslims seem to demand gender-justice within the framework of the Quran.
Last year the BMMA had conducted a survey of 4,710 Muslim women across 10 states and different castes and found that 92.1 percent women want a total ban on oral/unilateral (which also includes talaq given by sms, phone, letter, or e-mail, according to the survey) divorce (talaq-e-bidat).
Things look set to change as a writ petition filed by Shayara Bano (to which another petition by Afreen Rehman has been incorporated) currently being heard in the Supreme Court has also asked for a ban on the practices of talaq-e-bidat, nikah halala, and polygamy. Scholars, including former Chairman of the National Commission for Minorities Prof. Tahir Mehmood, have argued that the practices are un-Islamic as well as in contravention of the Constitution.
The BMMA had also drafted a Muslim Family Act last year, which codifies a lot of what has been left hitherto to the interpretation of qazis (judges who arbitrate disputes related to Muslim personal law), petitioned the Bombay High Court to overturn a ban on women entering the inner sanctum of the Haji Ali Mosque in Mumbai, and also supported Hindu women’s right to enter the sanctum of Shani Shingnapur temple in Maharashtra.
Opinions are flying thick and fast- in light of the petition in the SC- as to what it is that Muslim women want, whether the Muslim personal laws need reform, and whether the solution of discrimination against women is necessarily a Uniform Civil Code as envisioned in the directive principles of the Constitution.
We put some of these questions to Zakia Soman, one of the co-founders of BMMA. The interview has been edited for brevity and clarity.
Abhishek Jha (AJ): Why is the Muslim Family Act important when there are already provisions made under sections of the CrPC and in law which have helped the courts decide matters in favour of the personal liberty and freedom of Muslim women?
Zakia Soman (ZS): Indian Muslim women have been legally discriminated. The 1937 law is inadequate and it does not address issues such as age of marriage, divorce, polygamy, custody of children, property rights, etc. As a result we see instances such as triple talaq and halala in our society. The 1939 law gives a Muslim woman a right to seek divorce but again she must go to court. But the man is free to utter the talaq word thrice and divorce happens! No courts necessary for him!
It is not as though since the 1986 Act is there, Muslim women after getting divorced, especially if they are from the socio-economically weaker section, automatically get maintenance. Even to get that maintenance provided by this law, she has to go to court, she has to hire a lawyer, and she has to fight a legal battle. Now how many Muslim women are able to do that- that question remains.
Some lawyer has been spreading this myth about great existing legal mechanisms without understanding the reality – poverty, socio-economic and educational deprivation of Muslim women. It is not possible for most women to keep running to courts whereas the husband can get away scot-free by just saying talaq orally and unilaterally. It is as though a Muslim woman has to keep going to lawyers at every step. All these are aspects which are very real issues in the life of a Muslim woman and on which there are very clear Quranic injunctions giving her full and fair rights. We are for implementation of the rights granted by the Quran.
There are some very reductionist arguments going on but (we) want an overall comprehensive reform in Muslim personal law. It is about Muslim women becoming equal citizens and equal Muslims. It is about correcting the patriarchal misinterpretations that a man has superiority over woman in marriage and family. This reform and education about gender-just Quranic injunctions is important.
Around this triple-talaq debate, there’s a huge churning happening in the Muslim community. For the first time so many progressive voices are coming out from the Muslim community and saying that gender justice in Islam is possible. Muslim women are speaking up in large numbers. They are demanding justice and equality. Gender justice has been prevented by patriarchal mindsets of (All India) Muslim Personal Law Board and people like that. 50,000 women and men have signed our petition (for abolition of oral/unilateral talaq).
AJ: So you are saying that the fight is larger than these legal aspects, that dismantling patriarchal institutions like the AIMPLB would perhaps be the end goal?
ZS: This impression has been falsely created that ‘We (AIMPLB) are some statutory body or some judicial body or some constitutional body’. No, they are just another NGO.
And even as NGOs go in our country, a lot of them are working for something positive. This is one NGO which has been working to preserve the unjust, unfair patriarchal order and yet it has got so much prominence till now. But, happily, it is becoming a thing of the past. They are being exposed thoroughly within the Muslim community and within the civil society. In our study, in a sample of 4,710 women, 95 percent have not heard of the AIMPLB.
They have no validity as per the Quran, because in the religion of Islam there is no place for intermediaries. Every Muslim is directly answerable to Allah for his or her deeds.
They are nobody and they should be disbanded and that is the Islamic and Quranic argument. But otherwise too, even if we look at the Constitution, we look at humanistic principles. They are against all humanity, against justice basically.
AJ: You are also training women qazis with the Darul-Uloom-Niswaan. That would also be an important aspect then, I think.
ZS: See, every Muslim is fully capable of reading the Quran for herself, reading translations, reading commentaries, reading all the exegeses and understanding them for herself. Actually it is not rocket science, the way they have made it out to be – the Muslim Personal Law board. They are again being very Brahminic. They have hegemonised the Quranic understanding. In truth they have added a patriarchal twist that emanates from their own mindsets.
There is a global movement for gender justice in Islam. There are so many Islamic scholars worldwide, across different universities, across different countries who are reading the Quran, who are interpreting the Quran in a gender-just framework, who are writing elaborate commentaries on how the principle of gender justice is fundamental to the Quran and the religion of Islam. We are part of this movement called Musawah from which we draw lot of inspiration. We draw from their material, their books, their writings, their articles, and we have created our own modules in India, based on which we train the women qazis.
AJ: So basically you are saying that if the process of arbitration becomes more democratic and more women become Qazis, such hegemony can be put to end.
ZS: Women should acquire knowledge, especially Quranic knowledge. We have attempted to put together all the relevant material though Darul Uloom Niswan. Now, you know, since we have started this work, we are regularly contacted by male qazis. They say ‘We are with you. We’ll give you more evidence that triple talaq is not Quranic. We’ll give you more evidence that Halala is not Quranic’. In so many small places in Maharashtra, in Delhi, in Gujarat, everywhere there are men like that. But when you look at the overall position in the media and other places then the AIMPLB becomes haawi (dominant).
We are a secular body of Muslim women but, you know, there are bodies of Muslim women and Muslims in general with a religious identity. (Even) they are saying that they want to have a kind of relationship with us whereby we can bring in these aspects about gender justice in Islam.
In the coming decades or so, that voice will get stronger and stronger, there will be a wider kind of alliance of all these religious bodies who will say ‘Yes, we’re religious but we stand for gender justice in Islam’. So this batch of 30 women qazis, they are still in training. Hopefully by 2017, some of them will undertake very active practice.
AJ: Your argument is also different from the people who say that religions are inherently discriminatory towards women, that they should abandon religious practice altogether.
ZS: See, a person can declare her atheism and sit in her ivory tower or she can actually choose to work on the ground. She can actually get into what are the problems that a woman- be it a Muslim woman, be it a Hindu woman, be it any other woman- is facing on the ground, how much deprivation she is undergoing, and how this deprivation is justified in the name of religion by patriarchal elements. Because an average Muslim woman- because she is a believer- and she wants justice in the Quranic framework…and the Constitution gives her the right to justice within the Quranic framework, no? The Constitution gives the citizens right to their religion. Who is anyone to snatch it away? It depends on what you mean by secularism. For us in BMMA secularism means there can be no state religion, the state cannot discriminate or favour anyone based on religion. It also means a peaceful and justice-based co-existence between different religious communities. It also means respect for religious diversity and pluralism.
We need to understand that a lot of patriarchy is being practised in the name of religion. So far why has triple talaq been happening in our country? Because the Muslim woman and the Muslim man- to be very fair- has been falsely told that if you are a Muslim man triple talaq is your right. A Muslim woman has been told that if he (her husband) gives you triple talaq you must accept it because that is what is your religion as a Muslim. But when we share the various Quranic verses and sayings of the Prophet against triple talaq, she stands up. She stands up against this trickery and fights. It suits the patriarchs if we stay away from religion. That’s why they are attacking us, na? As long as we were working on communal riots, implementing the Sachar Committee recommendations, they were not attacking us.
I cannot be a good feminist, I cannot contribute to the cause of feminism until the day I read the Quran for myself, I interpret it for myself and tell my fellow Muslim women that triple talaq Qurani nahi hai (triple talaq is not Quranic).
Given that there is a demand from within the Muslim community for ending these kind of patriarchal practices, it might appear strange that a change on ground has not yet happened.
Soman attributes this to the status of Muslims within India as detailed in the Sachar Committee Report. She says that we should “keep in mind” that Muslims are a minority “that has been reeling under poverty ever since independence”. She also says that a change would require an organised effort, which seems to have started only a decade or so ago.
While a Uniform Civil Code was envisioned for gender-just family laws in a pre-dominantly patriarchal society, Soman says that the UCC is “too politicized” today and “is not about gender justice”. “Just like every community has had reform based on their own texts, the Muslim women have a right to such reform based on their own texts,” she concludes.
Banner image credit: Reuters/STRDEL/Stringer