Recently the Muslim community has been the subject of extreme scrutiny regarding a number of issues. The issues that never cease to generate endless debate are Muslim Personal Law and the marital issues of the community, namely triple talaq, nikah halala, polygyny, dargah entry for Muslim women, etc. Over the past three years however this has intensified to an unprecedented degree. We have seen how these contentious topics have continuously dominated the airwaves of primetime TV newsrooms, the op-ed columns, themes of politicians’ speeches, trending hashtags on social media, rallies, signature campaigns- the whole nine yards. And the Muslim woman suddenly found herself at the eye of the storm – her status and role in society, her worth as an individual, her place in society, her potential and capacity- all being politicised.
One of the outcomes of this saga was the judgement passed by the Supreme Court of India in August 2017, which banned oral instant triple talaq. The judgement brought to the fore many related issues, including the status of divorced Muslim women in India.
AS PER CONSTITUTIONAL LAW
This first became a national issue back in 1985 in the famous Shah Bano case, when the Supreme Court delivered a judgement favouring maintenance given to an aggrieved divorced Muslim woman. In 1986, the then Congress ruled Parliament of India passed a landmark legislation – The Muslim Women (Protection of Rights on Divorce) Act 1986. This Act states that in the scenario where a divorced Muslim woman is unable to maintain herself after the iddah period, she is entitled to receive payment of maintenance from her relatives or, in the case of there being no relatives, from the State Waqf Board.
Initially it was severely criticised on the grounds that it was discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had access to under secular law. However, in later cases, Danial Latifi v. Union of India and Shabana Bano v. Imran Khan, the SC held that the divorced Muslim woman is entitled to get maintenance from her former husband even after the period of iddah ends as per secular law i.e. Section 125 of the CrPC.
AS PER ISLAMIC LAW
Allah says in the Holy Qur’an, “And for divorced women, maintenance (should be provided) on reasonable (scale). This is a duty on Al Muttaqoon (the pious)” [al-Baqarah 2:241]
This maintenance is obligatory in the case of a woman who is divorced before consummation. But if the divorce came after consummation, then maintenance is not obligatory according to the majority of fuqaha’ (Islamic jurisprudents), rather it is mustahabb (recommended but not compulsory). “Divorced women” is general in meaning, and the entitlement is confirmed by the word “duty” [haqqan]. This is further confirmed by the words “on the pious”. There are multiple opinions on this including that of Shaykhal-Islam Ibn Taymiyah who opined that it is obligatory for all divorced women.
THE MEDIA PERCEPTION
The Muslim community as a whole was once again subjected to the tried-and-tested method of caricaturing and dehumanising as images of silent, subdued burqa-clad Muslim women became associated with the topics of triple talaq everywhere, whether it was in articles of prominent media outlets or news channels. On the one hand was the weak, frightened Muslim woman and on the other was the oppressive, cruel Muslim man. Such was the portrayal of Muslims, heightened by cases where some ignorant Muslim men who did not know anything about Muslim Personal Law had abused and deserted their wives, and unfortunately ignored by the Muslim community. Left with no choice, they took their grievances to the media, who left no stone unturned in becoming executive and judiciary all at once.
GROUND REALITY
A day before the SC began to hear the legal challenge to instant irrevocable triple talaq, the Centre for Research and Debates in Development Policy (CRDDP), a Delhi-based institute reported the results of its survey showing that the said form of divorce among Muslims was less than even one in 100. Dr. Abu Saleh Shariff, who led the survey and was a Member Secretary of the Sachar Committee, said: “The most important thing is the security of women who have gone through talaq, not only triple talaq, but what happens after the divorce to them. We believe that there is a due process followed by the community and also, women find it easy to get remarried. The court must take note of this process.”
STATISTICS
Data from the Marital Status by ‘Marital Status by Religious Community and Sex – 2011’ C3 Table of the Census shows that in fact the condition of Indian Muslim women seems to be far better than the Indian women belonging to other religions. The percentage of widowed women is least among Muslims compared to Hindus, Christians and other religious minorities. The percentage of separated and abandoned women is also least among Muslims compared to others. But the same census data also shows that the number of divorced women is higher among Muslims compared to other religious minorities and it is least among Hindus. However, this stems from the fact that in Hindus, the concept of divorce is said to be non-existent whereas due to Muslim Personal Law, divorce is relatively easier among Muslims.
THE BIG QUESTION
But the big question here is what happens to these Muslim women after the divorce? As per Muslim Personal Law, both husband and wife are required to follow a 3-month waiting period known as iddah in which the wife must not leave the house. This serves two purposes, it ensures whether or not the woman is pregnant and therefore whether child support has to be given or not and it gives time to the wife to find a place to live should the divorce be finalised at the end of the iddah. It also provides time for reconciliation on the part of both parties. Divorced Muslim women in India also have recourse to justice under the Muslim Women Act (discussed above), Sec 125 of CrPC, Protection of Women from Domestic Violence Act, 2005, besides Indian Penal Code, and Muslim Personal Law and Darul Qazas (family courts).
However, it is not so simple for the women belonging to the lower socio-economic strata who are not well-educated, lack moral support from family members due to prevailing conservative attitudes and are unaware of existing laws. The onus is on us as a community, to ensure that the divorced women amongst us get justice and are not left to fend for themselves. We have already seen the repercussions of neglecting our internal problems. It is time we reignited the spirit of collective adherence to Islamic teachings.