There has been no concern as grave in the human rights crusade as the empowerment of women, and certainly no other failure as persistent as the one to successfully address the same. Her life is teemed with multiple insecurities and her ordeal seems beyond containment when the belief that religion is inviolable is exploited by peddling perverted constructions of religious scriptures, only to suppress her expression and her right to worship.
Touching upon personal laws is no doubt only one of several steps needed for the emancipation of women, albeit an essential one. This is evident from the social and proprietary reforms engendered for Hindu women through the Hindu code bill, which have elevated their negotiation power in matrimonial matters.
But Indian Muslims are still guided by their personal law. Marriage among them is considered not only a civil contract but also a sacrament. The egregious practices of triple talaq, halala and polygamy deify a husband, subjugate his spouse and belie the oneness of their bond. Triple Talaq is of various forms but the most contentious of them is Talaq-Ul-Biddat followed by the Hanafi Sunni sect which enables the husband to irrevocably divorce his wife by pronouncing �Talaq� three times instantly. But right of divorce of the Muslim woman is ensconced under The Dissolution of Muslim Marriage�s Act, 1939 providing for certain grounds upon which she can seek divorce from court. There are also some powers of divorce available to her under the personal law but these are either delegated to her by the husband or effective only when the husband accepts her offer of divorce.
Lately, the invocation of instant talaq power by men has become so rampant that much clamour is being raised against the Constitutional validity of such religious ordains. Instances like divorcing over whatsapp on trivial grounds have come to light which reflect the grave injustice ensuing against these women.
The Apex court, in the case of Shamim Ara vs State of Uttar Pradesh, moderated the rigidity of this practice by holding that such a divorce can only be validated if it is proved that there were reasonable circumstances justifying it and that sincere attempts were made at reconciliation by the spouses which could not achieve fruition. But these safeguards are more often not observed.
Further, in the case of Mohd Ahmed Khan vs Shah Bano Begum,the court also extended woman�s maintenance rights beyond the iddat period till her remarriage. The Parliament made an abortive effort to nullify the judgement by passing The Muslim Women (Protection of Rights on Divorce) Act,1986, but thanks to the purposive interpretation adopted yet again by the Court in Daniel Latifi vs Union of India that the position that was held out in the former case has been restored.
A ray of hope has emerged recently as one such victim, Shayra Bano, has challenged this system of divorce, prompting the Supreme Court to sacrifice its vacations for expeditiously settling the question. The expostulations to the practice arise out of three legal grounds, i.e. it violates the Right to Equality of women, transgresses Article 21 of our Constitution as her personal and financial security is riven with the fear of uncertainty, and undermines her own right to religion.
Although the legal issues have to be settled by the Court as the matter is subjudice, one poser which arises is whether the solution lies in only securing maintenance rights of women and not in abolishing the 1,400 years old custom altogether. It must be realized that though financial security is a concern for a woman who is compelled to be dependent on her husband, but the same is only ancillary. A marriage to her is more than a source of livelihood; it is a union of love and respect. The culture of instant talaq is abominable not because she is fired without a notice of termination but because modern understanding of marriage and gender parity accepts nothing less than equality in all spheres of lives. Moreover, if it is made only a maintenance issue, then would it mean that an otherwise financially independent woman could be deprived of her consortium rights at the vagaries of her husband? If that is so, then we have certainly not comprehended the meaning of �women empowerment�.
Nonetheless, even the present laws allow divorced Muslim women to obtain maintenance till her remarriage. Under the Domestic Violence Act, court can also pass protective orders against the delinquent husband. Therefore, what the Muslim female community demands now is not just protection but progression.
If personal laws are allowed primacy over the constitutional laws, then that would uproot the very structure on which our nation rests. The fundamental right of religion and its essential practices are subject to that of equality and dignity, since the modern Indian playground does allow the religions to play but only so far they can do so fairly.
- Bharti Garg