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You can find the current article at its original source at https://www.theguardian.com/commentisfree/2017/aug/25/islamic-instant-divorce-victory-india-talaq-women-harmful-practices
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| Ending instant divorce is a victory. But Indian women have a fight ahead | Ending instant divorce is a victory. But Indian women have a fight ahead |
| (about 21 hours later) | |
| An Islamic practice allowing men to end a marriage by saying ‘talaq’ three times has been declared unconstitutional. We can now challenge other harmful norms | |
| Fri 25 Aug 2017 12.54 BST | |
| Last modified on Fri 25 Aug 2017 20.47 BST | |
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| On Tuesday, the supreme court of India struck down “triple talaq”, the practice where a Muslim man can get instantaneous divorce from his wife just by saying “divorce” three times. | On Tuesday, the supreme court of India struck down “triple talaq”, the practice where a Muslim man can get instantaneous divorce from his wife just by saying “divorce” three times. |
| The unilateral nature of “triple talaq” violates the contract of marriage and its well-defined rights and responsibilities and places power in the hands of men, reinforcing a hierarchy within marriage. The woman’s emotional contribution to the marriage is never acknowledged, and neither are her rights to equal share in any property and child custody as the marriage ends. | The unilateral nature of “triple talaq” violates the contract of marriage and its well-defined rights and responsibilities and places power in the hands of men, reinforcing a hierarchy within marriage. The woman’s emotional contribution to the marriage is never acknowledged, and neither are her rights to equal share in any property and child custody as the marriage ends. |
| So the declaration by justices in Delhi that the practice is unconstitutional was a relief and victory for India’s 90 million Muslim women. This milestone intervention means that family laws can now be brought under the scrutiny of fundamental rights. Though the five judges who sit on the constitutional bench were divided – the ruling passed with a majority of three to two – women’s groups celebrate alongside Shayara Bano, the 35-year-old woman who filed the petition in the supreme court after her husband divorced her in 2015 by writing a letter that mentioned “talaq” thrice. | So the declaration by justices in Delhi that the practice is unconstitutional was a relief and victory for India’s 90 million Muslim women. This milestone intervention means that family laws can now be brought under the scrutiny of fundamental rights. Though the five judges who sit on the constitutional bench were divided – the ruling passed with a majority of three to two – women’s groups celebrate alongside Shayara Bano, the 35-year-old woman who filed the petition in the supreme court after her husband divorced her in 2015 by writing a letter that mentioned “talaq” thrice. |
| But the fight did not begin with Bano. For the past three decades, Muslim women have knocked on the doors of courts with their individual cases challenging the discriminatory practice within family laws. The courts often adjudicated these isolated cases and passed favourable judgments. However, no judgment before Bano’s tested the practice on the basis of fundamental rights of equality and non-discrimination. | But the fight did not begin with Bano. For the past three decades, Muslim women have knocked on the doors of courts with their individual cases challenging the discriminatory practice within family laws. The courts often adjudicated these isolated cases and passed favourable judgments. However, no judgment before Bano’s tested the practice on the basis of fundamental rights of equality and non-discrimination. |
| The judges who voted to keep “triple talaq”, Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, upheld the constitutional protection of the freedom of conscience under Indian law. While the practice has been declared unconstitutional in much of the Muslim world, it has continued here in India because communities are allowed to follow their own religious laws in personal matters, including marriage, divorce, inheritance and adoption. | The judges who voted to keep “triple talaq”, Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer, upheld the constitutional protection of the freedom of conscience under Indian law. While the practice has been declared unconstitutional in much of the Muslim world, it has continued here in India because communities are allowed to follow their own religious laws in personal matters, including marriage, divorce, inheritance and adoption. |
| The two judges maintained that the courts cannot adjudicate on Islamic personal laws and failed to distinguish between statutory laws and faith. They sided with those arguing for “reforms within the community”. But three decades in the women’s movement has taught me that the religious organisations (and some NGOs) within the community have in the past denied legal remedies to Muslim women, forcing them to seek arbitration within the religious framework. | The two judges maintained that the courts cannot adjudicate on Islamic personal laws and failed to distinguish between statutory laws and faith. They sided with those arguing for “reforms within the community”. But three decades in the women’s movement has taught me that the religious organisations (and some NGOs) within the community have in the past denied legal remedies to Muslim women, forcing them to seek arbitration within the religious framework. |
| The jingoistic congratulation of the BJP government feels like an appropriation of the struggle by grassroots groups | The jingoistic congratulation of the BJP government feels like an appropriation of the struggle by grassroots groups |
| The verdict also acknowledges that the practice is not validated by the Qur’an. One of the primary arguments made in court by the umbrella organisation I founded, Bebaak Collective, was that, considering India is a secular and democratic country, all personal laws must be tested against constitutional values, and if there’s a contradiction, principles of equality must prevail. The judgment is the precedent we need to now challenge “nikah halala”, (when a man can remarry his divorced wife only after she is married to another man and divorced by the same), polygamy and other discriminatory practices against women. | The verdict also acknowledges that the practice is not validated by the Qur’an. One of the primary arguments made in court by the umbrella organisation I founded, Bebaak Collective, was that, considering India is a secular and democratic country, all personal laws must be tested against constitutional values, and if there’s a contradiction, principles of equality must prevail. The judgment is the precedent we need to now challenge “nikah halala”, (when a man can remarry his divorced wife only after she is married to another man and divorced by the same), polygamy and other discriminatory practices against women. |
| Outside and beyond the courts, in spite of vociferous opposition, this case has brought the conversations on women’s rights into mainstream public debate. This is a welcome shift compared with the usually deafening silence on inequality within the institutions of marriage and family. | Outside and beyond the courts, in spite of vociferous opposition, this case has brought the conversations on women’s rights into mainstream public debate. This is a welcome shift compared with the usually deafening silence on inequality within the institutions of marriage and family. |
| However, the jingoistic congratulations of the ruling BJP government for its univocal support to the cause of Muslim women feels like an appropriation of the decades-long struggle by grassroots women’s groups who worked with the Muslim community. After all, it was women, not the government, who went to the judicial system to seek redress in the courts. | However, the jingoistic congratulations of the ruling BJP government for its univocal support to the cause of Muslim women feels like an appropriation of the decades-long struggle by grassroots women’s groups who worked with the Muslim community. After all, it was women, not the government, who went to the judicial system to seek redress in the courts. |
| Still, Muslim women from across the board welcome the verdict as it puts an end to the insecurity of their conjugal lives. The judgment will strengthen our resolve to confront violence and abuse within our families, negotiate for property, inheritance and custody rights in our marriages, cohabit in congenial spaces, and perhaps even question the heteronormative framework of family itself, which is premised on heterosexual partnership as well as on kinship and bloodline. | Still, Muslim women from across the board welcome the verdict as it puts an end to the insecurity of their conjugal lives. The judgment will strengthen our resolve to confront violence and abuse within our families, negotiate for property, inheritance and custody rights in our marriages, cohabit in congenial spaces, and perhaps even question the heteronormative framework of family itself, which is premised on heterosexual partnership as well as on kinship and bloodline. |
| In our continued struggle for gender justice, beyond the patriarchy of our communities and state institutions, we uphold India’s constitutional values of equality, pluralism and secularism. | In our continued struggle for gender justice, beyond the patriarchy of our communities and state institutions, we uphold India’s constitutional values of equality, pluralism and secularism. |
| • Hasina Khan is the founder of Bebaak Collective, an umbrella organisation of Muslim women’s groups in India | • Hasina Khan is the founder of Bebaak Collective, an umbrella organisation of Muslim women’s groups in India |
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