http://scroll.in/article/816258/why-flavia-agnes-ends-up-on-the-same-side-as-the-anti-women-muslim-personal-law-board-javed-anand

COUNTERPOINT

Why Flavia Agnes ends up on the same side as the anti-women Muslim
Personal Law Board: Javed Anand

Contrary to her argument, the so-called concessions in the Board’s
affidavit to the apex court is a tactical move for survival and
continued relevance.

9 hours ago

Javed Anand

 am reminded of a friend who used to say, “Bhaagte bhoot ko langoti
sahi." He would then go on to translate his version of the popular
Hindi saying as: "To a fleeing devil trying to hide his shame, a loin
cloth would do.”

The “few positives for women” that Flavia Agnes discovered in an
affidavit recently filed by the All India Muslim Personal Law Board in
the Supreme Court are just that.

Last week, the Jamiat Ulema-e-Hind launched a law institute to bring
prominent muftis (experts in Islamic jurisprudence, or fiqh) and legal
luminaries among Muslims together for the first time for a training
course on Muslim Personal Law. At the inaugural of the institute, the
highly-regarded Maulana Khalid Saifullah Rahmani, general secretary,
Islamic Fiqh Academy, declared that “triple talaq is as essential for
law as a toilet is for any home”.

Got it? A toilet is not a great place to go to, but when you need to
quickly excrete the unwanted out of your system, flush it out of
sight, where else? So also with an unwanted wife.

The toilet analogy found no mention in the Board’s current affidavit
before the apex court. Perhaps it will in future affidavits or
arguments. However, even as it is, the Board’s affidavit reeks of a
medieval, misogynist mindset.

No concessions
The three “important takeaways” that Agnes nonetheless managed to
extract from a document that stinks are as follows. One, in its
affidavit, the Board, for the first time, publicly accepted the
Supreme Court’s judgment in the Shamim Ara case wherein triple talaq
or instant divorce was declared invalid. Two, the Board, also for the
first time, conceded that a Muslim woman victim of domestic violence
has the right to claim relief under the Protection of Women from
Domestic Violence Act, 2005, a secular statute. Three, the Board at
last “seems to have accepted” the judicial interpretation that the
community-specific Muslim Women (Protection of Rights upon Divorce)
Act entitled a Muslim woman to a fair and reasonable provision for her
entire life, not only for three months as it had earlier argued in the
Danial Latifi case.

Agnes would have us believe that these three important public
concessions by the Board mark a huge religio-cultural leap towards
gender justice by India’s Sunni ulema, or religious scholars. “The
agency of the Muslim woman and her multiple choices, which are seldom
highlighted, are captured in a nutshell in this affidavit,” wrote
Agnes.

In an earlier article in Scroll.in, Agnes had made the same argument.
And now that the Board has conceded crucial ground, where’s the point
in Muslim women trooping back to the Supreme Court seeking an end to
triple talaq, nikah halala (the stipulation that a divorced Muslim
woman cannot remarry her former husband until she marries and divorces
another man after having sex with him), and polygamy?

On halala, Agnes wisely maintains a discreet silence since there is
absolutely no space for manoeuvre here. On polygamy, she sees yet
another “important takeway” in the Board’s affidavit. Though she has
problems with the “clumsy manner” in which the Board has argued the
case for continuing polygamy, both are on the same page.

Polygamy vs bigamy
Muslim women, who have petitioned the Supreme Court, want polygamy to
be declared unconstitutional, and banned along with triple talaq and
halala. But the ulema want polygamy to stay as part of Muslim Personal
Law. And so does Agnes, in a roundabout way. For the former, it is
because the Quran so permits it. For Agnes, there is the “harsh ground
reality” that the Hindu Marriage Act has hardly helped curb bigamy.

Agnes argues that because the “second wife” of a Muslim man is legally
recognised, she has the “same status” as the first wife. Thus, Muslim
women are far better placed than their Hindu sisters because having
banned bigamy, the Hindu Marriage Act refuses recognition to the
second wife. As a result, the Hindu second wife has no legal claim on
her husband’s income or wealth and in case of separation, she is
rendered destitute. Monogamy sounds good in principle, in line with
the constitutional right to equality and non-discrimination. But in
practice, barring bigamy renders the second wife highly vulnerable.

But what about the first wife? Is cash for sex what marriage is all
about? These do not seem to register on Agnes’ radar. For others,
including the United Nations Committee for the Elimination of
Discrimination Against Women, polygamy is a matter of serious concern
because of its consequences for women (first wife or second) and
children within such marriages.

Yasmin Rehman, who has been researching polygamous practices in the UK
for the past six years, notes:

“The emotional and psychological impact of polygamy is significant
with some women stating they felt they had somehow failed as a wife,
others were burdened by the shame of being a first wife as they knew
they were being pitied at one level and judged at another. The
hierarchy of wives and ensuing competition for the attention of their
husbands places a huge strain on women. Polygamy drives down the age
of women and girls, it also enables older men of wealth and status to
gain sexual access to young women for marriage. I have gathered
evidence of incidents of physical, psychological and sexual abuse
directly linked to their polygamous marriages – either due to
resisting it or the dynamics within these unions”.

Rehman quotes author Geraldine Brooks, who in her book, Nine Parts of
Desire, refers to polygamy as:

“...[T]he spectre that haunts every Muslim woman…The threat,
possibility and fear that their present or future husband may take
another wife is a reality for many Muslim women, and undoubtedly
influences their perception and management of their relationships”.

Unlike Agnes, while Rehman believes that responding to polygamy
requires much more than a mere ban on its practice, she is fully alive
to the multiple consequences for women and children of this grossly
discriminatory practice against women. It’s not just a question of
money.

In keeping with Agnes’ monochromatic perspective on polygamy, one
might as well ask: Why not demand that the personal law for Hindus be
amended to legalise bigamy in order to bring the Hindu second wife on
par with her Muslim counterpart? This Agnes cannot do for it would
take her to the camp of right-wing Hindu men, who agonise over being
denied the same right that Muslim men are free to enjoy: the right to
multiple wives.

Who knows best?
We have a truly ironical situation here. Despite her disclaimers, her
distancing herself from the internal contradictions in the Board’s
affidavit, Agnes effectively ends up on the same side of the street as
the male-oriented All India Muslim Personal Law Board.

On the other side of the street is an entire spectrum of Muslim women
who individually and collectively have petitioned the Supreme Court.
Shayara Bano (Uttarakhand), Afreen Rehman (Rajasthan) Ishrat Jahan
(West Bengal), Bharatiya Muslim Mahila Andolan and the Bebaak
Collective. The All India Muslim Women’s Personal Law Board, an
organisation that years ago parted ways with its “anti-women”
counterpart, is heading towards the apex court too.

Are we to believe then that Muslim women don’t know what’s good for
them, but the All India Muslim Personal Law Board and Agnes do?

Contrary to how it appears to Agnes, the ulema in India have made no
conceptual leap. The Board’s affidavit is simply a tactical move for
survival and continued relevance. Until Shayara Bano and following
her, a host of Muslim women petitioned the Supreme Court, the ulema
were content co-habiting in a live-and-let-live world. It was wise on
their part to continue running their male-oriented Darul Qazas
(Shariah courts), and maintain strategic silence while individual
Muslim women approached the courts in search of justice. But what will
happen to them and their institutions if the apex court rules that
triple talaq, nikaah halala and polygamy are unconstitutional?

Clearly, it’s time for the ulema to at least appear reasonable. The
“important takeaways” from the Board’s affidavit mean nothing more
than the fact that it is now compelled to concede in writing what it
in any case has been reconciled to for years. No one dared challenge
verdict after verdict from the high courts and the Supreme Court
declaring the triple talaq practice as invalid from a Quranic
perspective. The takeaways are simply the langoti the Board needs to
run away from the shame of their continuing denial of justice to
Muslim women.

-- 
Peace Is Doable

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