If triple talaq can be challenged, why can’t polygamy?

The 2017 Supreme Court judgement on instant triple divorce will not only have a liberating effect on Muslim women — the threat of triple talaq that hung over their heads has been removed — but it also sends out a strong message of gender equality.
Muslims women celebrate the Supreme Court's decision on instant triple divorce, Mumbai, August 22.(PTI)
Muslims women celebrate the Supreme Court's decision on instant triple divorce, Mumbai, August 22.(PTI)
Updated on Aug 24, 2017 10:18 PM IST
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ByArif Mohammad Khan

I had the good fortune of defending the Supreme Court judgment in Shah Bano case in Parliament in 1985 and to argue on behalf of Muslim women in the Supreme Court challenging the constitutional validity of instant triple divorce in 2017.

The Shah Bano judgement came after changes in the CrPC which included the ex-wife in the definition of wife. This change was necessitated in order to take care of a situation where the husband would desert the wife and when the deserted wife went to court seeking maintenance allowance, he began divorce proceedings. In the case of a Muslim husband only three pronouncements were sufficient to divorce her. Shah Bano was a text book case where she was first deserted by her prosperous lawyer husband 40 years after marriage and three years later when she approached the court, the husband used the instrument of instant divorce and asserted that he was not liable for any payment beyond the Iddat period, that is three months. The court in the light of new law that is section 125 of CrPC, decreed in favour of Shah Bano and ordered the husband to pay a paltry sum of less than Rs 250 per month. The matter went to higher courts and finally the Supreme Court upheld the judgment of the lower court in favour of Shah Bano.

At this stage the Muslim Personal Law Board jumped into the fray and began organising protest meetings saying that this judgment was an interference in matters of religion and if this judgment was not reversed it would obliterate the community identity of Muslims. It was the same separatist argument that was advocated by the Muslim League before 1947. Then it was asserted that Muslims were a separate nation, now it was asserted that the Muslims have a separate identity. The movement used extremely violent language. Outside Parliament in a protest meeting a call was given to break the legs of Muslim MPs who had opposed the Board’s demand and inside Parliament, ZR Ansari, a minister, used contemptuous language for the Supreme Court judges describing them as teli and tamboli (oil pressers and paan sellers) trying to interfere in religious matters.

The Muslim Personal Law Board built up such pressure that the government was forced to take cognisance of it. To its luck, even Congress leaders such as Narasimha Rao and Arjun Singh held the view that the Congress Party cannot perform the role of a social reformer for Muslims and advised the prime minister not to endanger the political constituency of the party by ignoring the demands of the Personal Law Board. Rajiv Gandhi, the young prime minister, could not ignore this advise and agreed to bring a legislation to reverse the judgment. The announcement to this effect created such a massive backlash that within a few days the government was forced to do something to manage the adverse reaction and at this stage Ayodhya came handy and the unlocking of the gate was organised to divert public attention from the Shah Bano verdict.

I resigned the day the Bill was introduced on February 23, 1986. During the discussion, not a single minister of the government defended the bill on merit. They were simply said that there was an apprehension of a breach of peace. It sent out a message that the parliamentarians were not doing it because it was the right thing to do. They were doing it because they were fearful of the Personal Law Board and its threats. A government with 421 MPs was scared and out of that fear they were compelled to do something. This was something that was bound to offend public sensibilities.

I resigned because in August 1985, I had taken almost 60 minutes to defend the Shah Bano judgement in Parliament. Rajiv Gandhi wrote a small note congratulating me for the reaction that my speech had elicited. Six months later, the government decided to bring a legislation where the specific intent of the Bill was to reverse the judgement. I had defended that very judgment in Parliament. At that stage I realised that I have no moral right to continue in the government and to me the maintenance of my integrity was more important than the maintenance of the office that I was holding.

The Supreme Court judgment of 2017 is a victory for Muslim women and their organisations. The women who have fought this case lacked resources or any organised support system and yet they persevered and took the fight to its logical conclusion. I was approached by Shaista Amber, who asked me if I could appear on their behalf in Supreme Court and I took up my black coat and gown after a gap of 21 years.

This is a historic judgment that will pave the way for a new era in this country. The 2017 Supreme Court judgment will not only have a liberating effect on Muslim women — the threat of triple talaq that hung over their heads has been removed — but it also sends out a strong message of gender equality. It is a great source of inspiration even for non-Muslim women also. If these poor Muslim women without any resources can fight their battle successfully, why can’t others?

The Supreme Court has used the word ‘unconstitutional’ to describe triple talaq in a majority judgment. The door is now open and other provisions like polygamy can be challenged on the basis of its being arbitrary and unilateral. In fact my understanding is that like triple talaq, the unrestrained right to polygamy also finds no sanction in the Quran. It was an Arab practice and every Arab practice is not part of Islam. This judgment has opened the door, it is the beginning of a journey not the end and now the women will not stop at anything less than genuine equality of status as guaranteed by the Constitution of India.

In matters of social reform, the path is never smooth. You will hear about many cases where the man will still make three pronouncements. And the woman will refuse to move out saying there is no legal sanction for triple divorce. And if she chooses to go to the police, it will be a fit case for prosecution under harassment and mental torture. If in two or three cases effective action is taken, people will simply forget about triple divorce.

The community has always wanted to move forward. It is the clerics who are the obstacles. In 1986 they succeeded in arousing Muslim passions but with the rise in literacy and awareness levels particularly among women, this time they got no real response. Secondly, the present political dispensation also discouraged them from launching any aggressive protest movement. The manner in which Prime Minister Narendra Modi supported Muslim women and the affidavit and advocacy by the government has certainly helped them fight this historic battle.

This judgment brings to my mind an observation of Pandit Jawaharlal Nehru. Sometime in the mid-1950s, Taya Zinkin, a correspondent from The Guardian, London had interviewed Panditji. She asked him what he considered his greatest achievement in life? Panditji had said: “I succeeded to secure rights for my Hindu sisters which were denied to them for centuries.” Then she asked and what his life’s greatest disappointment was ? Panditji shot back: “I could not achieve the same for my Muslim sisters.”

Many people say that the stand I had taken in 1986 has now been vindicated. I do not look at the judgment in this way. What I had done was dictated by my conscience and in matters of conscience no external vindication is needed. Yes I would again say that the credit for this glorious verdict goes to the brave Muslim women who displayed great courage and fought valiantly to secure justice. This judgment has redoubled the faith of the common men and women in our system, our judiciary and our constitution. It is a happy omen for our secular, democratic Republic.

Arif Mohammad Khan is a former Union minister and was counsel for the All Indian Muslim Women Personal Law Board in the triple talaq case

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