Author -R. BAARGAVI, CMR LAW SCHOOL,BANGALORE
Discrimination based on gender is not new to our society. We are in twenty first century but yet we are far behind and have not yet achieved all the goals we are supposed to achieve. Disparities exist between the rights guaranteed by our constitution to women and the place they live in. The status of Muslim women is more worse she is forced to live in a submissive life despite the holy Quran treats men and women equally. For instance Marriage under the Muslim law is a contract mainly for begetting children. The husband can, on religious
grounds, demand obedience and services from the wife. Moreover, the muslim personal laws has provided the Muslim man with a right to polygamy, though the prophet mentioned the subject only once. A Muslim man is also granted a partial unilateral right of divorce. He can dissolve his marriage by uttering the word 'talaq' thrice even without stating the reasons in the absence of his wife who merely needs to be informed. On the other hand, a woman can divorce her husband only if :-
(a) An agreement is made before or after the marriage by which she is at liberty to divorce
herself from her husband under certain specified conditions which are not opposed to the
policies of Islamic Law.
(b) By recourge to court on one or more of the grounds stated under the law such as
(i) Unawareness about his whereabouts for 4 years.
(ii) failure to get maintenance for 2 years,
(iii) impotency, insanity of the husband, or if he is suffering from some venereal disease,
(iv) cruelty and
(v) option of puberty i.e. if she was married before the age of 15.
Where is equality before law under Art 14 of Indian Constitution recognized?
Although certain grounds fore divorce are guaranteed to Muslim women, practically it is difficult because of the financial problems that accrue and the legal procedures involved. It is the obligation of every husband in Muslim law to maintain his wife, but a divorced muslim wife has no right to maintenance beyond three months. In addition, the muslim law gives her an inferior position with regard to guardianship.
THE QURAN AND TRIPLE TALAQ
The Quran states that even if you dislike a thing about your spouse, live by it in good terms and says that you might start liking it later. 1 "And live with them in kindness. For (even) if you dislike them - perhaps you dislike a thing and Allah makes therein much good." (4:19). The Quran uses the word “Libaas” which means garment to describe the relationship between husband and wife."They are your garments and you are their garments." (Quran 2:187).
The example of the garment used in the Quran is a very powerful as it sums up the relationship between husband and wife. The purpose of the garment is to beautify and not to spoil. It protects, safeguards and comforts the wearer , as such spouses are each other's protectors and committed helpers and the same is also reflected in the teachings of Prophet Muhammad as he said, “the best among them are those who are best to their wives”.
VIOLATION OF CONSTITUTIONAL RIGHTS
Art 21 of the constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law. Right to life does not merely mean an animal existence it is much more wider it is inclusive of right to live with human dignity. The Supreme Court held in the case of 2 Kharak Singh v. State of Uttar Pradesh that “The term life as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed”.
The triple talaq violates the rights guaranteed to Muslim women i.e, Right to live with Human Dignity and they are not protected by the Right to practice and follow any religion under Art 25(1) of the Indian Constitution. These are impediment in achieving the goals of social democracy as inequality between the gender exist and the self worth of the women is undermined. The critical issue here is that whether under a secular constitution a women merely because of her religion identity be assigned a status which is significantly more vulnerable than their counterparts who believe in other faiths. It is only the Muslim wives who suffers this tyranny all the time as such the personal laws remains cruel towards them.
The Art 14 of the constitution states that “The State shall not deny to any person equality before law or equal protection of the laws within territory of India”. Under the practice of triple talaq, a Muslim man can instantly divorce his wife by repeating ‘talaq’ thrice. As per ‘nikah halala’, a woman divorcee, has to marry someone else and consummate this marriage before getting a divorce to remarry her earlier husband. In which cas automatically the right to equality recognized under our constitution is violated. The social status of Muslim women is in a weaker position in our country than women who lives in Countries were the state practice Islamic religion.
The verses of Quran states the following about gender equality that is recognized under the Muslim personal laws ,“ 3 O mankind! Fear your Lord Who (initiated) your creation from a single soul, then from it created its mate, and from these two spread (the creation of) countless men and women.”(al-Qur’an, 4:1)This Verse clearly explains that man or woman are created from a single entity and are basically equal genders. As a gender, one is not superior to the other.“And according to usage, women too have rights over men similar to the rights of men over women.”(al- Qur’an, 2:228 )This Verse also denotes that rights enjoyed by men are the duties of the women an the duties of men are the rights of women. This implies a similitude between both the genders. There is no right conferred on man that woman may be deprived of because she is a woman. “Men, however, have an advantage over them.”(al-Qur’an, 2:228) The Quran here refers to man’s superiority by virtue of his responsibility of protection and maintenance of woman and fulfillment of their rights. Nature has made him stronger, more responsible and tolerant with reference to mundane matters of life. So man is held superior to woman in the grade of responsibility. By this means we can understand that Quran promotes gender equality but it is not recognized and also manipulated in such way that it benefits the men who can escape easily by using the religious principles if he commits any offence on his wife.
IS FATWAS RECOGNISED UNDER LAW ?
The Muslim men always argue based on the rules that are made by fatwas but are these fatwas recognized under the law ? No the Muslim in order to claim the benefits of triple talaq and other anti-Islamic Practices claims these fatwas to be legal . Fatwa is basically an Islamic legal opinion which as its route in Islamic history. Fatwas produced negative repercussion for the image of islam. Fatwas issued in India are the once against the Taslima Nasreen , the excelled Bangladeshi writer pronounced by the Majlis BachaoTehreek , which offered unlimited financial rewards to anybody who would kill her, fatwa issued by a Maulvi in West Bengal on the dress code of Sania Mirza , Tenis Star of India, which aroused the highest controversy and raised people’s doubts about the relevance of fatwa in modern times. Recently Fatwa was issued against a muslim girl from Karnataka who took part in singing reality show and sung other religious devotional song, later it was issued again against a muslim girl from Assam declaring her singing against Islamic values. 4 It has no legal sanctity being short of any power under any statue to ex-communicate the plantiff from the Islamic religion and declaring him a non-muslim.
After a long battle the Supreme Court on 22 nd August 2017 declared that Triple Talaq is unconstitutional. This is day were Quran has been correctly interpreted and Practiced according to the custom . Whereas earlier the Quran was completely misinterpreted and practiced according to the benefits of the men. The Supreme Court had also made the Bharatiya Muslim Mahila Andolan a party in the casetaking cognizance of the survey that
said 92% of the Muslim women want abolition of triple talaq. This is the first time in India that Muslim women challenged an Islamic practice as violation of fundamental right. The Muslim women have come out in open to talk against the discriminatory practices in the name of the Islamic practices. Men or Women all are the citizens of our Country no one shall be deprived of the rights guaranteed to them and will be protected equally under the law. This is just beginning of our movement towards a more socialist and secular nation we have miles more to go and make our nation a discriminate free and bring it equal to other developed countries.
1 http://www.abplive.in/india-news/triple- talaq-simplified- what-quran- exactly-says- about-divorce- 526482
2 AIR 1963 SC 1295
4 Sona Ullah Ganal v. Moulvi Akbar ,1988K.L.J.201 at p.204