A Talaq-e-Hasan petition filed by a Ghaziabad-based woman, seeking to make the divorce pronounced by the husband at an interval of at least a month extra-judicial, was in the limelight recently when Justice S.K. Kaul observed that the practice of Talaq-e-Hasan or divorce pronounced to the wife once a month for three months is “not so improper”. The Bench of the Supreme Court of India, that included Justice M.M. Sundresh, also brought to the counsel’s notice the possibility of exploring divorce through mubarat or mutual consent. The judges referred to the option of khula, or a Muslim woman’s right to divorce as well.
The Bench said, “We have also put to the learned senior counsel whether in view of the allegation of respondent of irretrievable breakdown of marriage, would the petitioner be willing for a settlement by process of divorce through mutual consent on amounts being paid over and above the mehr fixed. In fact, we have also brought to their notice the dissolution of marriage is also possible without the intervention of the court through mubarat.”
The Court’s observation continues the trend of the judiciary taking into cognisance the rights available to a Muslim couple to dissolve an unhappy marital union. It also marks the increasing propensity of Muslim women to stand up for their rights in marriage or otherwise, a clear departure from times when women left the husband’s house in silence, battered, bruised and fearing social opprobrium. Indeed, more and more Muslim women are now approaching various courts, including Darul Qaza or shariah courts, for redress of marital grievances.
While the widely-acclaimed invalidation of instant triple talaq by a five-judge Bench of the Court, in 2017, is well documented, there was a Kerala High Court judgment of 2021 which upheld the validity of khula. The court called khula, “the form of divorce conferred upon the wife similar to talaq conferred upon the husband”. Incidentally, there are more cases of khula in Darul Qazas or shariah courts than those of instant triple talaq, post the 2017 verdict, according to a rough estimate. In other words, greater awareness of their rights is seeing more and more Muslim women walking out of an abusive marriage, even opting for khula.
There is change
While much has been happening in the judicial fora when it comes to Muslim women’s rights, a silent churning is also going on within the Muslim community in India. Often said to be a community under siege in recent times, age-old mores are now being questioned, and in many cases, rejected. Take for instance, the rumblings around the issue of the hijab. While many women stood up to be counted, arguing forcefully their right to wear what their faith ordains, and quoted verses from Surah Ahzaab of the Koran, many also pointed out the rights granted under the Constitution of India to the minorities to protect their religion, language and culture. It was the new-found confidence of Muslim women to quote from the religious book and also speak up for the rights of a citizen enshrined in the Constitution. Allowing the monopoly of sundry maulanas to interpret the scriptures for them has been fading away.
Seeking rights
Some girls went a step further. They pointed out that it is not just women who have to observe purdah in Islam. The men too have their own limited purdah — a mode of compulsory dressing from the navel to the knees that they are not allowed to violate. Again, they quoted verses 30-31 of Surah Nur of the Koran to buttress their contention. The women are thinking for themselves, interpreting things for themselves, and speaking for themselves. The men have been left either gaping or applauding. Interestingly, at a much lower profile, Muslim women have also been asserting their right to enter mosques to pray. In the past, mosques were considered a men-only zone. Now, women want their sacred space. It started with a petition in the Haji Ali Dargah case in 2016, where women won the right to enter the dargah’s sanctum sanctorum. This kind of a silent assertion of their rights is unprecedented.
At a time when the community is often said to face existential questions, there is a prolonged internal churning within the community, with Muslim women speaking up unlike before. For instance, during the height of the Babri Masjid protests in the late 1980s and early 1990s, it was almost invariably the Muslim men who took out rallies and spoke in public. In the Shah Bano case too, where the women actually stood to gain, there was very little affirmative response from Muslim women.
Recent years have seen change to the extent that in December 2019 when the Citizenship (Amendment) Act (CAA) was passed, it was not the traditional Muslim leadership that hit the streets but the women of the community. Even as pro-CAA noises emanated from Jama Masjid’s Imam Bukhari and the chief of the Ajmer Dargah, Muslim women took the Government, the media and the men by surprise too by assuming leadership of a long-drawn out struggle against the CAA. The message is clear: Indian Muslim women have found their voice. Be it the issue of divorce or the right to pray in a mosque or don the hijab to college, they have a mind of their own and are ready to express it.
Some obstacles
Of course, not everything is hunky-dory. Even as women assert their right to end a marriage through khula, some clerics still insist on the man’s consent, thereby defeating the very purpose of khula. On the same lines, even as cases against nikah halala are pending before the Supreme Court for over three years, some maulanas still tend to misuse the provision for halala. Whereas the Koran allows two divorces, considering them revocable, and the third one is considered final, some clerics tend to circumvent it through a distortion of the provision of halala. Many maulanas still consider a divorce pronounced in haste as final, and tell the victim to marry another man, consummate the marriage, and obtain divorce in order to return to her first husband after iddah or waiting period. Muslim women are taking on such practices too in the Supreme Court. The quiet churning within the Muslim community could well herald the winds of change.
ziya.salam@thehindu.co.in
