Triple Talaq’s AIMPLB Affidavit: Flavia Agnes Vs Javed Anand.

Flavia Agnes wrote an article, “Triple Talaq: The Muslim Law Board’s affidavit in the Supreme Court has a few positives for women”, in @Scroll_In.  Her article attracted immediate flak from other concerned quarters such as: “Why Flavia Agnes ends up on the same side as the anti-women Muslim Personal Law Board”, by Javed Anand. Agnes practices law at Mumbai High Court and focuses on “bringing women’s rights to the forefront within the legal system and in contextualizing issues of gender and identity”.  See Majlis website -an organisation co-founded by her. Therefore, holding her to be on the same side as #AIMPLB, who she charges with “unashamed patriarchal posturing and {defending} instant triple talaq on the ground that it prevents women from being murdered by their husbands”, looked rather harsh & hasty -an instance of “take no prisoners” position. Is it so?

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Agnes’ is a legally nuanced position, which is  further informed by pragmatism needed in legally solving divorce/ maintenance issues of women who seek help of her organisation and what  view they have of their legal rights or lack thereof. Javed’s position is of a progressive reformer who wants to challenge interpretations of Islam that foster misogyny and bigotry.  His approach is clear from the barbaric quote he provides of the “highly-regarded” Maulana Khalid Saifullah Rahmani, general secretary, Islamic Fiqh Academy: “triple talaq is as essential for law as a toilet is for any home”. The former is looking at the ‘Affidavit & the Law’, while the latter is alarmed by the “Affiants’ true Attitudes and Agendas”.

Agnes’ article is definitely problematic, but not in the way Javed has sought to chastise her.

”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“.

The “belief” that Javed has formed is largely unaided without Agnes’ article providing any quarter. She was aware that her seeking ‘legal-positives’ in AIMPLB affidavit was likely to prove “very challenging” and yet she has waded into the debate without taking due care. The truncated quote that Javed has used says this in her full version.

“The agency of the Muslim woman and her multiple choices, which are seldom highlighted, are captured in a nutshell in this affidavit. This is generally not highlighted in the media. This approach of negating the positive aspects of Muslim Law is a great disservice to Muslim women”.

Her limited point here is that divorced Muslim women are not ‘without legal remedies’ as is the impression often created by media either through acts of commission or omission.  If this impression reaches Muslim women, then they too may be deluded {“disservice”} that they are orphaned by Indian laws and courts. This point can be challenged but it can in no way be twisted to impute as giving ‘carte blanche’ to Sunni Ulema as Javed contends. However, “the positive aspects of Muslim law”, which she refers to here, were not Sui Generis to Muslim Personal law; but, in fact, were read into it by Higher Judiciary despite opposition from Ulema and AIMPLB at every stage. Moreover, the second case she cites is of Domestic Violence Act {“secular law”}, which is not a Muslim Personal Law at all and Supreme Court gave it primacy over the latter as she herself writes.  She should have been careful while making this point.

Apparently the Affidavit of AIMPLB compares polygamy among Muslims and Hindus, which she mentions as follows: “The point about bringing in a comparative perspective between Hindu and Muslim polygamy is also valid though it must be conceded that it is made in a very clumsy manner”.  She considers such a comparison is not only not odious, but deserves consideration and goes on to elaborate how. Cut to the barebones her contention is that ‘the polygamous Muslim personal law affords better legal protection {property/maintenance/progeny} to subsequent “wives” after the first one than the monogamous Hindu personal law, which turns them into “non-wives” or “keeps”. This ‘legally utilitarian’ argument did attract following deserving comment from Javed:

“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”.

Religions or Laws can constrain humans but have hardly proved to be transformative. Polygamy is no exception. Just because Hindu law makes bigamy or polygamy “illegal” has not stopped it’s occurrence among Hindus; nor has permissive Muslim Law {up to 4 wives} proliferated polygamous or even bigamous marriages as the sex ratios among Muslims would demonstrate.   More over, just like Muslim law, even the Hindu law has evolved through Higher Judiciary’s innovative interpretations and expansive judgments over the years in deference to Directive Principles of the Constitution. Agnes’ case on “valid comparison” may be examined with this background.

‘Live-in Relationships’ and Concept of ‘Keep’

The domestic violence act sought to redress the “grave hardship caused to a large number of Hindu women” by Hindu law that gave no legal right in bigamous marriage. She quotes how Justice Markandey Katju in 2010 denied LIR benefit to a woman apparently by too narrowly interpreting what LIR means and thereby excluding “a ‘keep’ whom the man maintains financially and uses mainly for sexual purpose and/or as a servant” and then justified his regressive judgment by averring “then it is not for this Court to legislate or amend the law”. Higher judiciary may not legislate, but does routinely amend or lay down laws by the simple act of interpreting statutes and expanding their scope or laying down guidelines. After citing this “setback to Hindu women’s cause’, she rushes to add, “Under Muslim law there is no concept of a so-called keep and subsequent wives are deemed to be married and enjoy the same status as the first wife. There is a presumption in favour of a valid marriage rather than concubinage”. What happens if a Muslim man  marries a “Fifth Time” or has physical relations with a woman without marrying her (LIR or “Keep” of Katju)? What is her status?  Without factoring in these considerations, her assertion of “presumption against concubinage” is of little value.

Her plea for keeping “in mind this harsh ground reality” suffers from two fatal faults.

  1. Category Error:  A Pragmatic Advise to an Individual or small group cannot make for Sound Public Policy. It may be desirable to caution daughters/ sisters/ wife or women-friends to avoid moving out alone late at night in socially regressive localities. But to frame public policy of banning women from moving outdoors after say 20:00 hours or visiting certain areas or classifying certain localities as socially regressive by keeping “in mind harsh ground reality” would be an abject failure in good governance.  Public policy or laws should be guided by what is Right and not be held hostage to harsh ground realities. Atrocities against Dalits, the gravely stigmatised lower castes, have not ended on enacting laws to severely punish such heinous crimes.  But, does it mean the statute has failed? Or have we failed to statute?
  2. Bigamous or Polygamous Obsession: The rights of 2nd, 3rd, or 4th wife alone have received consideration in this discourse, wherein superiority of polygamous Muslim law is extolled in {valid?} comparison to monogamous Hindu law.  The 1st wife’s predicament is totally neglected because she is legally secure “money” wise. The ‘social or emotional trauma’ Javed has highlighted by quoting Yasmin Rehman’s study: “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”.  But even the economic trauma of the 1st wives in both Hindu and Muslim marriages is also a “Harsh Ground Reality”.  Numerous cases can be cited where first wife along with children have been simply abandoned by Hindu and Muslim and Christian Men to marry or to live with another woman. Women may have a legal recourse, but it seems only a small albeit increasing percentage take that road.  Therefore, that Hindu or Muslim law has failed largely to protect such women in practise is also an equally daunting harsh reality.

Despite such differences it is incorrect to say that “Agnes effectively ends up on the same side of the street as the male-oriented All India Muslim Personal Law Board”.  AIMPLB may have made “Tactical Concessions” in it’s affidavit to achieve a larger strategic goal as Javed holds, but is there any doubt it still represents an advance, may be a reluctant one, over their earlier positions? Moreover, it has tacitly admitted that Higher Judiciary has and therefore can in future adjudicate in matters of religion based laws. Moreover, there is nothing to prove Agnes does not oppose the pernicious doctrine of Triple Talaq.

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