The battle for gender justice
Meet the women who are fighting legal battles against triple ‘talaaq’, polygamy and ‘halala’
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Like so many others, Shayara Bano was divorced by speed post. “Talaaq, talaaq, talaaq”, no reason given, no questions asked, and 14 years of marriage were over. Aafreen Rehman too received her talaaqnama in the mail. They are the lucky ones. Others have been summarily divorced on SMS, WhatsApp and Skype. One was packed off because her waist was too “thin”. Another was dismissed because she attended a funeral without her husband’s permission. And yet another could do nothing when her husband decided to remarry.
Unlike most, Shayara Bano and Aafreen Rehman decided to fight back. The women are clear. They do not want to return to their marriages. Joined by lawyer and activist Bader Sayeed and a small group of victims in a similar situation, they are knocking at the doors of the Supreme Court asking for a ban on instantaneous “triple talaaq”, polygamy and nikah-halala, a custom in Muslim personal law that decrees if a woman wishes to remarry a former husband, she must first consummate an intervening marriage.
The Muslim women’s fight for gender justice goes back to the drafting of the Constitution when it was decided that various religions would be allowed to keep their own personal laws in matters of marriage, divorce, inheritance and adoption. By the mid-1950s, however, Hindu personal law went through a series of amendments that benefited women in terms of marriage, divorce and inheritance. In the late 1970s, and early 1980s, Shah Bano, a middle-aged divorced woman, and Shehnaaz Sheikh, founder of feminist Muslim organization Awaaz-e-Niswaan, separately approached the Supreme Court, challenging aspects of the Muslim personal law. Despite a landmark judgement in 1985 won by Shah Bano, which pertained to maintenance beyond the period mandated by Muslim personal law, the then government passed a law that reversed the effects of that progressive judgement. Ever since, the issue of equal rights for minority women has been in abeyance.
Earlier this year, the 70,000-member strong Bharatiya Muslim Mahila Andolan conducted a survey asking Muslim women for their opinion on the contentious issues of triple talaaq, polygamy and halala. They say that an overwhelming majority is against these practices. The zeitgeist of equal rights that has defined this decade, include courageous Muslim women moving the court to protest against these practices of the existing Muslim personal law. They say that their fight is one for dignity and equality, rights guaranteed to all women under this nation’s Constitution.
Who are the women challenging the status quo and fighting one of the defining battles for gender rights, particularly of minority women? We profile three of the challengers.
Shayara Bano, 35, Kashipur
The woman in orange salwar-kameez, wrists covered with green glass bangles, a pearl string wrapped demurely around her neck, is soft-spoken and given to answering in monosyllables; a woman brought up to speak when spoken to.
It takes some prodding to get Shayara Bano, 35, to talk about being a potential trailblazer with her petition filed before the Supreme Court in February asking for a ban on triple talaaq, polygamy and nikah- halala—all practices enshrined in Muslim personal law.
Since then, Bano has been joined by at least five other women, from Kerala to Kolkata, all asking the court for a similar ban. Bano’s was the first petition this year and, so, regardless of the outcome, this is a case that will always be known as Shayara Bano versus the Union of India.
Bano believes that triple talaaq, polygamy and nikah-halala strike against her fundamental right to dignity and equality. “I have no interest in getting back with my husband,” she clarifies. “But I don’t want any other woman to go through what was done to me. Nobody should be divorced like this.”
By “this”, Bano is referring to the letter delivered by the Indian postal department that abruptly ended her 14-year-long marriage. She was at her parents’ home, recuperating after a prolonged illness when it arrived, the talaaqnama, on that day of 10 October 2015.
It was a lousy marriage, she says. She had a master’s degree in sociology. Her husband, Rizwan Ahmad, had barely completed high school. But he had an agency for a soft drink manufacturer and the match came recommended by a common relative and so the nikaah took place in 2001. The problems began soon enough—she was taunted by members of her husband’s family for not bringing dowry. Bano was criticized for the way she cooked, looked, cleaned, kept house, she says. Ahmad was violent, physically and emotionally. The birth of her first child, a boy, made things easier for a bit. But after the birth of her daughter, she got pregnant several times and says her husband made her undergo “six or seven” abortions by feeding her some tablets she cannot name.
It was this that resulted in chronic weakness and illness. Finally, Ahmad called up her father and told him he was sending her back home to Kashipur, Uttarakhand, so that she could recover.
Although her husband had often threatened to do so, Bano never thought she would be so summarily divorced, never believed it could happen so easily. So when the letter arrived, she took it to the local maulvi. He confirmed that she was indeed divorced. There was a cheque for Rs15,651, the mehr amount promised to her at the time of marriage. And that was that. She has had no contact with her children in all these months and says her husband has already married someone else.
Bano recognizes that this divorce is legal and binding. Her marriage is over because one partner deemed it to be so, without consulting her, without even the courtesy of an advance warning. “Women are getting divorced by SMS, on Skype, over Whatsapp. Is this a joke?” she asks.
“It doesn’t matter if a girl is educated or not; every Muslim wife lives in fear that she can be divorced at any time or that her husband can take another wife whenever he wants,” says Bano. “This is no way to live a life.”
Iqbal Ahmad, Bano’s father, is a government employee and knew that the petition he encouraged his daughter to file would in fact create a stir. He says he is aware that the marriage prospects of his unmarried younger daughter have been curtailed. In the course of a television debate he was called an “RSS agent” by a fellow Muslim panelist. It’s amongst the politer terms sometimes used to describe him, he laughs.
“My daughter’s marriage is over,” he says. “But unless she challenged triple talaaq in court, unless she filed that petition, how will our society ever change?”
Iqbal Ahmad says he has read the Koran several times and is aware of the hadith and shariah. Nowhere does it say that a man can divorce his wife, by repeating one word three times in a single sitting. “The clergy is making fools of these gullible women. Even my daughter who has read the Koran several times is not exactly aware of the exact position of Islam on divorce,” he says.
“The All India Muslim Personal Law Board and the madrasas are keeping people ignorant,” says the outspoken Ahmad. “I’m not saying ban divorce. The Koran allows divorce. But, I’m saying follow the shariah and don’t make up your own ridiculous rules.”
Like most divorced women, Bano has very few options of supporting herself financially. She has a degree but has never been employed. Her father would like her to take up a job just so she can get out of the house. But Bano looks diffident when he suggests it to her. Fourteen years of being in a marriage when you are constantly told how useless you are can create a crisis in confidence.
Yet, unlike most divorced women in India, she has the support of her parents as well as her brother. It was her brother, Shakil, who got Balaji Srinivasan, a young Supreme Court lawyer based in Delhi, to fight his sister’s case.
“For me, the fundamental rights of an individual are sacrosanct,” says Srinivasan. “When I started the research for this case, I knew it would be a big one, but even I never thought it would become so big.”
Meanwhile, back in Kashipur, Bano can’t say how her petition will proceed. Will it, in the end, be all sound and fury amounting to nothing, or will it become yet another milestone in a long march to gender equity. For now, she adjusts her dupatta, her green bangles clinking musically in the still afternoon, and looks out of the window.
By Namita Bhandare
Bader Sayeed, 70, Chennai
Bader Sayeed’s appointment as the chairperson of the Tamil Nadu Wakf Board in 2002 stirred up a veritable hornets’ nest. Sayeed, the first South-Asian woman to occupy the post—her term ended in 2006—describes the mayhem that ensued when the news of her appointment trickled out. “They protested,” she says, referring to those who claimed that a woman heading the Wakf board was against the shariah. “They said that women can’t go to a mosque,” says the 70-year-old former MLA, who has also held the post of chairperson, Minorities Commission, and additional advocate general of Tamil Nadu.
But dissent has never fazed her. “I always say we have to fight it. You can’t say that ‘you can’t do this’ and ‘you won’t do that’,” she says, “There is so much to be done.”
Which is why she chose to become a lawyer, she says. “I have always believed law to be an instrument of social change,” says Sayeed, who has been a practising lawyer since 1982. Law wasn’t on the cards, however, when she graduated from SIET college in Chennai in 1966. “I was so protected that my parents wouldn’t let me switch on the light—they said I would get a shock,” she says, “I used to be very self-effacing.”
There is no trace of that shy, young girl left in the woman sitting across me with the glint of steely determination in her eyes. The Bader Sayeed of today is a fighter. “There is so much to be done,” she says.
A chandelier in her small office in Alwarpet in Chennai lights up an endless array of bound legal documents spread across the table. The shelves are crammed with law books and journals, and a framed photograph of Sayeed with the chief minister of Tamil Nadu, J. Jayalalithaa, hangs in a corner.
“You know, I went back to school 11 years after sitting at home, after having my babies, so the mind had rotted quite a bit by then,” she laughs. Married at 21, she migrated to Canada, and later the US, with her doctor husband, and worked as a lab technician in a hospital. “I had no background in cytology and histology—I am an economics graduate but I enjoyed it. I’ve had a very truncated career but it has made me a better, more-rounded person,” she adds.
She returned to India in 1972 and lived the life of a stay-at-home mother till 1978. “I decided to go back to school and study law. It was easy, because it was only half-day at the Dr. Ambedkar government law college,” she recalls. Her first job was at the Tamil Nadu Legal Aids Centre, she remembers. It was hard work. “I wondered whether anyone would give a Muslim woman a case,” she says. But they did come in. “I moved a lot of writs for the release of bonded labourers, especially women and children.”
“The rest is just plain luck,” she says. The “rest” that Sayeed is referring to includes her legal battle against triple talaaq, a common practice through which a man can divorce his wife simply by uttering the word talaaq thrice, and even have the local qazi deliver the divorce to a woman. In 1992, she filed a writ petition against triple talaaq, which was eventually dismissed. In 2013, Sayeed approached the Madras high court asking that the right to issue divorces be taken away from qazis, and issued only by courts. Earlier this year, she moved a writ petition in the Supreme Court to be impleaded in the Shayara Bano case. Bano, whose husband Rizwan Ahmad divorced her over speed post, challenged the unholy triad of instantaneous triple talaaq, polygamy and halala in the Supreme Court in February. “When we heard about this, a lot of young women came forward and we all impleaded,” says Sayeed.
The Muslim women’s legal fight for gender justice has been going on for at least three decades. In 1978, 62-year-old Indore resident Shah Bano was divorced by her advocate husband Mohammed Ahmed Khan. Shah Bano took him to court, asking for life-long maintenance like any other Indian woman. In 1983, Shehnaaz Sheikh moved court to challenge Muslim personal law—according to journalist Jyoti Punwani in the Economic And Political Weekly, Sheikh withdrew her petition after the communally vitiated atmosphere following the demolition of Babri Masjid in 1992.
“I collected signatures and sent them to (then prime minister) Rajiv Gandhi,” recalls Sayeed, referring to her support for Shah Bano, who won her case in 1985. It was a landmark judgement, which angered several sections of the Muslim clergy. The following year, the Muslim Women (Protection of Rights on Divorce) Act was enacted, which allowed Muslim women maintenance only for a period of iddat (three months after divorce), after which she was to be supported by her relatives or the Wakf board. “It is not a great piece of legislation,” says Sayeed, “It is a codification that has really set the clock back for women.”
The debates that ensued during this period saw the Supreme Court suggest legislation on a uniform civil code—that conversation continues to this date. Sayeed, however, doesn’t wish to lose focus. “The uniform civil code will be applicable to all religions and not just the Muslims of this country. It is being highlighted to divert attention from the impending decisions of the Supreme Court,” she says adding, “The cry of the hour is that Muslim women today are denied justice.”
According to her, the biggest challenge is the Muslim personal law, which is based on the shariah. “There are as many interpretations of the law as there are maulvis,” she says. “God didn’t say you must marry several times, he said that you may. The rule is monogamy not polygamy,” she says, adding that one needed to look at the context in which laws came into being. Sayeed believes that all divorces should go through a court of law. “It has to have a judicial stamp, otherwise the decision is unilateral. If the court takes over and says that every talaaq must be filed there, only then you hear the other side,” she says.
Much has changed in the years between the Shah Bano and Shayara Bano cases, says Sayeed. “We have always had these problems—it is just that women are speaking up more about it today,” she says. According to her, the women of today are far more ambitious and independent and they have aspirations beyond being a mother and wife. “This is 2016, not 1986 and people have woken up. You may be stuck in a time warp but we have woken up and evolved,” she says.
By Preeti Zachariah
Afreen Rehman, 28, Jaipur
On the afternoon of 1 March, at least 20 people huddled around a long table in Saras Parlour in Jaipur, famous for its paneer pakodas. At another table at some distance, a young woman and a man were sitting face-to-face. The 20-odd people at the long table kept a close watch on the proceedings at this table as conversation between the young woman and the man fluctuated between stifled and animated. What was in progress was an attempt at rajinama—an amicable solution to the marital discord between the couple.
Only that it wasn’t just another marital discord.
On 24 August,2014, Jodhpur’s Afreen Rehman, then 26 years old, and armed with a masters of business administration degree in finance, married Syed Ashar Ali Warsi, 28, a budding young lawyer from Indore with a master’s degree from the prestigious Rajiv Gandhi National University of Law in Patiala. Rehman and Warsi had met on the matrimonial website, Shaadi.com, or rather, her family had stumbled upon Warsi’s profile on the website.
Family background. Check. Boy’s educational qualification. Check. Boy’s employment prospects. Check. Rehman and Warsi were declared good to be pronounced man and wife and a courting period wasn’t deemed necessary. According to Rehman’s cousin and confidante, Naseem Akhtar, it was a “five-star” marriage held at Shivam Resorts and Hotel on the outskirts of Jaipur. “Her brothers had taken a loan of Rs25 lakh for the wedding,” says Akhtar.
Rehman moved to Indore soon after to live with her husband and his family. It was alright for a while. She even found herself a job as a store manager at an interior design house. Yes, there were trivial problems, like the choice of dal to be cooked for dinner, but Rehman did what is expected of millions of other newly-married young girls: adjust.
But things escalated fast. In less than two months, in fact. According to Rehman, her mother-in-law turned vicious. First, the jibes. About not enough dowry, her choice of job, her behaviour, etc. “They wanted me to find a teaching job. I tried, but I have an MBA. Besides, teachers hardly get paid,” Rehman told me at Akhtar’s house in Jaipur last week.
Then, the spiral began. “He (her husband) would hit me for the smallest of things and inform his mother about every little disagreement that would happen between the two of us, who would then say, ‘Pack her bags and send her back to where she has come from’.”
Rehman cried, complained to her brother about the violence and threats, but stayed on. A small function was organized to celebrate the couple’s first wedding anniversary. Not that the thrashings stopped, but Rehman, egged on by her brother, had made peace with her circumstances.
A little over a month after that though, on 27 September 2015, after a round of thrashing, Warsi, now a criminal lawyer at the Indore high court, threw his wife out of his house and put her on an overnight train without a reserved ticket.
Rehman spent a few days at her brother’s house in Jaipur, alternating between crying and making frantic phone calls to Warsi to take her back. Finally, on 2 October 2015, Rehman boarded a bus to Jodhpur, her parents’ home. Her mother was with her. At around 4am the following day, the bus they were on collided with a truck. Rehman woke up in hospital the next day with multiple fractures in her legs, and to the news that her mother had died.
Sometimes, a tragedy is what it takes to mend broken relationships and bring people close again. And it seemed for some time, this one too would serve that purpose. Warsi rushed to the hospital, and, according to people present, even cried.
He left soon, but with the promise that he’d be back. “He said he’d come in a few days, and even took her clothes back,” says Akhtar. “We thought it would be all fine.”
But it wasn’t to be. Days became weeks. Warsi didn’t come back. Phone calls were met with excuses, and more procrastination. “I begged and cried, but he remained non-committal. Then, he blocked me everywhere. Phone, Facebook, Whatsapp, everywhere,” recalls Rehman.
On 27 January, Warsi finally reached out. The message came to Rehman in the form of a speed post. It was a triple talaaq. It looked like a letter, and read like one too. If not for the grave patriarchy at the heart of the practice, Warsi’s triple talaaq declaration would almost make for an amusing read. Like a break-up note written by a petulant teenager: You didn’t make me happy, you cared too much about your maternal home, your behaviour wasn’t up to mark, I don’t want to be with you; can I have the stuff I gave you back?
The meeting at Saras Parlour on 1 March was the final effort at reconciliation. The meeting, according to people present, ended with Warsi allegedly threatening Rehman: “Did you forget all my thrashings?”
On 24 April, the Jaipur police, acting on a complaint of domestic violence by Rehman, arrested Warsi and his mother. It is unlikely Rehman paused even briefly to celebrate. Her elder brother killed himself that very day. Rehman plunged into clinical depression.
It is almost like Rehman was born to fight this fight. Amid all the visits to the physiotherapist and psychiatrist, she did something remarkable. She filed a petition in the Supreme Court against the validity of triple talaaq in April. “It is not to get back with him. It is for all Muslim women who are treated like doormats.”
In this fight, Rehman is pitted not just against Warsi. Nishat Hussain, convenor of the Rajasthan chapter of the Bharatiya Muslim Mahila Andolan, who has stood like a rock behind Rehman, understands this better than most people, having fought for the rights of Muslim women for almost three decades now. “When a woman goes to court seeking justice, she faces a very different kind of violence from society. The kind of scrutiny and questions she is subjected to, it is difficult to even imagine it. Everything from your character to your disposition is questioned every moment. One feels broken,” says Hussain.
Rehman, too, has been made to go through the ignominy of having to explain herself every moment. There have been all sorts of quips. Maybe she deserved it. Perhaps, she didn’t make her husband happy. Probably, it’s her fault only. But Rehman, under the constant counselling of Hussain and Akhtar, is steadfast: “I know that what happened to me was not right. Another woman shouldn’t have to go through this.”
Hussain put the point of the crusade more succinctly: “The mullas will not decide our fate. We deserve better than that.”
By Arunabh Saikia