In a recent landmark judgment, the Supreme Court has declared the practice of instant triple Talaq in Muslim communities as arbitrary and unconstitutional while hearing a petition of a divorced Muslim woman, Shayara Bano.
The apex court has asked the Government to bring appropriate legislation in this regard within six months. The judgment, in its limited sense, can be hailed as a milestone in the welfare journey of the Muslim women in India but in the broader perspective, it is another dose of reform in the continuous social transformation injection of the State to change the male-dominated Indian society, cutting across religions and castes. It is left to the Union Government and Muslim Personal law Board to take the call and work out necessary progressive changes in legal instruments to permanently eradicate the evil practice and put in place a suitable alternative system.
The judgment should not be viewed in the limited jurisprudence context of the victory of the constitutional rights of the Muslim women over their personal law rights. A citizen’s bundle of rights need not be split and studied individually under a microscope to ascertain which one is more important than others, as all true rights aim at the welfare of the person. Two rights will never come into conflict, if they are viewed in the larger progressive social context that considers the continuous transition of human society from a lesser human level to a higher social order that is more egalitarian, free and just than before and more free from exploitation.
The debate regarding the scope of judicial vis a vis Personal law Board’s intervention in the matter does not really bear any significance. If one pedestrian finds a big stone lying on the road, it is not necessary for him to wait for the Municipal Corporation or local club or police to remove it. It is a common logic that the stone is a problem and following this visible rationale, the pedestrian can remove the stone if he has a social motivation and capacity. People do not want to know who did not remove the stone but feel happy with its removal.
Similarly, a piece of social reform can be effected by any wings of the society such as the judiciary , the executive , the legislature, the Personal law Board , the religious bodies , the caste groups , the social reformers ,the political parties , the local club and so on. Had the Personal law Board brought the reform, there was no need for court to intervene. Judiciary cannot close the doors to a victim, approaching it for justice. In fact, all bodies should support reform, initiated by any one actor. Sometimes, due to absence of mutual support among different wings of the society, a reform initiated by one body does not sustain. This unfortunate situation had happened when the SC granted maintenance to divorce Muslim women in the Shah Bano case in 1985. This judgment was not supported by the then Rajiv Gandhi Government and it collapsed. In the case of triple Talaq Judgment, all stakeholders should work together to follow it up. Without visiting data-charts, it can be safely concluded from our common knowledge that women of all religious groups experience gender- discrimination in India in various degrees. Polygamy, dowry, domestic violence and willful divorces are some of the worst forms of discrimination and oppression against women in our country.
Discrimination is more in rural areas. Women experience gender-discrimination in social, political and economic fields. There is still the practice of unequal pay for equal work to women. Stereotype jobs are given to women in the organized sector such as office secretary, teachers, nurses and so on but other jobs are culturally closed for them. There is poor percentage of women in the legislature, Executive and Judiciary. In social life, gender discrimination is witnessed from the birth till the death of a woman, starting from termination of female foetus to the sale of a new born girl child, dropping out of girls from schools, early girl child marriage, dowry torture, domestic violence, unjust divorce, absence of alimony, denial of access to religious places, deprivation of inheritance rights, lonely widowhood and helpless death. There are reformative laws but society does not care. Even after the triple Talaq judgment, the practice is feared to perpetuate. Unless society develops the will to change, law cannot bring social reform in a top- down manner.
long time ago, in 1829, lord William Bentinck banned the evil practice of “Sati”. It was a landmark social reform law of that era. The law witnessed Hindu-resistance and appeal in court, but it survived. This was because Raja Ram Mohan Roy stood in support of the law as a social reformer. The combined work of the Government, the social reformers and the judiciary helped in the abolition of the sad practice is highly desirable. After Independence, various social reform laws have been created in India to mitigate evil practices such as untouchability , child labour, child marriage , willful divorce , domestic violence , dowry and so on. But reform -output is not satisfactory as there is less implementation. Neither political parties come openly in support of reforms nor do big social reformers like Ram Mohan Roy emerge. Therefore, casteism, child marriage, dowry, domestic violence and such evil practices continue in society in spite of law.
It is matter of appreciation that Indian women are fighting for gender justice in all spheres. There is some achievements in education, employment and local body representations. But marriage and divorce are still problem areas for Indian women, cutting across religion where more reforms are needed. In 2016, the women’s struggle gave them access to the religious places such as a mosque of Kottayam, or the Shani Shignapur Temple of Maharastra. Hindi Films like Toilet-ek prem katha( a love story) should be more popularized to make the male-dominated society understand the issues of the women in an environment of orthodoxy and male domination.