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Triple Talaq Ruling And Muslim Women Ordinance Are Well-Intentioned, But Flawed Remedies

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On August 22, 2018, the Indian Supreme Court ruled that “triple talaq”, the privilege of a Muslim man to divorce his wife instantly, was unconstitutional. The parliamentary debate that followed resulted in a stalemate; it was not possible to enact a statute codifying the unconstitutionality of talaq. President Ram Nath Kovind signed the Muslim Women (Protection of Rights on Marriage) Ordinance 2018, banning the Muslim practice of triple talaq.

The ruling and ordinance intend to deliver justice to Muslim women, are constitutional and well-intentioned. However, both the ruling and ordinance do not address whether individual Muslim, Hindu and Christian women and men are being treated equally. These actions are incomplete and flawed remedies. Many Muslims will feel singled out for unfair treatment and may resent the change. Article 14 of the Indian Constitution guarantees the fundamental rights to Equality before law and Article 15 is a prohibition of discrimination on the grounds of religion, race, sex or place of birth. Personal Laws are applied in areas covered by marriage, divorce, post-divorce maintenance, and succession and are different for individuals of different religious communities.

Is it possible to fashion a constitutional remedy that is equally applicable to all Indians, regardless of sex, religion, caste, or status of registration of the marriage?

Read about MP Husain Dalwai’s Private Member Bill on Triple Talaq: Modi Govt. Is Trying To Secretly Pass A Dangerous Triple Talaq Bill. Here’s What It Can Do

In the Sarala Mudgal and Others v. Union of India and Others, 1995, case the Supreme Court emphasised that “respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate [in independent India].”  These Regulations codified respective scriptures, holy texts, or customary practices of Hindus, Muslims, and Christians. The Company and subsequent British rule focused on colonisation and exploitation and were governed by the motto “divide and conquer”.

The regulations favoured men and discriminated against women. Personal laws, broadly the civil code, kept Indians divided by religion and prevented cohesion amongst Indians; this suited the British. Personal laws also suited the patriarchal sentiments of Indians. India gained Independence in 1947, and its Constitution came into force in 1950. After that date, Indians are no longer colonial subjects. The Preamble, summarising its wisdom of the Constitution provides for justice, liberty, equality of status, fraternity assuring the dignity of the individual for the people of India.

In the Mohd. Ahmed Khan v. Shan Bano Begum, AIR 1985) the Supreme Court acknowledged the “palpable injustice” being suffered by Indian Muslim women. The Court noted that “Undoubtedly the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed for no reasons at all.”

How could India and its Supreme Court tolerate privileging some individuals and allow them to discard another group of individuals? In re, Amina (AIR 1992 BOMBAY 214), Justice D.R. Dhanuka stated (pg. 218), that it was it is impossible to ignore patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our Courts. He opined that some provisions appear clearly unjust and impose gross inequality and inequity in the matter of inheritance merely on the ground of sex.

Chief Justice Y.V. Chandrachud (Sivaramayya 1984 pg. vi) notes that “Discrimination based on sex is a well-known feature of ancient as well as contemporary India.  Many inequalities based on sex in Hindu law have been removed by the enactments which were passed in 195556.  Nonetheless, some inequalities like the right to birth in favour of a son, paternal grandson and paternal great-grandson persist…” [1]

Christian Laws also Discriminate Against Christian Wome

Article 13, of the Constitution, deals with laws inconsistent with or in derogation of the Fundamental Rights. It voids all laws in force in the territory of India immediately before the commencement of the Constitution, to the extent of the inconsistency.

In the State v. Narsu Appa Mali (1952 Bom.) case, Justices Chagla C.J. and Gajendragadkar considered the Bombay Prevention of Hindu Bigamous Marriages Act 1946 and ruled that the sources of personal laws are religious texts such as the Srutis, Smritis, and Khoran (not the Constitution). They stated that personal laws cannot be said to have been passed or made by a Legislature or other competent authority. They stated that personal Laws were not “law,” or “law in force,” or “custom or usage,” or “not a custom or usage having the force of law.” Rather than take a commensurate logical action and cease the use of such dubious instruments, the Court continued Personal Laws. This judicial action was a blow against the rule of law.

In 1980, the Indian Supreme Court (Krishna Singh v. Mathura Ahir) ruled that it will not recognise the Fundamental Rights of citizens in areas covered by Personal Laws. This judicial action was a blow against Fundamental Rights.

In comparison to the above two rulings, the Supreme Court’s 2018, decision deeming triple talaq as unconstitutional, remedies the injustice in privileging Muslim men to discard Indian Muslim women. However, it is a piecemeal approach and so is the Presidential ordinance.

They leave the edifice of Personal Laws, whether derived from British Regulations or religious texts, untouched. In contrast to Personal Laws, the Indian Constitution demands justice, liberty, equality, and non-discrimination for the individual.

Justice Khalid in the Haneefa case (1972, page 514) noted the “suffering,” “tyranny,” “cruelty” meted out to “unfortunate” Muslim wives by “monstrous” personal laws imposed on such women by the State. He said that his conscience is disturbed by “personal law [which] remains so cruel towards these unfortunate wives.” More recently, in the Joseph Shine vs Union of India, 2018, the Supreme Court declared that a husband did not own his wife and stated that in India, “Equality is the governing parameter.”

The Special Marriage Act, 1954 is an Act of the Parliament of India. It provides a mechanism for every Indian citizen irrespective of the religion, sex, or caste to get married or divorced. For example, men and women who are Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can avail themselves of its equitable provisions. It also provides a legal framework for succession. It does not favour either sex. It complies with all Fundamental Rights.

However, the effect of the Special Marriages Act, 1954, is that it discriminates based on the status of registration or non-registration. People whose marriages are registered enjoy fundamental rights regardless of sex or religion. In comparison, people whose marriages are not registered are denied fundamental rights. It creates a liability on many poor and illiterate masses who are unaware of the discrimination that results from not registering a marriage.

Furthermore, it creates a burden on them as they may not have the resources to register a marriage. Thus, the act’s requirement for registration of the marriage produces two classes of citizens, one privileged with constitutional rights and the other disfavored with constitutional disabilities. Thus currently, all Indians whose marriages are not registered have not been enjoying their Fundamental Rights.

The Supreme Court must perform a constitutional judicial review of the Special Marriages Act and declare its marriage-registration requirement as unconstitutional. All marriages (sacramental, contractual or otherwise), whether registered or not, must be held to be valid and subject to other provisions of the Special Marriages Act. It must declare that the Act’s equitable provisions for both sexes, to be the law of the land and applicable to all Indians — Atheist, Buddhist, Christian, Hindu, Jew, Muslim, Parsi Sikh, etc. In affected areas, such a constitutional judicial action will at once provide the freedoms of equality, non-discrimination, and uniformity of laws for all Indian individuals. Because the Special Marriage Act, 1954 is already an Act of the Parliament of India, no further Legislative action is necessary to enforce its provisions.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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