in the last month or so, ever seeing that information of a Public interest Litigation against immediate triple talaq filed with the aid of 35-yr–antique Shayara Banu from Uttarakhand’s Kashipur district made headlines, there have been a slew of information reviews approximately the validity of the triple talaq and the damagedue to it to ladies and articles by way of Islamic pupils calling for a ban in this exercise and terming it un-Islamic.
Many reports have additionally provided us with picture details about the violence Banu turned intosubjected to on account that her marriage and on the plight of Muslim girls who are routinely served a talaqnama by way of submit that ostensibly depart them high and dry, and not using a recourse by any means underneath prevailing statutes.
An misguided representation
The photo being painted, but, isn’t pretty accurate.
even though the violence suffered by way of most women – bodily, mental (in the form of the consistentrisk of triple talaq, denial of permission to meet family or get admission to to children), sexual (pressuredrepeated abortions, as in Banu’s case), and financial (desertion, non-payment of maintenance) might fallunderneath the purview of the protection of girls from home Violence Act, 2005, no mention of this statute is made inside the numerous scholarly articles or information reports about the violence that Muslim girlsare subjected to.
The statute secures the rights of women, Muslim women covered, to preservation, child custody/get right of entry to, house inside the matrimonial home or alternate shelter and compensation for violence inflicted upon them. The process for having access to these rights is straightforward – it calls for thefiling of an application in a nearby Justice of the Peace’s court, with out necessarily engaging alawyer. The country is remitted to offer girls criminal aid underneath this Act.
For years, women of all communities had been drawing close those courts, that have mechanicallyhanded orders to comfortable the rights of ladies of all religions and marital statuses – single, married or divorced.
This statute can be regarded as a step toward a uniform civil code and have been enacted without anyobjection from the All India Muslim non-public regulation Board (AIMPLB) or every other Islamic sect. Ifdomestic violence is a hassle confronted by way of many women in India, across the non secular divide, then it’s far logical to assume that this will be the primary legal recourse they would are seeking torelaxed their rights. as a result, the failure to hyperlink this provision to the present day debate on triple talaq, by way of Islamic pupils, newshounds and experts advocating enactment of a uniform civil code,seems to me a glaring lacuna.
The rights that nobody talks approximately
i am baffled that a woman who has been subjected to violence and then deserted has been advised toventure the triple talaq despatched to her by publish, however changed into not informed about thesimple recourses to be had to her to at ease her rights. Is Banu no longer a victim of domestic violence? Does her Muslim identity negate the recurring violence she has continued? What could the reaction be had a Hindu woman been similarly violated?
through petitioning the ultimate court, the recourse cautioned to Banu is a lengthier one. in addition, if SC does ban the triple talaq, would Banu and lots of other Muslim girls like her no longer ought to avail themselves in their rights in a neighborhood courtroom?
What also surprises me is the whole silence in those articles and reviews approximately the prisonavenues Muslim ladies mechanically take to uphold their rights. whilst maximum articles approximatelyBanu’s case make a reference to the (in)well-known Shahbano ruling of 1985, the impression one can alsoget is that within the 30 years considering then, Muslim law has been static, and the only avenues for girlsare Darul Qaza (Sharia courts) which can be seen as patriarchal, parochial, archaic and anti-girls. Theentire argument for enforcement of the uniform civil code or the codification of Muslim law rests in thispremise.
it’s miles almost as even though the PIL pending before the Apex court is the most effective recourse to be had to supply women from oppressive private laws. although several articles strain at the want for non-spiritual (civil) judicial avenues to control the rights of Muslim girls, they overlook the truth that Muslimgirls approach such courts robotically to relaxed their rights both below a mundane statute, Thedomestic Violence Act, or the codified portion of the Islamic regulation – the Muslim ladies (safety of Rights on Divorce) Act, 1986.
In instances of domestic abuse or oppression, what girls want is a in a position and conscientiousattorney who’s properly-versed with existing felony measures and can assist them claim their rights,without charging an exorbitant charge – some thing this is sadly lacking in our usa.
Rulings which have paved the manner
A quick precis of three landmark rulings that invalidated triple talaq, upheld the rights of Muslim women tosubmit-divorce economic guide and brought far–accomplishing changes to the Muslim familyregulation in India stresses my factor.
In a landmark ruling in 2002 – inside the Shamim Ara vs nation of UP case– Justice RC Lahoti (who later served as the chief Justice of India) said that a mere plea of talaq in response to the court cases filed bythe girl for maintenance can not be handled as a pronouncement of talaq. so as to be valid, talaq must bestated as in line with the Quaranic injunction. The choose described “pronounce” as “to proclaim, to utterofficially, to claim… to articulate”.
across the equal time that yr, within the Dagdu Pathan vs Rahimbi case, Justice B Marlapalle, presiding over the Aurangabad Bench of the Bombay high court, invalidated triple talaq by bringing up the followingwords from the Quran: “To divorce the wife without cause, only to harm her or to avenge her for resisting the husband’s illegal demands and to divorce her in violation of the manner prescribed by the Shariat is haram (forbidden).” The courtroom declared that a Muslim husband can’t repudiate the wedding at will and has to prove that all levels – conveying the reasons for divorce, appointment of arbitrators and conciliationlawsuits between the parties – had been observed while the spouse disputes the talaq earlier than aable courtroom.
Then, in the Daniel Latifi case, the excellent court docket, whilst upholding the validity of the Muslimwomen (safety of Rights on Divorce) Act, affirmed that a Muslim female’s proper to recurrent upkeepbeneath section a hundred twenty five of the Code of criminal process had been substituted in the Actby using the right to a lump sum provision to be paid to her quickly after the divorce, in the iddat duration(a waiting period at some stage in which a widowed or divorced woman is not allowed to remarry). If the husband fails to make this provision, the woman has the right to approach the Justice of the Peace’scourt.
these decisions (pronounced by way of non-Muslim judges) served as the idea for numerous later rulings that invalidated instantaneous and arbitrary triple talaq. but, because these and comparable instances didnow not acquire media interest akin to Banu’s case, misconceptions about the rights of Muslim womencontinue to exist.
If simplest due media interest was paid to the silent reform taking area every day in our courts, and if bestfolks who provide advocacy and support to violated ladies had invoked them to at ease the rights of Muslim girls, the faulty notion that Muslim ladies haven’t any rights unless the Muslim law is codified oruntil a uniform civil code is enacted, would no longer be triumphant.
the writer is a girls‘s rights lawyer and director of Majlis, a forum for discussions and legal tasks for womenrights.