As the Centre prepares to file its response on the matter in court, the community finds itself wading through several interpretations.
New Delhi: Married, divorced and abandoned twice, Sameena Begum calls herself a victim of Islamic orthodoxy.
In her over six-year struggle against instant triple talaq, ruled unconstitutional by the Supreme Court last year, the 40-year old faced the following: Death threats, character assassination, and allegations of blasphemy and being co-opted by the Hindu Right-wing.
Yet, earlier this year, an unfazed Sameena moved the Supreme Court seeking the abolition of two more practices several Muslim women have labelled criminally unjust.
According to her, nikah halala is akin to rape, and polygamy a humiliation for women. Like triple talaq, she believes, the two must have no place in 21st century India, not least through religious sanction.
“Triple talaq had already been declared unconstitutional, but I wanted to take the struggle ahead… There can’t be a half-baked victory for women,” said the mother-of-three.
The Bharatiya Janata Party (BJP)-led Central government, which has publicly taken a stand against nikah halala, is all set to file its response in the Supreme Court on the matter within one month, ThePrint has learnt.
Without getting into the question of religious freedom, the Centre is likely to base its arguments against nikah halala and polygamy on the gender question. Much like it did in the case of triple talaq, it will cite examples of Islamic countries, including neighbouring Pakistan and Bangladesh, that have shunned the practices, sources have told ThePrint.
In Islam, if a man divorces his wife three times — after following the complete procedure, not by instant divorce — she becomes haram for him. If they wish to remarry, the woman is required to marry another man, who must then divorce her after the marriage is consummated.
Some Islamic scholars argue that the practice was given religious sanction to ensure men did not divorce and abandon their wives on a whim, but several women say nikah halala is simply abhorrent and unacceptable in modern times.
“According to our interpretation, the Quran says that if, upon divorce, a wife marries someone else, then, in order to get back with her husband, she naturally has to divorce her current husband,” said Zakia Soman, founder of the Bharatiya Muslim Mahila Aandolan, a rights organisation that was among the petitioners who challenged instant triple talaq.
“Nowhere does the Quran mention consummation… That is a result of the patriarchal obsession of the orthodoxy with female sexuality,” she added.
“The way nikah halala is followed today is more than rape… it is rape, trafficking and cheating,” she argued. “It must be made an offence.”
Polygamy – the real evil?
Former union minister Arif Mohammad Khan, whose advice the government sought on triple talaq last year, said nikah halala was not a very relevant issue.
“Halala, in its most odious forms, was practised because of instant triple talaq, when a husband would divorce his wife in a fit of rage, and then a maulana would tell him that you can remarry her only after she marries someone else and consummates that marriage,” he said.
In its original form, nikah halala is actually empowering for women, said Khan, who quit the Rajiv Gandhi government and the Congress in 1986 after it brought in a law to overturn the Shah Bano judgment.
“If a couple divorces after following the complete procedure for three months, they cannot remarry, according to the Quran,” he said. “But if she is married to someone else, and he divorces her or he dies, then the woman is free to remarry her first husband — on her own discretion… It is actually a provision that empowers women, but they (orthodox Muslims) follow it in a way to disempower women,” he added.
In his view, he said, the Supreme Court must confine itself to polygamy, which allows a Muslim man to have four wives.
The Quran does not give men a licence to “unrestrained polygamy”, he added. “The Quran talks about very special conditions under which polygamy is permitted… It does not allow the unrestrained or absolute right to polygamy,” he said.
“But these conditions need to be ascertained by another agency, and not the man himself… So the man should be allowed to approach the court and argue that he has ground to take another wife, and the court can then adjudicate,” he added.
‘Do not care if it is just politics’
Asked about the Centre’s support for protests against nikah halala and polygamy, Sameena said the government should bring a law on triple talaq first. “If they don’t do that, it means they are only playing politics,” she added.
However, it is a kind of politics she is not completely averse to. “I don’t care if they are playing politics, but the fact is that at least they stand by me when I get attacked…There is a sense of security, which we never had when the Congress was there,” she said. “Even if it is for the sake of politics, at least those who oppress us have fear.”
The government’s triple talaq bill, which proposes a three-year jail term for a Muslim man who divorces his wife through instant triple talaq, is yet to be introduced in the upper house on account of the opposition’s strident criticism of the bid to criminalise the practice.
Like other victims of instant triple talaq, Sameena does not discount the possibility of joining the BJP. “If they bring a law, and show it is not just jumlebaazi, I am ready to join them,” she said. “But first they need to show it is not jumlebaazi.”