Triple Talaq: I Can't Get No Satisfaction

I made my Buzzfeed debut by being a buzzkill. Go me! You can read the edited, no-nonsense version here. The unedited, more sprawling version is below. 

Flexible woman, by Li Hongbo.

Flexible woman, by Li Hongbo.

Ladies who live in India, did you wake up this morning feeling a little spurt of power fizz through your veins? Did you look out of your window and sense -- over and above the slightly rancid smell of pollution, garbage and general apathy -- that the world was changing? Don't say no. If you do, you'll just be breaking the Indian Law Minister Ravi Shankar Prasad's heart. 

Speaking to the press after the Supreme Court's decision to strike down the practice of triple talaq, Prasad announced that "it's a great dawn for women's empowerment". He reportedly spoke about how the verdict marked "the celebration of empowerment of India" and "the beginning of the fight for equality of Muslim women." Prasad is not the only one. The mood on the Indian internet has been entirely celebratory since the verdict was announced, with everyone from the Left to the Right and those in between putting up status messages that could easily be replaced with GIFs of happy dances. Some, like Prasad, found this an occasion to yet again feel warm and fuzzy adoration for our dear leader, Narendra Modi, who (despite his own somewhat dubious marital history) has been vocal in his opposition to the arbitrary abandonment that comes with triple talaq. Others applauded the complainants in the triple talaq case who have waited for years for the country's apex court to side with them and not their ex-husbands. 

And why not? Triple talaq, formally known as talaq-ul-biddat, is the fast-food version of a divorce. A husband says or writes the word "talaq" thrice and the marriage is over, usually with the now ex-wife getting nothing and the husband remarrying pronto. It's difficult to decide what is more appalling -- that men think sending a speed post message that reads "talaq talaq talaq" is an acceptable way of ending a relationship or that the All India Muslim Personal Law Board actually supported triple talaq for years. The first argument was that triple talaq actually benefited wives because it meant husbands wouldn't have to murder them if they wanted out of the marriage. Seriously. Eventually, the Muslim Personal Law Board grudgingly accepted the practice was perhaps "not the best form of talaq" and came full circle when it described the judgment as a victory for Muslim women. Bottom line: when the AIMPLB is on board with the Supreme Court it's worth celebrating, right? 

Yes, but can you really do the happy dance when you know that the triple talaq verdict was not unanimous. A 3:2 decision is not so much a victory as a close shave. More disturbing than the AIMPLB's absurd arguments in support of triple talaq is the chilling reality that even the Chief Justices of India tread gingerly when it comes to conservative terrain. The final judgment is not that triple talaq should be struck down because it discriminates on the basis of gender, but that it should not be considered constitutional because it isn't written in the Quran.

Religious identity and constitutional rights have a weird relationship in our legal system. In 1951, the State of Bombay vs Narasu Appa Mali concluded personal laws didn't come in the realm of the Constitution. Two judges used loophole-infested reasoning to conclude that uncodified personal laws may not be scrutinised for human rights violations because to do so would make them discriminatory. If you think that sounds weird, just skim through the basics of the case and remember to breathe when you get to the part where lawyers argue that marrying in order to have a son is a central tenet of Hinduism.  

The Narasu Appa Mali verdict may not ring as many bells as Shah Bano's, but it has been upheld by the Supreme Court at least once in the past, which makes it an important precedent. There were those who hoped that the triple talaq case would see the Supreme Court reconsidering the Narasu Appa Mali verdict. Triple talaq seemed to be a pertinent lens through which to debate the constitutionality of personal laws. However, this question was ignored by most of the bench and Justices Nazeer and Khehar claimed personal laws are included among fundamental rights. In Indian Express, PB Mehta explained why this was just a little chilling:

"Justices Nazeer and Khehar’s dissenting decision is the strongest defence we have seen of community rights over individual rights, religion over liberty and equality, and private law over statutory enactment for decades...the normative picture it presents of the Indian Constitution is frightening, since it leaves no recourse for individuals to have their dignity and equality affirmed; it puts them entirely at the mercy of their communities. It is chilling to read a sentence like, 'It is not open to a Court to accept an egalitarian approach over a practice which constitutes an integral part of a religion.' This, even when these practices have the imprimatur of state power behind them. It elevates faith to an un-negotiable status."

Elevating faith so that individuals are "entirely at the mercy of their communities". These are propositions that have been advanced in a Supreme Court verdict. They can and probably will be used in future cases to decide where the individual stands in relation to their community. Communities are usually shaped according to majoritarian beliefs, which means that if you are, for instance, a beef-eating, anti-caste, anti-establishment, feminist Hindu, then it's probably time to check whether you can score a good deal on a mail-order spouse website.  

When you've recovered from that sinking feeling, you may want to remember that although triple talaq has been struck down, it has not been banned. For something to be banned, there needs to be a new law declaring it as criminal and for all of the government's chest-thumping, there's little chance of even this administration risking the ire that would follow legislating on Muslim personal law. In any case, those found guilty of triple talaq will be charged with existing laws, which isn't necessarily a bad thing as lawyer and activist Flavia Agnes has argued in the past. It's a practical way forward in a country where court decisions take time to register. Take, for instance, Section 66A, which despite being annulled, was recently used by a local court in Hyderabad to convict a man. What chance would a new law attacking male privilege stand of being remembered by the courts and the police in a society that is as contemptuous of women's rights as ours is? 

The fact is, contrary to Prasad's statements, the triple talaq verdict is not a new dawn for Indian women. It's a victory for the complainants and a hard-won victory at that, so let's all raise a toast to them. But it is a win whose benefits are limited and there's no way to know whether it will make an impact upon lived reality. For triple talaq to genuinely become a thing of the past, the Centre and state governments will have to work at upholding this verdict.

We are a country in which mothers are not legally recognised as natural guardians of their children; where the age of sexual consent and marriage is lower for girls so that they can be parcelled off as sex objects; where just the fact of a baby surviving into girlhood is a small miracle. Child marriage continues to be rampant in the country, with girls being paired with older boys and men. The wives of these marriages do not have the freedom to leave their marital homes or marry again the way the husbands can. Public spaces are unsafe for women and in homes, they are vulnerable to being abused by familiars ranging from brothers, uncles to mother-in-laws. One look at any news publication and you'll see countless examples of violent crimes against women. They're made up of acts that seek to dehumanise women and reduce them to a broken, traumatised victimhood. Few of our elected governments have managed anything more than token gestures to fix this imbalance. That's probably one of the reasons why Modi has got so much attention for opposing triple talaq. Very rarely do women's rights fit in seamlessly with any political party's agenda. 

Anyone who wishes to cheer for this government's commitment to gender equality is free to do so. It's still a free country and we're all equally entitled to our opinions (though some are perhaps a little more equally entitled than others). If you can ignore how the government is casting itself as the saviour of Muslim women, despite having done precious little by way of actual constructive support, go right ahead. If it seems to you that all this jubilation is heartfelt and doesn't stink just a little bit of politicised power play, that's fantastic. However, consider this: the Centre that's flaunting the verdict in the triple talaq case as its progressive, feminist badge is the same one that argued it's not a big deal if a husband rapes, sorry, forces his teenaged wife to have sex. He's a husband and therefore should not be penalised. She's a wife, so she should just lie back and think of Indian culture. Because that's how India defines marriage. If the two were not married, an adult male having sex with a minor girl would be a crime but because they are husband and wife, it's not rape. 

The Centre, and this government in particular, has repeatedly argued that acknowledging marital rape would weaken the institution of marriage. Last year, in Rajya Sabha, Woman and Child Development Minister Maneka Gandhi said, "It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/ illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament etc.". It's surreal that we, in the twenty-first century while puffing our chests with pride at being global players, have to still debate the criminality of marital rape. At this point, our lawmakers don't agree that a woman has the right to say no to her husband. The Indian marriage is built upon the understanding that a husband owns his wife's body, so part your legs like a good girl.

If the government really does want to fight for gender justice, gender dignity and gender equality -- Prasad claimed that it's because these issues are close the government's heart that it fought for triple talaq. Never mind the detail that the actual fighting was done by women complainants and NGOs -- then marital rape would be an excellent follow-up cause. It genuinely affects every married Indian woman, irrespective of religion and social demographic. Triple talaq is an issue that is deeply relevant to the small numbers who are affected by it, but marital rape affects everyone. Yet government after government tries to normalise this violence and inequality. In 2017, the same government that is so quick to piggy-back upon the triple talaq verdict, won't acknowledge that the average Indian woman gives up fundamental rights when she becomes a wife. If her husband doesn't take advantage of this, then she's lucky. If he does, she's helpless. 

It might seem like the conversation about marital rape is just privileged, feminist banter, but it isn't. Across social divisions, we raise our daughters with the worldview that presents marriage as the norm. It's what we tell them is the thing to look forward to, to dream of -- an institution that's built upon the premise that her consent is immaterial. The demand that marital rape be recognised as a crime is not a war cry as much as a plea to recognise the fact that a woman deserves the same fundamental rights as her male spouse.   

This is the gender equation that this government (and those before it) have upheld while claiming to be supportive of women's rights. Think about that as you make your way through a day that has come following, in Prasad's words, "a great dawn for women's empowerment". 

Deepanjana Pal