Mar 07 2016 : The Times of India (Chennai)
Fight against triple talaq is a battle for gender justice
Bader Sayeed
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The recent triple `talaq' (divorce) by a sitting Aligarh judge of his wife has turned the spotlight on the plight of voiceless Muslim women. Consent of Muslim women is obtained at the time of wedding but subsequently , should the need arise for granting divorce or maintenance, the woman is completely bypassed. These days the triple `talaq' is performed by Muslim men ever so frivolously over email, chat and text messages.Unfortunately, the kazis are more than eager to validate the triple talaq. The kazis often play a calamitous role in the ever increasing marginalisation of Muslim women. According to the Kazi's Act of 1880, they have no judicial powers to validate a talaq.Sometimes the local `jamaaths' join the kazi in the validation of a divorce primarily based on the husband's word and a handsome sum of money .
Arguments to justify the continuance of polygamy among Muslims find no relevance today. Among non-Muslims bigamy is a criminal offence and punishable. Above all, Muslim women require gender justice.
Numerous women have approached us at Roshni (a Chennai-based NGO) to ask for legal help in understanding and fighting the archaic laws. In Tamil Nadu, particularly, the number of cases and the position of women may be slightly better than in north India. Here women are more educated, financially stable and aware of their rights.They are vocal against the archaic laws and more active in calling for a change in society than their counterparts elsewhere.
There does not exist in the country a codified law and marriage act for Muslims.The Dissolution of the Muslim marriage act of 1939 and the Muslim Women (Protection of Rights on Divorce) Act of 1986 are not very effective. Furthermore, the woman lives in constant fear of her husband as the man often mistreats and some also proceed with a second marriage. In these situations the man shows no moral or legal responsibility of fair treatment in the first marriage.The practice of oral `talaq' and polygamy is sheer hypocrisy and the expedience is aimed at sustaining patriarchy .
The legal status of Muslim women in India is violative of Article 14 of the Constitution giving each citizen the fundamental right of equality before law. Several Muslim men exploit the present legal process and are successful in preventing Muslim women from approaching the courts of law. Article 44 which enjoins the state to promulgate a Uniform Civil Code is misused by most political parties. It is the Damocles sword hanging over the head of Muslim women as despite the promise of their liberation, the code works against the community as a whole rendering all personal laws invalid. The Muslim women of civil society have breached the barrier by not asking anymore for codification of the personal law, instead only want gender justice. They want a court decree for matters relating to marriage and child custody but not at the cost of other laws, thus ensuring that the diversity and multiplicity of legal traditions are maintained.
Further, Article 46 of the Constitution refers to the role of the state in protecting the weaker sections from social injustice and all forms of exploitation. All this goes to show that it is high time that the legalities around Muslim marriages and the process of marriage, divorce, custody of children, maintenance and inheritance of property are dealt with by a court of law on the basis of equality and gender justice.The Supreme Court can also step in to ensure gender-just laws.
The need of the hour is a set of guidelines and statutes like what emerged through the context of Vishaka vs State of Rajasthan (1997). Muslim men must understand that an equal and strong partner in marriage implies a strong family, thereby contributing to a healthy society . No longer can and should Muslim women bear the ignominy of being treated as voiceless and marginalised people in a modern nationstate.
(The author is an advocate at Madras high court) Email your feedback with name and adress to southpole.toi@timesgroup.com
Arguments to justify the continuance of polygamy among Muslims find no relevance today. Among non-Muslims bigamy is a criminal offence and punishable. Above all, Muslim women require gender justice.
Numerous women have approached us at Roshni (a Chennai-based NGO) to ask for legal help in understanding and fighting the archaic laws. In Tamil Nadu, particularly, the number of cases and the position of women may be slightly better than in north India. Here women are more educated, financially stable and aware of their rights.They are vocal against the archaic laws and more active in calling for a change in society than their counterparts elsewhere.
There does not exist in the country a codified law and marriage act for Muslims.The Dissolution of the Muslim marriage act of 1939 and the Muslim Women (Protection of Rights on Divorce) Act of 1986 are not very effective. Furthermore, the woman lives in constant fear of her husband as the man often mistreats and some also proceed with a second marriage. In these situations the man shows no moral or legal responsibility of fair treatment in the first marriage.The practice of oral `talaq' and polygamy is sheer hypocrisy and the expedience is aimed at sustaining patriarchy .
The legal status of Muslim women in India is violative of Article 14 of the Constitution giving each citizen the fundamental right of equality before law. Several Muslim men exploit the present legal process and are successful in preventing Muslim women from approaching the courts of law. Article 44 which enjoins the state to promulgate a Uniform Civil Code is misused by most political parties. It is the Damocles sword hanging over the head of Muslim women as despite the promise of their liberation, the code works against the community as a whole rendering all personal laws invalid. The Muslim women of civil society have breached the barrier by not asking anymore for codification of the personal law, instead only want gender justice. They want a court decree for matters relating to marriage and child custody but not at the cost of other laws, thus ensuring that the diversity and multiplicity of legal traditions are maintained.
Further, Article 46 of the Constitution refers to the role of the state in protecting the weaker sections from social injustice and all forms of exploitation. All this goes to show that it is high time that the legalities around Muslim marriages and the process of marriage, divorce, custody of children, maintenance and inheritance of property are dealt with by a court of law on the basis of equality and gender justice.The Supreme Court can also step in to ensure gender-just laws.
The need of the hour is a set of guidelines and statutes like what emerged through the context of Vishaka vs State of Rajasthan (1997). Muslim men must understand that an equal and strong partner in marriage implies a strong family, thereby contributing to a healthy society . No longer can and should Muslim women bear the ignominy of being treated as voiceless and marginalised people in a modern nationstate.
(The author is an advocate at Madras high court) Email your feedback with name and adress to southpole.toi@timesgroup.com
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