Last week, as the Supreme Court heard the triple talaq case, a tangled web of faith, individual rights and collective identity tussled for one-upmanship inside the courtroom. Of all the arguments and counter-arguments made, some ironies emerge.

To begin with, how have we reached a situation where we find ourselves on the same side as the current right-wing regime? As Attorney General Mukul Rohatgi, representing the BJP government, advocated for a ban on all forms of talaq as discriminatory against Muslim women, and suggested bringing in a new law, we squirmed on our chairs. Rohatgi’s political vocabulary and arguments for introducing gender-just laws was a blatant appropriation of three decades of struggles of Muslim women.

Muslim women have been through a struggle where male-dominated religious bodies and successive governments have refused to engage with us. When we created a space to make ourselves heard, we have been confronted with the BJP government’s facade of concern. It does not hesitate to speak the language of gender equality inside the courtroom but, at the same time, does not condemn violence against gender, religious and sexual minorities on the streets in these days of vigilante nationalism. Its contradictions are too apparent, yet we resolve to continue raising questions.

Decades-long battle

Senior lawyer Kapil Sibal, arguing for the non-governmental organisation, the All India Muslim Personal Law Board, said that all societies are patriarchal. However, he also said that divine law cannot be tweaked by secular law for it is beyond human intervention. Yet, his clients hurriedly offered a number of changes to this divine law to keep the State away from it.

Sibal would do well to remember that in 2005, his client drafted a so-called model nikahnama – an Islamic marriage contract – with extremely regressive provisions. Among others, it said that a man can declare triple talaq – instantaneous divorce, which can be pronounced only by men – if his wife stepped out of the house without his permission. The Muslim Women’s Rights Network had then publicly torn a copy of this model nikahnama in Mumbai. Women’s groups from across states have also been suggesting various progressive provisions for the nikahnama but Muslim clerics have never agreed to incorporate them.

The arguments presented by the All India Muslim Personal Law Board against secular jurisprudence are nothing short of fear mongering. To stand inside the Supreme Court, the highest court of the land, and say that Muslim women should not access the courts because they are sites of tedious proceedings and long-drawn legal battles and delays is strange. Of course going to court means much delay, but bypassing the site of justice, however delayed, is like throwing the baby with the bath water.

(Photo credit: PTI).

On similar lines, women’s rights lawyer Flavia Agnes has argued in court that secular courts do not ensure economic security for women. Instead, she referred to a study conducted by Hyderabad-based NALSAR University of Law some time last year, which found that Darul Qaza (religious arbitration institutions) and jamaats (a male-dominated body of elders who decide on domestic disputes and other religious issues) are much more adept at securing Muslim women’s rights, and women prefer going there as opposed to courts. However, Agnes forgot to tell us how these courts will bring Muslim women financial security. Does she have any evidence of that?

Constitutional protection

In our work with women in abusive marriages, never have we come across pro-women judgments by Islamic courts. Only if there was a more comprehensive survey that was less selective. For example, if the NALSAR surveyors spoke to Shaheen, the women’s organisation in Hyderabad, they would have learnt that there has only been one Qazi (a cleric who performs Muslim marriage and divorce rites) in the city who took a pro-woman position while absolving a marriage last year. Yet, exceptions cannot claim to be the norm.

Based on their work on the ground, STEPS, a women’s organisation from Tamil Nadu, was compelled to create a women’s-only jamaat. Can we homogenise women’s varied lived experiences? Have we forgotten the meeting between women’s groups and the All India Muslim Personal Law Board in the year 2000? It was an opportunity like no other for the Board to resolve this issue, but it shrugged its shoulders saying that it was not a statutory body.

Since 1986, Muslim women have been in the middle of a tug-of-war between their collective identity and their individual rights. Muslim women are threatened to stay away from secular jurisprudence in the name of majoritarian prejudice or right-wing agendas. Their experiences within Islamic courts have not improved the situation. In fact, it has landed us in this mess we find ourselves in today.

To view the issue only through the lens of what is Quranic or non-Quranic may be a self-defeating exercise. It must be such a difficult task for all those who unthinkingly defend the Quran. For instance, what arguments would they use to defend the extremely regressive practice of forced child marriage right after a girl’s first menstruation, or female genital cutting among the Bohra Muslim community? As the case of the Haji Ali Dargah in Mumbai shows, when tradition and religion slam the doors on our face, it is the Constitution that upheld our dignity.

No matter what the Supreme Court’s triple talaq judgement states, we must be wary of being pushed into ghettos – the ones that the right-wing pushes us into, and the ones we push ourselves into in the name of our Muslim identity.

Hasina Khan is a feminist activist based in Mumbai. Her women’s rights organisation Bebaak Collective is one of the petitioners in Shayara Bano’s triple talaq case. Amrita Nandy, Geeta Thatra and Roshni Rina helped write this article.