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Triple Talaaq, Section 497, Sabrimala and the Indian women

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It is high time we all should stand up against the jingoism in favour of men or women. Let us all be ‘equal’

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Kanchan Basu
In last few years the Judiciary and the Government have made several attempts to gradually pass the ‘Baton’ over to Women. Be the fact that we had for the first time in Indian History a full time Lady Defence Minister in Nirmala Sitharaman or the fact that we had the first lady Advocate to have been elevated to Supreme Court Judgeship directly in Indu Malhotra, it seems ‘Women’ are finally there.
Then we had for the first time in the History of Supreme Court, three sitting women judges. Similarly a lot of other initiatives of the Central Government wherein the ‘Women’ have really been empowered, but today without straying here and there, let us try to focus completely on the role of Judiciary in ‘Empowerment of Women’.
Whenever I start to think about Women in our Society, a dialogue from a Hollywood satirical movie named ‘Dictator’ crosses my mind. The Dictator asks his ‘Pregnant Wife’, “So, what are you having: a Boy or an Abortion”. Normally in our Society Women is either a burden or a ‘Child Producing Machine’, but somehow Supreme Court has taken some very brave measures to resurrect the status of Women and make them realize that they are no less than the other dominant gender.
At first comes the issue of Triple Talaq, a draconian and retrograde system as per which a man can any time utter ‘Talaq’ thrice and the wife gets divorced. This patriarchal monopoly was shattered finally by the supreme court via after a five judges bench which held by a majority of 3:2 that the practice of ‘Talaq-e-Biddat’, popularly known as ‘Triple Talaq’ was held violative of Constitutional values given under Article 14 and 15 and hence invalid.
The most aghast part of this matter was that one of the petitioner in the matter decided by Apex Court was a Woman who was ‘Divorced’ by her husband via a text sent through ‘Whats App’.
In the same Judgment it was also held by three Judges that personal laws of minorities are protected by the Constitution as ‘Fundamental Rights’ but in spite of that the propaganda machinery was activated to show as if Islam is under threat.
Although ‘Triple Talaq’ was a practice which had its origin in pre Islamic customs and not in the ‘Quranic Principles’, but still some Muslim scholars did not like the verdict of the Apex Court. Even Prophet Mohammad (PBUH) had denounced this practice of ‘Triple Talaq’, but the present day Muslim Scholars guided by male chauvinistic approach were threatening the Apex Court to not meddle with the personal laws.
And in-fact it was just instant Triple Talaq which was held invalid. Rest of the forms of Talaq are still valid and only the worst part i.e. the Talaq in single sitting has been held void but still the Muslim husbands continue to have a right to unilaterally divorce a wife where as the wife has no such privilege.
Then comes the issue of scrapping of Section 497 from Indian Penal Code. Let me out rightly put the draft of the scrapped section here which goes like.
“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine or both. In such case the wife shall not be punishable as an abettor”.
Although there are a lot of weird repercussions of the draft of this section but the weirdest of them are as: the act is not regarded to be an offence if the husband of the married woman consents on her part to have an intercourse with another man.
So for having intercourse with a married woman the consent is to be sought from her husband and not from the women. And then comes Section 198 of CrPC (Code of Criminal Procedure) as per which only the husband is given the right to file a case against the man involved in Act of Adultery. These two aspects clearly reflect the highly regressive and archaic thinking and the stereotype that a woman belongs to a man and she cannot personally have her own opinions.
Therefore, to uproot this sexual stereotype and to make sure Article 14 & 21 of Indian Constitution are really implemented on ground, Section 497 IPC (Indian Penal Code) was scrapped by the Apex Court. We all may be having different opinions over this issue but one thing which should be kept in mind while condemning this Judgment is that we should better have some compassion for the women and start believing that women are not necessarily supposed to live in the shadows of their Husbands. Women are not supposed to think as per the desires of her man or the Society. Lets us start thinking of women as equals.
Then comes the Sabrimala issue wherein the women between the age of 10 to 50 years were not allowed to enter to the Sabrimala Temple. It is believed that ‘Lord Ayyappa’, who happens to be the ‘Deity of the Temple’, is an eternal celibate and therefore the Women of menstruating ages should not be allowed in the Temple premises.
This custom was protected by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965. Therefore this bar was challenged on the grounds of ‘Gender Discrimination’ (Article 15 of Constitution of India). The Temple authorities defended this practice as practice warranted by Article 23 (2) of Constitution of India. Also Article 26 of the Constitution of India guarantees a Religious denomination the right to manage its own Religious Affairs.
But the Apex Court with a majority of 4:1 struck down this rule and said that the temple Rule violated the ‘Right to Equality and Right to Worship’. Although the only woman Judge in the bench ruled otherwise and observed that a ‘Secular Polity’ must allow ‘Heterogeneity in Religion’, allow diverse forms of Worship, even if irrational, insisting that Court must not enter into ‘Areas of Faith’.
But the majority of 4 Judges while holding that law and society to act as levelers observed that “any subversion and repression of Women under the grab of Biological or Physiological factors could not be given the sell off legitimacy and any ‘Discrimination of Women’ pertaining to their biological characteristics was not only unfounded, indefensible and implausible but can also never pass the muster of constitutionality”. Further it was served by the majority that “the heart of the matter lies in the ability of the Constitution to assert that the exclusion of Women from Worship is incompatible with dignity, destructive of liberty and a denial of equality of all Human beings. These Constitutional values stand above everything else as Principle which brooks no exceptions even when confronted with claim of Religious belief. To exclude Women is derogatory to an Equal Citizenship”.
Ostensibly, we may be having disagreements on many counts on the above mentioned landmark Judgments of the Apex Court and may be those disagreements are justified as well. But by virtue of such Judgments the highest Court is ensuring that women get what they have deserved and fought for since long.
In fact it is being believed and asserted in History that during vedic times, the status and position of women was comparatively ‘High’ and it kept on deteriorating with passing times. And when we finally had slipped into British control we already were at the lowest possible ebb.
But after Independence, our Government has passed several laws to ensure that women are not discriminated. But one thing should better be kept in mind while talking so highly about ‘Women Empowerment’ is that the remedy does not lie in replacement of male chauvinism by female chauvinism.
Chauvinism or prejudice of any sort is dangerous. Therefore it is high time we all should stand up against the jingoism in favour of men or women. Let us all be ‘equal’.

(The writer is a Kolkatta based columnist)

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