Will the Muslim women in India find protection in the courts?

Published: May 22, 2016

Reiterating India's commitment to gender equality, Secretary in India's Ministry of Women and Child Development Vinay Sheel Oberoi said. Photo: The Economic Times

One may accuse Trupti Desai’s symbolic entry to the Haji Ali Dargah, Mumbai, and her earlier attempt to enter the Shani Shingnapur temple, as a well thought out publicity stunt highlighting her political intentions.

However, one has to grant her and her organisation, Bhumata Ranrangini Brigade, due credit for their gumption to take on religious clerics and other religious organisations. Her determination resulted in the decadent old custom that prevented women from entering places of worship, into the public domain.

It is indeed a sad commentary that even after 69 years of India’s independence; Indian women have to fight for their rights. Women have to constantly fight for gender equality, injustice and subjugation, even when the Indian Constitution protects them from any form of discrimination based on sex, religion or caste. Unfortunately, nothing seems to have changed on the ground.

In many places of worship in India, women are barred from entering the sanctum sanctorum of the temples. Recently, over a 400 strong women’s brigade tried to forcibly enter the Shani Shingnapur temple in the Indian State of Maharashtra in a symbolic gesture to end the gender disparity prevalent at religious places.

The Bombay High Court, while upholding women’s rights as guaranteed in the constitution, have directed the state government not to deny a woman from entering the sanctum of the temple. Similarly, the apex court of India was dealing with another famous temple in the south. Here, women that may menstruate (between the ages of 10 and 50) are barred from entering the temple out of fear that their entry will not only pollute the temple, but also offend the deity.  It is only a matter of time when the court will order the temple authorities to open their gates to these women.

It is gratifying to see that women are now coming forward to fight against various societal concerns that continue to discriminate against them. For instance, while Hindu women are fighting for gender equality, Muslim women are not far behind either. They have faced discriminatory practices for centuries, but have now started raising their voice against the anachronistic practice of divorce laws. These laws give unbridled right to a man to divorce his wife on flimsy grounds merely by invoking the word talaq three times.

The matter has reached such a ridiculous proportion that the Muslim men are increasingly taking recourse to social platforms such as Facebook, Twitter, WhatsApp and the email to divorce their spouses.

In a move to fight against this injustice, a Muslim woman has approached India’s apex court challenging the concept of triple talaq, as it violates their fundamental rights guaranteed by the Indian constitution. The court, while admitting her petition, has issued a notice to the Indian government questioning the legality of the right to divorce at will without following the due process of law. The court observed that such a practice is not only discriminatory against women, but is also not legally tenable.

The All India Muslim Personal Law Board (AIMPLW), which represents the interests of Sunni Muslims, has questioned the locus standi of the apex court to decide on matters pertaining to Islamic Law. According to the board, the provisions enshrined in the Holy Quran cannot be decided by any court of law.

The AIMPLB’s stance is in sharp contrast to the steps taken by various Muslim countries in modifying the personal law which makes it extremely difficult to divorce on senseless grounds. It must be pointed out that several Muslim countries have criticised the concept of triple talaq, as it goes against gender equality and also negates any opportunity for reconciliation between spouses.

As many as 21 other counties, including Pakistan and Bangladesh, have abolished triple talaq either explicitly or implicitly. Other Islamic countries like Turkey, Tunisia, Syria, Egypt, Morocco, Iran, Iraq, Malaysia and Indonesia have either reformed the law completely or involve legally stringent preventive measures in this area. Tunisia brought about reform by de-recognition of triple talaq within the circumference and perimeter of Islamic law.

Sri Lanka went one step further by enacting Sri Lanka’s Marriage and Divorce (Muslim) Act, 1951 as amended up to 2006. This act does not recognise instant divorce because the law requires that the husband first gives notice of his intention to a qazi (an Islamic judge). The qazi then attempts to reconcile differences between the couple within 30 days. If the attempt fails, only then can the husband give talaq to his wife and that too in the presence of the qazi and two witnesses.

Pakistan introduced a Muslim Family Law Ordinance 1961, making it mandatory for the husband to give a notice to the chairman of the union council regarding his intentions of divorce. Moreover, there is a cooling period of 90 days before giving effect to a divorce.

In India, due to the sensitivity of the subject, as it has the potential to fuel religious backlash, it would be prudent for the government, and the courts, to take the Muslim Personal Law Board into confidence, before contemplating changes.

Furthermore, the government and the board should also consider inviting religious scholars from Pakistan, Tunisia and other countries where the laws have made it increasingly difficult for men to divorce without following due process. Invoking triple talaq in one session is counted as one, giving ample opportunity for both the parties for a possible reconciliation should also be considered.

It is high time that the AIMPLB recognises women empowerment and the changing social order and takes steps to protect their interests by removing regressive practices that clash with modern liberal values.

It is suggested that the family courts, consisting of both male and female judges, should be constituted to safeguard the interests of women. With regards to barring Hindu women from entering the temples, the religious heads in India should raise their voice against this decadent practice, and should open the doors of all temples to everyone, irrespective of their gender.

The time has now come to remove the dichotomy between liberal values and regressive traditions, and take effective steps that not only protect women’s rights but gives them the same rights as men.

K S Venkatachalam

K S Venkatachalam

The author is an independent journalist and political commentator. He tweets as @Venkat48 (twitter.com/venkat48)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • hp kumar

    They can take care of their own.No need to bang your head too much.Recommend

  • Nomad1412

    As an Indian Christian, I say unequivocally that Uniform Civil Code is needed urgently to protect the rights of women in India.Recommend

  • cbing

    Its weird that the so called “authors” of such articles generalize everything, when such incidents are isolated. I am from TN, and there is not a single temple which restricts women from entering. I am not a supporter of gender discrimination in any form or place, but you seem to forgot that women can enter all other temple in MH, except the one mentioned, and painted as they are restricted in every temple. And a new word is spreading in India(aptly so) to you guys who seek attention “presstitutes”. And Indian courts allow only civil cases to be handled by religious means, and only when BOTH PARTIES agree. So, if a Muslim woman doesn’t accept “triple talaq”, she can seek to the court, which you(not surprisingly) failed to mention.Recommend

  • vinsin

    Such a change requires constitutional change. If Muslim women wanted women rights that why they have not voted for BJP enmass?Recommend

  • Waheed Abdul

    For muslims there can only be Sharia. Triple talaq is 100% part of Sharia and needs to followed by all muslim countries.Recommend

  • neil

    First of all woman are allowed in temple in india. Be Laxmi, Saraswati , ram, krishna etc. The only place they aren’t allowed is were the deity in temple is a celibate/monk/ bramachari..female are barred from entry there.. Coz they have left worldly desires. No temptation.
    Same way a female monk/bhramakumari /celibate ..a man is not allowed to enter in such temples..how many of you fought for mans right to enter such temple in india? Isnt it hypocrisy then?
    Nobody allows man to enter in nun’s home. Same way if it’s man’s celibate shrine..woman shud respect their bhramacharya vrat and not enter. They can go to temple wear no one has taken such oath.Recommend

  • rationalist

    “So, if a Muslim woman doesn’t accept “triple talaq”, she can seek to the court, which you(not surprisingly) failed to mention.”

    Well, she could, but at the risk of being declared a blasphemer against Allah’s laws and put to death.Recommend

  • Vishnu Sharma

    Remember” Shah Bano”, case?Recommend

  • Someone

    Only way out is for women to convert to another religionRecommend

  • SuperNeo™

    utter non sense !!!! that must have made you hide your identity.
    person like you can always bring shame to religion.

    Modi should implement Uniform civil code in INDIA, so no religious guru can exploit human life . Recommend

  • wb

    You’re tacitly accepting that Islam is misogynistic! Recommend

  • Dinkan, the true god

    it shows backward stone age arab desert rules are holy for these ,muslims!Recommend

  • Jayman

    It is high time religion is relegated to the realms of fairy tales where it rightfully belong. It is at best a therapeutic tool for people in distress. Giving it so much importance in this day and age reflects a weakness in the social fabric.Recommend

  • Myrna Minkoff

    India is not a Muslim country, FYI.Recommend

  • ask

    Is the resolve of the presiding/entombed entity in the sanctum sanctorum so weak, celibacy so fragile, spirituality so puerile, that the deity/holy personage can not rise above even the gender of the devotee? What spiritual support can one expect from such a weak character! Fact is, devotee has a vested interest in enhancing the mystique of the deity by creating tales. And it is the devotee, and not deity, who is uncertain of maintaining own spiritual focus in the presence of real or imaginary temptation. He/she then concocts commands of deity to hide his/her own weakness.Recommend

  • ask

    You say Modi should implement uniform civil code (UCC) in India. Where is it? Have you ever seen a Draft UCC?Recommend

  • Banana

    As to your question, whether the resolve of the deity is fragile, it is clear that you are just projecting your own idea of an all powerful Abrahamic God on the idea of Hindu deities. Hindu deities and Hindu God are two separate entities. Hindu deities are part of the Universe whereas the Universe is a manifestation of the God in Hinduism. So naturally we don’t have a creator God but a causatory principle that we call Brahman. The deities however are part of this illusory Universe which means they are as much fragile as everything else in the Universe is, but to differing extents.Recommend

  • SuperNeo™

    Draft is ready for long time, some need to show strength to get it pass in Parliament.Recommend

  • ask

    Either you are misinformed or you are misinforming. If Draft UCC was ready by now Modi would have introduced it in Lok Sabha. And BJP would have gone gung-ho with it to Media, screaming if Congress had caused obstruction.

    Fact is Modi can NEVER introduce UCC because the Hindus will be up in arms against him. For example: It is cardinal sin in North India for a Hindu maternal uncle to marry his niece. It is perfectly legitimate practice among South Indian Hindus, who also marry maternal first cousins without any problem. IF North-dominated Parliament passes a UCC that prohibits such marriages, Modi’s political future will be bleak.Recommend

  • ask

    Please don’t go about guessing religion (or lack of it) of participants here. You are welcome to your personal definition & hierarchy of the celestials. For you God & god are separate but for a humble (devotee) Bhakta of Lord Ayyappa, He is God. Period. Hanuman is final word for His devotees. And so, as per you, the Brahmacharya (celibacy) of deities like Shani & Ayyappa, may be Hanuman too, are fragile! And again: why blame the deity for one’s own frailty?Recommend

  • bmniac

    You are right; only Muslim countriesRecommend

  • bmniac

    well, it is a whole package No cafeteria approach!Recommend

  • Banana

    I said you are projecting your idea of what a religion should be. I did not say you are projecting “your religion”. Read slowly and carefully the next time. For a humble devotee, Ayyappa is still a manifestation of Brahman in the anthropmorphic form and is very much a part of the Universe. Same applies to Hanuman. If you can prove somehow that Nirguna Brahman is exactly the same as Saguna Brahman(which they aren’t, the reason for the very existence of this dichotomy is that), then come and speak to me. And again: the deity itself is frail since it is part of the universe.Recommend