Talaq, Talaq, Talaq an Analysis of Religious Women’S Agency and Rescue Narratives in the Case of the Indian Triple Talaq Ban

Talaq, talaq, talaq An analysis of religious women’s agency and rescue narratives in the case of the Indian triple talaq ban

Ine Versigghel MA Gender and Diversity 01403781

Supervisor: Prof. Dr. Iman Lechkar Co-supervisor: Prof. Dr. Eva De Clercq

Masterproef voorgelegd tot het behalen van de graad van Master in Gender en Diversiteit Klassieke masterproef Word count: 23,335

Academic year: 2019 – 2020 Submitted on: 18/07/2020

This dissertation is an exam document that has not been corrected for any errors found. This work may be referenced in publications, subject to the written permission of the supervisor(s) mentioned by name on the title page.

Deze masterproef is een examendocument dat niet werd gecorrigeerd voor eventueel vastgestelde fouten. In publicaties mag naar dit werk worden gerefereerd, mits schriftelijke toelating van de promotor(en) die met naam op de titelpagina is vermeld.

A Dutch summary of this master’s thesis will be submitted at the student administration.

Acknowledgements

Writing a dissertation is not an easy task, and after having written my second one, I can attest to this even more. For months I have worked hard to deliver this end result, and while most of it was individual work – researching, thinking and writing behind my desk – I got help and encouragements from many people. I would like to take this opportunity to thank several of them.

First, I would like to thank my supervisors, who guided me through the process while leaving me enough freedom to tackle the topic in my own way. Professor Iman Lechkar, it was through your course ‘Islam and gender’ that I encountered the original topic and research question for this master’s thesis. Your encouragements, and those of my classmates, were crucial to me. Professor Eva De Clercq, I have known your expertise in Indology and your kindness for six years, and I felt happy that you agreed to be the co-supervisor to this dissertation, as you guided me the last years as well. I hope that you see my improvements as I do.

Second, I want to thank my family and friends. We did not see each other often, as I wrote the biggest part of my thesis while we were in a nationwide not-really-lockdown, and I always worked alone in my room. Yet you have always been there for me, for which I am beyond grateful. Michael, mera pyaar, I cannot not mention you here. Your endless love and patience were invaluable to the writing of this dissertation. You know what you mean to me.

And lastly, Sigrid, I promised you a paragraph, so here we are. As my honorary third supervisor your critical remarks and questions and all the proofreading (so much proofreading, how can I ever thank you enough) brought my master’s thesis to a much higher level. But above all, I am thankful for our friendship, with all its reassurances and laughs, and the knowledge that I can count on you every day, as you can count on me.

Thank you.

Table of contents

Acknowledgements ...... i Abstract ...... iv English ...... iv Nederlands ...... iv 1. Introduction ...... 1 2. Background ...... 4 2.1. Islam in India: A history of interreligious tensions ...... 4 2.1.1. Precolonial period: Muslims as invaders ...... 4 2.1.2. Colonial period: British delineation as the roots for a separate Muslim identity ...... 5 2.1.3. Struggle for Independence: Hindu and Muslim nationalism translated into politics and the two-nation theory ...... 6 2.1.4. Before and after Independence: Communal violence ...... 7 2.1.5. Current situation ...... 9 2.2 Islam and gender in India ...... 10 2.3. Triple talaq as a divorce principle in Islamic law ...... 12 2.3.1. Islamic law ...... 12 2.3.2. Divorce principles in Islamic law...... 13 2.3.3. Triple talaq in Islamic law (before the 20th century) ...... 14 2.3.4. Triple talaq in Islamic law (reform) ...... 15 3. Triple talaq in India: Politically and juridically ...... 17 3.1. The Indian constitution and Muslim Personal Law ...... 17 3.1.1. The Indian constitution ...... 17 3.1.2. Divorce in Indian law ...... 18 3.1.3. Islamic divorce in Indian law ...... 18 3.2. Muslim Personal law and triple talaq: Key juridical changes and tensions ...... 20 3.2.1. The Indian Constitution and a Uniform Civil Code ...... 20 3.2.2. Shah Bano Case, 1985 ...... 20 3.2.3. Muslim Women (Protection of Rights on Divorce) Act, 1986 ...... 21 3.2.4. Shayara Bano Case, 2017 ...... 21 3.2.6. The Muslim Women (Protection of Rights on Marriage) Act, 2019 ...... 22 4. Triple talaq in India: Arguments in the public debate ...... 24 4.1. Before the Muslim Women (Protection of Rights on Marriage) Bill, 2017 ...... 24 4.1.1 Islamic scholars: Is triple talaq Islamic? Is triple talaq valid under Islamic law? ...... 24 4.1.2. India: Who can interpret Islamic law and/or Muslim Personal Law? ...... 25

4.1.3. India: To what extent is Islamic law authoritative if it goes against constitutional and human rights of (gender) equality? ...... 27 4.1.4 Other Muslim countries which already banned triple talaq ...... 29 4.2. After the Muslim Women (Protection of Rights on Marriage) Bill, 2017 ...... 30 4.2.1. The necessity of the Bill and Act...... 30 4.2.2. Incongruences in The Bill and Act ...... 32 4.2.3. Communal politics ...... 33 5. Agency of Muslim women in India ...... 35 5.1. Religious women’s agency ...... 35 5.2. Muslim women’s agency in marriage and divorce ...... 36 5.3. Muslim women’s agency in activism ...... 37 6. Saving brown women ...... 40 6.1. Silencing brown women ...... 40 6.2. Saving brown women from brown men ...... 42 6.3. White people saving brown women from brown men ...... 44 6.4. Brown men saving brown women from brown men ...... 46 7. Femonationalism ...... 47 8. Conclusion ...... 52 References ...... 55 Chapter 1 ...... 55 Chapter 2 ...... 56 Chapter 3 ...... 57 Chapter 4 ...... 58 Chapter 5 ...... 60 Chapter 6 ...... 61 Chapter 7 ...... 62 Legislative ...... 63

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Abstract

English In July 2019, the Indian Hindu nationalist Bharatiya Janata Party (BJP) issued a ban on triple talaq – a contested form of divorce in Islamic law which is unilateral, instantaneous and irrevocable – which sparked heated debate in the country. First, I give a contextualisation of India’s socio-political, juridical and communal context, triple talaq and the arguments used in the debate by means of a literature review. Second, I analyse parts of this debate using a feminist theoretical framework, borrowed from religious women’s agency studies and postcolonial feminist theories on rescue narratives. My analysis shows that Indian Muslim women do have agency beyond resistance agency, but that in communal discourse they are portrayed as passive victims in need of saving from their oppressive religion and men. I argue that this serves BJP doubly: a rescue narrative furthers their nationalist agenda while criminalising Muslim men aids their communal politics.

Nederlands In juli 2019 vaardigde BJP, India’s grootste hindoenationalistische partij, een verbod uit op triple talaq – een omstreden echtscheidingsvorm in de islamitische wet die eenzijdig, onmiddellijk en onherroepelijk is – dat leidde tot een verhit debat in het land. Ik geef eerst aan de hand van een literatuuronderzoek een contextualisering van de sociaal-politieke en juridisch context en religieuze spanningen in India, triple talaq en de argumenten gebruikt in het debat. Daarna analyseer ik delen van dit debat met behulp van feministische theoretische kaders, ontleend aan de studie van handelingsvrijheid van religieuze vrouwen en postkoloniale theorieën over reddingsnarratieven. Mijn analyse toont aan dat Indische moslimvrouwen meer dan enkel verzetshandelingsvrijheid hebben, maar dat ze in bovenstaand debat afgeschilderd worden als passieve slachtoffers die gered moeten worden van hun onderdrukkende religie en mannen. Ik beargumenteer het dubbele voordeel voor BJP: een reddingsnarratief ondersteunt hun nationalistische agenda en criminaliseren van moslimmannen helpt hun hindoefundamentalistische agenda.

1. Introduction

Talaq, talaq, talaq. One year ago, I did not know the meaning behind these three words, let alone the impact of them on many Muslim women and the Indian society as a whole. It was only while looking for an essay topic for my supervisor’s course ‘Islam and gender’ that I stumbled upon triple talaq, a highly contested divorce principle in Islamic law. A simple pronunciation of talaq, talaq, talaq – hence called triple talaq – by a Muslim husband instantaneously and irrevocably divorces him from his wife. In many Islamic branches and the majority of Muslim countries in the world, triple talaq is considered invalid or has been outlawed. Yet in India, a country with a Muslim minority of at least 172 million people, triple talaq was until recently still in use. As a result of India’s long history of colonial law and communal tensions between Hindus and Muslims, personal laws are religion-specific and for Muslims, uncodified. Following a 2017 court case in which triple talaq was ruled invalid, the 2019 Muslim Women (Protection of Rights on Marriage) Act was passed in the Indian parliament. This Act, also referred to as the triple talaq ban, both established triple talaq as invalid, as rendered the pronouncement of it a criminal offence.

During my original research on triple talaq, I learned that the ban of it in India last summer sparked heated debate and protests. In my essay I focussed on Muslim women activism, yet I became intrigued by one of the arguments against the Indian triple talaq ban. This argument pointed out how BJP, India’s main Hindu nationalist party and responsible for introducing and passing the Act, stepped up as the saviour for Muslim women’s rights but at the same time criminalised Muslim men. As a student of gender and diversity, with a previous master in Indian languages and cultures, this topic was of particular interest to me to look further into. Through my bachelor and first master degrees I acquired a solid knowledge about the Indian history, socio-political context and also conflicts, and my current master in gender and diversity enabled me to see the circumstances in a feminist theoretical light1.

Much ink has been spilled on triple talaq, whether it be from an academic, journalistic or activist perspective. Among them, a vast amount discuss triple talaq in Muslim majority countries or in Islamic

1 In a way of defining my positionality, which as an author influences my research focus and ideas, I would like to remark that I followed a BA and MA degree in Indian Languages and Cultures at Ghent University and spent a semester in India twice, and I am about to finish an MA in Gender and Diversity with this dissertation. However, I am a white Belgian woman, and my academic knowledge about Islam was prior to the research for this master’s thesis mostly limited to a course about the history of the Islamic world and the course ‘Islam and Gender’ (VUB).

1 law in general (see for example Sonneveld, 2019 & Munir, 2013). However, as will be explained, the arguments against and in favour of triple talaq in India are for the most part interwoven with India’s specific historical situation and the minority status of Muslims in the country and cannot be generalised or borrowed from a country with a different socio-political context. The arguments against the Indian government’s ban on triple talaq are fairly recent – as the Muslim Women (Protection of Rights on Marriage) Bill was only proposed in 2017 and the Act passed in 2019 – and academic research and literature on it is thus still for a large part in the making.

While looking for academic literature on the Indian triple talaq ban that uses feminist theoretical frameworks, my search only gave me few results, as shown below. Intersectionality is one of the most well-known feminist frameworks and a very grateful theory to be applied here as the debates show an intersection of gender, religion, socio-economic status and several more. Yet only a handful of authors specifically mentioned it (see for example Abbas, 2019). The concept of agency is applied more often (see for example Drabu, 2018 & Sur, 2014, 2015, 2018 & Tucker, 2008) though mostly with a focus on the absence of agency for Muslim women. The search result ‘triple talaq femonationalism’ turned out zero results. There is still little research that uses a feminist theoretical framework to analyse the debates and arguments surrounding (the ban on) triple talaq in India.

With my master’s thesis, I would like to make a start towards filling this void in the academic literature by answering the following research question:

How do concepts from feminist theory contribute to an analysis of the arguments used at the different sides of the debates surrounding (the ban on) triple talaq in India, which are debates with an interreligious focus in a non-Western socio-political context?

When one is writing a master’s thesis, people often ask for its topic. To this I always replied, ‘Do you have 15 minutes of spare time?’ in order to give them a necessary contextualisation of Islam in India and the meaning of triple talaq, without generalising or losing nuance. Due to the high specificity of the case discussed in this master’s thesis, I felt compelled to follow the same structure here as in my fifteen minutes’ explanation. This means that the first three chapters (chapter two to four) are reserved for contextualisation in the form of a literature review. The last three chapters of this dissertation (chapter five to seven) consist of a critical analysis the Indian triple talaq ban. I developed one of the arguments against the triple talaq ban by using a feminist theoretical framework, combining the elaboration upon this framework with the discussion of how the framework can be applied to my case study. Below I give the structure of the different chapters and the methodology used in them.

Chapter two gives necessary background information on the socio-political context of India – including an elaborate historical overview with a focus on Hindu-Muslim tensions – and on triple talaq as a

2 divorce principle in Islamic law. In chapter three, ‘Triple talaq in India: Politically and juridically’ I sketch the Indian debate on the Muslim Personal Law and important policies and court cases which led to the Muslim Women (Protection of Rights on Marriage) Act of 2019. For this literature review, I make use of many secondary sources on the various topics that I discuss, as well as primary sources such as the legal documents and policies which I refer to.

Chapter four, titled ‘Triple talaq in India: evolution of the public debate’ gives the main arguments in favour of and against the triple talaq ban, structured in a chronological manner. The scope of this master’s thesis does not allow for a full discourse analysis of the arguments in favour of and against (the ban on) triple talaq in India. Instead, I choose to rely on discourse analysis done by other authors found by means of a literature study. The results of these are then organised in a comprehensive way in central themes and supplemented with examples found in further research on the topic.

Chapter five, six and seven focus on answering my research question on how feminist frameworks can be applied to my case study about the triple talaq ban in India by means of a critical analysis. Due to the limited scope of this dissertation, I focus on three concepts from feminist religious and postcolonial studies, divided over three different chapters. In each chapter, the theoretical framework is elaborated upon after which it is applied to the context of the triple talaq ban in India.

In chapter five, titled ‘Agency of Muslim women in India’, the focus is on religious women’s agency, as conceptualised by Saba Mahmood (2001) and Kelsy Burke (2012). Chapter six, ‘Saving Muslim women’, focuses on postcolonial feminist critiques of discourses in which the subaltern is silenced through epistemic violence (Gayatri Spivak, 1988), women of the third world are depicted in stereotypical ways as the other and oppressed by their men (Chandra Talpade Mohanty, 1988) and then become subjects of a rescue narrative (Gayatri Spivak, 1988). In chapter seven, some aspects of the analytical concept ‘femonationalism’ (Sara Farris, 2017) are used to explain the nationalist goals that are aided by deploying a rescue narrative.

I end this master’s thesis with a conclusion, in which I summarise the six main chapters of this dissertation.

2. Background

2.1. Islam in India: A history of interreligious tensions The debates surrounding triple talaq in India are greatly influenced by the tensions which exist between Hindus – part of the majority religion in India – who are influenced by Hindu nationalist thought, and the Muslim minority in India. Often seen as two separate monolithic religious communities, Indian Hindus and Muslims (and Indians who adhere to other religions) in fact all differ widely in their cultures and customs, languages, ethnicities and so forth and the clear delineation between different religious communities in India can be seen as a construction (Kłodkowski, 2017, p. 19-20). To understand the complexity of the issue today, it is necessary to have an understanding of where the different communities and the relations between them found their origin and how they evolved and were shaped throughout history. Historical context can not only give a direct precedent for future conflicts, collective memory of it also affects the relations between Muslims and Hindus and their respective political identities (Kłodkowski, 2017, p. 7). The shared history “has been and continues to be used to devise more or less radical ideologies and push specific agendas in central and regional politics” (Kłodkowski, 2017, p. 7).

2.1.1. Precolonial period: Muslims as invaders As opposed to Hinduism, Buddhism, Jainism and Sikhism – religions which all found their origin on the Indian subcontinent – Islam as a religion originated in the seventh century in the Middle East. Apart from sporadic and local contacts with Arab traders (Mistry, 2005, p. 400), the first Islamic presence in India2 can be traced back to occasional raids and plundering by Turkish Muslims in the eleventh century. These later evolved into conquests and settlements. Muslims ruled in India to a greater or lesser extent from the thirteenth century, with the Sultanate of Delhi and later the Moghul Empire, until the nineteenth century, when India came under the rule of the British crown (Kulke & Rothermund, 2004).

Historians argue that the Islamisation of India happened gradually and peacefully through settling, trade and the Sufi movement, and for example through translations and Islamic art. This means that the Muslim conquests were inspired by economic rather than religious reasons (Callewaert & Goddeeris, 2010, p. 92, 96). Later in history, Islamic rule was often defined by the cooperation of Hindus and Muslims in political, social and cultural life and Islamic society was more open and egalitarian than Hindu society (Kulke & Rothermund, 2004, p. 7, 166). However, this is in sharp contrast

2 ‘India’ refers both to the modern nation state India, when talking about the time period after 1947, and to the historical region which includes modern Pakistan and Bangladesh, when talking about a time period before 1947.

4 with the rhetoric of “Islam’s hatred of Hindus and Hinduism” (Engineer, 2004, p. 71) which is inscribed on these Muslim invasions in the seventh century in for example history textbooks, and the depiction of Muslims as “invaders who colonised the indigenous Hindu society even before the British Raj was established” (Parashar, 2010, p. 436) which is proposed by Hindutva3 groups such as RSS and BJP.

2.1.2. Colonial period: British delineation as the roots for a separate Muslim identity Most often, however, it is argued that the delineation between Indian Muslims and Hindus originated during the British colonial rule, and with it their separate identities. The British East India Company (EIC) established their Company rule in 1757, expanded and kept a firm grip on big parts of the Indian subcontinent until the Great Rebellion of 1857-1858, after which India was ruled by the British Crown for almost another century (Kulke & Rothermund, 2004). There are three important factors to be considered: ethnography, colonial legislation and colonial politics.

The British’ original stance was one of fascination for Hinduism, and in their Indological search, a new division was made between Hinduism as a majority religion and Islam as a minority religion in India (Callewaert & Goddeeris, 2010, p. 170-174). This attitude shifted to one of Western superiority in the nineteenth century, and parallel to evolutions in Europe, the focus on classification and racial diversification strengthened. This gave rise to the Indian census and extensive ethnographic studies, in which differences between Muslims and Hindus were magnified (Callewaert & Goddeeris, 2010, p. 196 & Kulke & Rothermund, 2004, p. 246).

This had its reflections on the colonial legislation, in the first place in Warren Hastings’ Code of Gentoo Laws (the foundation for the Indian Penal Code4, 1860) in which he supposed different laws for Muslims and Hindus (Callewaert & Goddeeris, 2010, p. 170-174 & Kulke & Rothermund, 2004, p. 247- 249). Throughout the decades, colonial jurists gave shape to what is called Anglo-Muhammadan law, a mix of British and Islamic legislation and jurisprudence. They did this by consulting translations of Arabic and Persian texts and some commentaries (Anderson, 1993, p. 4).

The British not only established Islam as a separate religion by its ethnographic and legal delineation. Their colonial rule also stripped the Muslim elites of their traditional status of ruling class. Detaching Islam from its political power resulted in the creation of a separate Muslim religious community (Devji, 2010, p. 111) and with it, a separate Muslim identity arose. It would become the foundation for the

3 Hindutva, literally ‘Hinduness’, is a popular Indian ideology of Hindu nationalism and fundamentalism. Rashtriya Swayamsevak Sangh (RSS) is a Hindu nationalist organisation following the Hindutva ideology. Bharatiya Janata Party (BJP) is its political wing and currently the largest party in India (see 2.1.3). 4 The Indian Penal Code is the official criminal code of India.

5 development of a separate Muslim nationalism in India in the nineteenth century (Rodriguez, 2017, p. 55).

2.1.3. Struggle for Independence: Hindu and Muslim nationalism translated into politics and the two-nation theory The Great Rebellion of 1857-1858 made for a common mistrust of and hate for the British, but it also gave rise to separate Hindu and Muslim nationalisms. On the one hand, Hindu nationalism emanated from a Hindu revival, and was ironically carried by young Hindu intellectuals who had studied at British colonial schools. In 1875 a new Hindu reform movement, Arya Samaj, was established (Callewaert & Goddeeris, 2010, p. 185, 191 & Kulke & Rothermund, 2004, p. 284). On the other hand, most Muslim nationalists were borne in the Anglo-Oriental College of Sayyid Ahmad Khan, established in the same year, but there was also influence from pan-Islamism (Bayly, 1985, p. 178). The polarisation between the two communities was partly influenced and raised by the British, who sought an ally against Hindu nationalism in the Muslim community (Kulke & Rothermund, 2004, p. 272).

The nationalistic polarisation became most clear in the political field, with the division that would exist between the Indian National Congress (INC) and the Muslim League (ML). The Indian National Congress, established in 1885 as a means for Indians to voice their concerns and suggestions for British policy, became a carrier of Indian secular nationalism, but failed in its attempts to include all Indians – also Muslims, a quarter of the Indian population at that time. (Kulke & Rothermund, 2004, p. 278) This was partly because Sayyid Ahmad Khan, the biggest representative of the Muslim community at the time, rejected the INC and its statement that it could represent everyone (Devji, 2010, p. 118). The All- India Muslim League (ML) was originally formed by elite Bengali Muslims as a pro-British organisation, after waves of protest following the splitting of Bengal by the British viceroy in 1905 and the consecutive repeal of the measure (Devji, 2010, p. 112). Hindu nationalists and Muslim nationalists worked together at some points, but more often they defended conflicting interests.

The British and Indian fight against the Ottoman Empire in World War I estranged relations between the British and the Indian Muslim community. Despite a short reconciliation of the INC and the ML and reconciliation attempts of the two communities by Mahatma Gandhi and Muhammad Ali Jinnah (by then the leading figure of the Muslim community in India and later father of modern Pakistan), riots erupted (Kulke & Rothermund, 2004, p. 292). The two competing religious communities had different standpoints regarding the Brits, and by the 1920s the two positions turned out to be incompatible (Kulke & Rothermund, 2004, p. 297).

Hindu nationalists found themselves represented by a new ideology of Hindu fundamentalism, Hindutva, which in 1925 saw itself translated in a new radical5 nationalist volunteer organisation, Rashtriya Swayamsevak Sangh (RSS). Its political wing would bring forth the Bharatiya Janata Party (BJP) in 1980, now the leading Hindu nationalist party in India (Kłodkowski, 2017, p. 16).

Finding its roots in Muslim nationalism, which had strengthened in the decades before due to political, social and economic reasons, the two-nation theory was launched in the 1930s. It became the official discourse of the Muslim League by the 1940s, which had grown from an elite party to a mass party under Jinnah. The two-nation theory was built on the belief that Hindus and the 70 million Muslims living in India formed two separate homogenous nations, because they had separate social customs, philosophies, religions and literature. Soon, the two-nation theory evolved in the demand for a separate state for the Indian Muslim community (Callewaert & Goddeeris, 2010, p. 221, 224-226 & Devji, 2010, p. 131).

The threat of the second World War made the British make India promises of independence and two separate nations. With the harsh negotiations between the ML and INC India saw a huge rise in religious polarisation and communal violence (Callewaert & Goddeeris, 2010, p. 224-226). Eventually, they reached an agreement on the two-nation theory: then India would be split in India, the nation of the Hindus, and Pakistan, the nation of the Muslims. The latter would consist of some Indian states in the northwest – West Pakistan, currently Pakistan – and some states in the northeast – East Pakistan, currently Bangladesh. This event is known as the Partition of India and was meant to be a solution for the interreligious tensions. The period leading up to and after the Independence of India in 1947, and the Partition of India and Pakistan, is however the worst period of communal violence between Hindus and Muslims in the history of India. The speed with which the measures were taken – only ten weeks to coordinate the entire Partition and no input from local leaders – only added to the violence, as will be discussed below.

2.1.4. Before and after Independence: Communal violence Not only the formation of separate identities, nationalistic polarisation and political struggles – most notably the partition of India in 1947 – left an impact on India’s Hindu-Muslim relations: the communal violence and human suffering that was for a big part influenced by these tensions also left their traces in the current religious relations.

5 The RSS and other organisations that are linked to the Hindutva-ideology are often called ‘radical’ or ‘extremist’ for engaging in militant violence and communal riots, next to participating in elections, to reach their goal of a Hindu religious nation (Parashar, 2010, p. 436).

As Goodman (2014) says:

How can we account for collective violence? Scholars of Hindu-Muslim antagonism in India have long sought to provide nuanced answers to this question, with some of the more well-known arguments emphasising the legacies of colonial categorisation, regional electoral dynamics, manipulation by political elites, and the presence of riot networks, as well as patterns of civic engagement, shifts in the social mobility of lower-class Hindus, and the effects of neoliberal economic reform. (Goodman, 2014, p. 281)

Religious conflicts were not rampant in pre-colonial times, but still happened (Bayly, 1985). The first big protest waves in India with a religious factor happened after 1905, due to the splitting and subsequent reunion of the region Bengal (Callewaert & Goddeeris, 2010, p. 208). Yet, communalism as a term denoting a negative form of nationalism is generally believed only to be applicable to religious conflicts and riots after the 1920s (Bose & Jalal, 2017, p. 142). The interreligious violence after the first World War persisted in the following decades, being fuelled by both religious communities. There were for example Jinnah’s ‘Islam in danger’ campaign in the 1930s and emerging Hindu nationalist groups such as Arya Samaj which targeted Muslims, for example by their campaigns against eating beef.

The interreligious violence reached a peak in the months after the Partition of India in 1947. Former Punjab and Bengal were two regions with a highly mixed population and religious majorities in certain districts, and were thus both split in two parts due to the Partition – one part India and one part Pakistan. These two regions saw the most violence. Hindus in the Indian parts drove their neighbour Muslims out of their homes towards the newly formed West and East Pakistan, and Muslims in the Pakistani parts did the same to their Hindu neighbours, driving them towards India, in a form of ethnic cleansing. Bharadwaj, Khwaja and Mian (2008, p. 42) have calculated that in the four years after the partition, 9.6 million refugees left India, yet only 7.2 million immigrants were counted in East and West Pakistan combined. In the same way, 8.3 million people fled Pakistan while only 7.3 million people immigrated in India. The 3.7 million missing people can largely be ascribed to the carnage after the Partition. 15.000 people were killed in the riots in August 1947 in Bengal alone. After a few months the violence came to a halt, but the communal conflict kept smouldering, with a common mistrust and even hate between Indian Muslims and Hindus (Callewaert & Goddeeris, 2010, p. 237-241 & Kulke & Rothermund, 2004, p. 324 ).

Communal violence flared up again sporadically in the 1960s and 1980s and border conflicts between India and Pakistan keep happening up to the present day (Callewaert & Goddeeris, 2010, p. 243). The worst communal violence since 1947 has been the 2002 Gujarat riots, the escalation of a lingering conflict over Ayodhya, a city claimed to have religious importance for both the Hindu and Muslim community. In 1992, a Hindu nationalist political rally resulted in the storming and destruction of the

Babri Masjid, a mosque which was allegedly built over a Hindu temple on the birthplace of the Hindu god Ram. The specificity and magnitude of the role of the ruling party at the time, Bharatiya Janata Party (BJP), in these events is still debated (Kłodkowski, 2017, p. 10).

2.1.5. Current situation In the decade before, BJP had grown from a small opposition party to a sudden force to reckon with after and partly due to the Shah Bano case in 1985 (see 3.2.2) (Reddy, 2009, p. 419). BJP won the elections for the Lok Sabha (lower house of the parliament) in 1996, but had to give the reigns back to the Indian National Congress in 2004. From 2014 on, BJP has been the ruling party in parliament again, led by prime minister Narendra Modi.

India has no national Muslim party, even though Muslims make up 14.23 percent of the Indian population according to the 2011 census6 (Religion census 2011, n.d.). This seems a small number compared to the 80 percent Hindus in the country, yet Islam is the largest minority religion in India. The 172 million Muslims (out of the 1.2 billion population) make up one third of the total Muslim population in the world and make India the third largest Muslim country in the world, and by far the largest when Pakistan and Bangladesh are taken into account (Callewaert & Goddeeris, 2010, p. 11, 85). Yet apart from being a minority religion, there is no coherence in linguistic, cultural or ethnic terms, explaining the lack of an all-India Muslim party and presence of regional Muslim parties (Kłodkowski, 2017, p. 19, 20).

6 The next Indian census will be held in 2021. The census assesses religion by self-identification.

2.2 Islam and gender in India Indian Muslim women fall under the same religious and gender category, but are not to be considered as one homogenous group. As discussed above, Indian Muslims do not form any coherent minority and differ in their cultures and customs, languages and ethnicities, class, educational background etc (Kłodkowski, 2017, p. 19, 20). A Muslim from a certain state in India will often have more in common with his neighbouring Hindus than with a Muslim from another part of India (Kłodkowski, 2017, p. 15). The same can be said for Muslim women. The similarities which exist between them are mostly common experiences and structural differences which can be led back to discriminations based upon their religion and gender, rather than a homogeneity inherent to ‘Muslim women’.

It is difficult to discern the role of Muslim women in historical situations, as they are most often not included in historical accounts. This may be because they never had a role in what are considered important moments in Indian history, but more probably they have been erased from the historical narrative, which focuses on higher-class men. This trend is not reserved for history either: (Muslim) women are excluded from or depicted in a rather specific way in socio-cultural and political discourses, and their role in social reform movements is downplayed (Rahmath, Raihanah & Hashim, 2018).

Jain (2019) sketches a rather negative account of the current situation of Indian Muslim women:

In India the circumstances of Muslim women are very unwelcoming. Women have been communally, economically, physically, psychologically and sexually demoralized sometimes in the name of religion and some time by the civilization and traditions [sic]. (Jain, 2019, p. 62)

In explaining this she refers to the earlier mentioned invisibility of Muslim women in the Indian society. For this, Jain points to the Muslim Personal Law (see 3.1) as a cause for this invisibility, as the MPL can be referenced as the sole reason for Muslim women’s inferior status, in disregard of other causes. Those other causes can be found in the Muslim community’s unwillingness to accept change for Muslim women’s status (Jain, 2019, p. 62). This, in itself, is a specific and negative depiction of Muslim women’s status, as they are reduced to passive agents whose empowerment is dependent on their community’s willingness to bring change (Drabu, 2018, p. 6).

In general, Indian Muslims have a low socio-economic status compared to other religious communities in India, and are discriminated against socially and economically (Kłodkowski, 2017, p. 19). This explains the lower status of Muslim women in a more objective way than the discourse that depicts them as passive victims of religious patriarchy (Sur, 2014, p. 44).

This socio-economic inferiority has several aspects, such as lack of education, poverty or lack of employment opportunities. (Sur, 2014, p. 44). The labour situation of Muslims in India is as follows: on

10 average Indian Muslims have lower paying jobs and a higher unemployment rate than workers from other religious communities. Most Muslims live in rural areas and Muslims have historically for a large share been farmers, artisans and workers (Mistry, 2005, p. 408-409). This, in combination with the lack of education – especially for Muslim women – and socio-cultural constraints for those women to work, makes most Muslim women financially dependent on their husbands (Mistry, 2005, p. 413 & Jain, 2019, p. 62).

Another factor that sets Muslim women apart from Indian women of other religious communities, is the political policies and conditions that give the Muslim community a separate status. The existence of the Muslim Personal Law (see 3.1) makes the Muslim community a self-legislating and self-governing one, and give Muslim women different rights and legislation for family matters than for example Hindu women (Sur, 2015, p. 9). A preferential treatment of the Muslim conservative elite has a negative result for the rights of Muslim women (Harel-Shalev, 2019, p. 2124). Political discourse adds to this othering of Indian Muslim women (Sur, 2015, p. 12).

2.3. Triple talaq as a divorce principle in Islamic law Diverting again from the Indian context, this part will be devoted to triple talaq as a divorce principle in Islamic law, also known as sharia7. In order to discuss the various divorce principles which are present in Islamic law, it is necessary to first have an understanding of what Islamic law is and entails. Next, we will look at how divorce is looked upon in the Quran and Hadith, and lay down the different kinds of divorce principles in Islamic law. Of this, the different types of talaq will briefly be clarified before going to a discussion on triple talaq in Islamic law, both before and after the reforms in the 20th century.

2.3.1. Islamic law Islamic law or the sharia, as Tucker (2008, p. 11) describes, is held to be divine law, captured in verses in the Quran and Hadith, as they originated in the ninth and tenth centuries. However, throughout Islamic history there has not been a fixed legal code called ‘The Islamic Law’ or ‘The Sharia’, and it is better to speak of it as the amalgamation of Islamic legal traditions and the specific interpretations made by intellectuals of different Islamic schools and jurists, summarised in fiqh or Islamic jurisprudence. (Ali, 2016, p. 20 & Tucker, 2008, p. 11-15)

The plurality and differences in Islamic Law are to be ascribed firstly to the lack of consensus over the authenticity and legal relevance of some parts of the Sunna as captured in the Hadith, and secondly to the lack of consensus among Muslim intellectuals over the interpretation of those words in the Quran and Hadith. From very early on there have been divergences in Islamic juristic opinions, influenced by local contexts, and especially in Sunni Islam these were never really settled upon because of lack of hierarchical religious authority. (Ali, 2016, p. 31 & Tucker, 2008, p. 11-15)

Instead, the sharia has been interpreted and reinterpreted in different ways by different Islamic branches and their legal schools, and each of these interpretations has been summarised in juridical textbooks or commentaries, called fiqh. Yet there has been a drive for consistency in the interpretation of Islamic law, both in and in between different Islamic branches, and the sharia has also in many instances been institutionalised to be implemented by Islamic courts. So, the Islamic law has had a tradition of constantly being interpreted and applied by judges for individual cases. In addition to these primary sources of the Quran and Hadith, judges also resorted to ijma or consensus among jurists on a certain topic, qiyas or deductive analogy, and a whole range of other principles. In questions about

7 The equation of ‘sharia’ with ‘Islamic law’ is a modern understanding of the concept. In using sharia in this way, I do not intend to limit the concept or disregard its broader overarching meaning of ‘the ordained way’ or guidelines for living Islamic life which transcend Islamic legal codes. For a discussion on this topic, see Ali (2016).

12 concrete legal situations, some jurists could and can also pronounce a fatwa to decide upon them. (Ali, 2016, p. 24-25 & Tucker, 2008, p. 11-15, 19-20)

2.3.2. Divorce principles in Islamic law In the Quran and Hadith, divorce is mentioned multiple times as a measure which may not be desirable, but was still permitted for husbands or wives when their marriage ceased to bring joy and mutual support. Divorce does not bring stigma, yet it is advised not to take it lightly and reconcile if possible. As said in the Hadith and quoted by Ali (2016, p. 252): “Of all things permitted in the eyes of Allah, divorce is the most abhorrent” and thus seen as a last resort. (Ali, 2016, p. 252 & Tucker, 2008, p. 84- 85)

The juristic rules which were laid out based upon these verses in the Quran and Hadith discern between different types of divorce, of which the main three divorce principles are talaq, tafriq and khul. Tafriq is the annulment of a defective marriage on the request of a woman or her family under certain circumstances. Possible grounds for divorce could be impotence, illness or absence of her husband. Khul is also a divorce requested by a wife, but one in which she returned compensation to her husband. It is considered a mutual divorce. Both divorce practices tafriq and khul come with a number of restrictions and contestations, but those will not be discussed here, as our focus is on talaq. (Tucker, 2008, p. 86, 92-96)

Talaq, which is the Arabic word for repudiation or divorce, is the standard divorce principle in the sharia to be used by Muslim men. Divorce through talaq is unilateral and practiced through the repeated pronunciation of the word talaq by a husband in between his wife’s menstrual periods, without interference of a court. There is no need to cite any cause. It is based upon pre-Quranic divorce practices, with this difference that in Islamic law there is a fixed amount of utterances before a divorce becomes irrevocable, and that there are fixed rules (which differ in different schools) about maintenance and the like after divorce. Different types of talaq can be discerned, of which triple talaq is considered the most reprehensible. (Tucker, 2008, p. 86, 112)

In Islamic law there are two types of talaq which are considered talaq al-sunnah or in accordance with the Prophet Muhammad’s teachings. In the most preferred one, a husband pronounces talaq once to his wife when she is in between menstrual periods. If the couple then does not have any sexual intercourse for the next three menstrual cycles, they are divorced. Any time during those three cycles a husband can revoke his pronouncement, and remarriage is also possible. This type of talaq is called talaq al-ahsan. The second talaq al-sunnah is a variation upon it, namely talaq al-hasan. This type of talaq is irrevocable. To make the divorce effective, a husband pronounces talaq thrice, during three consecutive menstrual cycles of his wife. Afterwards there is a waiting period of three months (idda,

13 to rule out the possibility of pregnancy) before the woman can remarry another man. (Tucker, 2008, p. 86-87)

In addition to the two types of talaq al-sunnah, which is talaq in accordance with the teachings of the Prophet Muhammad, there is also one type which is called an innovative (and undesirable) talaq or talaq al-bidah. This type of talaq was ruled valid by the second Sunni caliph Umar, yet denounced both by him and the Prophet Muhammad, and is not recognised by Shia Muslims. Talaq al-bidah is irrevocable and instantaneous. Triple talaq, in which the three pronouncements of talaq happen at once, falls under this category and is often equated with it. It will be discussed in more detail in the next section. (Ali, 2016, 253 & Tucker, 2008, p. 87-88)

In addition to those three main forms of talaq, two other forms can be discerned. Firstly, a husband is in Islamic law also permitted perform a divorce by oath or a suspended divorce. He then makes certain conditions upon marriage, and holds the right to divorce his wife when he or she deviates from them. These conditions can be about his wife’s behaviour, financial incidences and so forth. Secondly, a husband can also delegate his power to divorce to his wife, which is called tafwid. (Tucker, 2008, p. 90- 92)

It is important to notice that these types of talaq and their validity have from early on been questioned by Islamic jurists. Arguments range from the spiritual and maternal benefits of marriage, the legality of divorce and the Prophet’s accepting reaction upon observing a triple talaq happening. (Tucker, 2008, p. 87)

2.3.3. Triple talaq in Islamic law (before the 20th century) Triple talaq is a form of talaq in which the three pronouncements of talaq happen at once. When a husband utters talaq thrice to his wife on a moment when she is in between her menstrual periods, the couple is then immediately divorced. (Tucker, 2008, p. 87-88)

Triple talaq is irrevocable, in the sense that a man cannot remarry his divorced wife after uttering talaq thrice, unless in the following case: she married another man after the required waiting period of three months had passed, consummated her marriage with that man, divorced him and passed through another three month waiting period. This is called nikah halala. (Jain, 2019, p. 61 & Tucker, 2008, p. 88)

As explained before, triple talaq is deemed the most reprehensible form of talaq or divorce in Islamic law, but still valid in its core form. Apart from that, different schools have different interpretations over the validity of an oral pronouncement of talaq al-bidah when uttered unintentionally, while for example under influence of alcohol. (Tucker, 2008, p. 87-90)

There is also no consensus among jurists of different Islamic schools about the amount of material support (housing and/or maintenance) a Muslim woman receives during the idda, the statutory waiting period of three months in which she is divorced but not unattached from her ex-husband. This is because different schools adhere to different versions of the Hadith. (Tucker, 2008, 102)

Thirdly, the matter of custody of children after divorce is also not settled upon between different Islamic schools. Most often though, the schools ruled that a woman had only temporary custody over young children. As soon as children had reached a certain age, which differed from school to school, they fell under the custody of their father. (Tucker, 2008, p. 29)

2.3.4. Triple talaq in Islamic law (reform) The (discussions about) reforms of Islamic law which started at the end of the nineteenth and beginning of the twentieth century, were influenced by the Western attention for Islam and the sharia. Both orientalist scholars and colonial administrators eyed Islamic divorce practices and the (gender) injustices in them. The voices of Muslim women activists added to these. This thrusted Islamic scholars in discussions of bringing the sharia closer to Islam’s original stance on equality between men and women, and to adapt personal status codes of Muslim jurisdictions, but also brought them a defensive stance against Western accusations of Islamic loose morality and male privilege in marriage and divorce matters. In colonial India too these conversations happened, for example in articles in local magazines, questioning practices of divorce for trivial reasons. (Ali, 2016, p. 253 & Tucker, 2008, p. 111-112, 114-15)

In addition to that, colonial administrations took over from Muslim jurists as the authority in law making. Colonial laws became a hybrid of Islamic law, local customs and colonial administrative and state-based legal systems. Rules about divorce slowly became part of personal status laws and codes, instead being the responsibility of Islamic jurists. (Ali, 2016, p. 29-30)

From the twentieth century on, nation states have played an instrumental role in institutionalising the sharia. Legal reform movements resulted in the so-called modern reforms of Islamic law. This implemented the expansion, standardisation and codification of the sharia in different nation states’ legal codes. These legal codes addressed both the ongoing discussions on reform of Islamic law and the nation states’ need to bring social change by gaining new state control over family institutions and gender relations. This resulted in a focus on regulation and restriction of talaq, rather than its prohibition, and in bringing talaq under the jurisdiction of courts in many nation states in the Islamic world. (Tucker, 2008, p. 15, 19-20, 115-116)

In many Muslim countries such as Pakistan, the practice of triple talaq has later on been rendered invalid or only valid as a single talaq in their personal status codes, thus only permitting talaq al-sunnah as an Islamic divorce principle. (Ali, 2016, p. 253-254)

In India too British colonial judges have used the sharia as a basis for drawing up Muslim personal law. After the Indian independence, the Muslim Personal law was ordained in The Muslim Personal Law (Shariat) Application Act of 1937. India had been lagging behind in the prohibition of triple talaq, such as has been introduced in many Muslim countries like Bangladesh, Pakistan, Turkey, Malaysia, Indonesia and Egypt, until recently. In the next chapter, an in depth discussion of Islamic law and triple talaq in India will be given. (Ahmed, 2001, p. 618-619 & Shariat Application Act, 1937)

3. Triple talaq in India: Politically and juridically

3.1. The Indian constitution and Muslim Personal Law On matters of marriage and divorce, the Indian law varies according to religious group, and official registration of either marriage or divorce is not compulsory. This makes for a wide array of legal divorce practices, which can be officiated by a broad range of non-formal bodies and courts and are thus in many instances not state-controlled. However, an alternative non-religious option for marriage and divorce exists and a few Acts of the Indian government govern some practices which were deemed unequal in the religious laws (Dommaraju, 2016, p. 198-200, 202). For Islamic divorce in India, additional to The Muslim Personal Law (Shariat) Application Act (1937), these are The Dissolution of Muslim Marriages Act (1939), the Muslim Women (Protection of Rights on Divorce) Act (1986) and The Muslim Women (Protection of Rights on Marriage) Act (2019).

In this part we will give a short introduction to the Indian constitution and the different personal laws which regulate divorce practices for their respective religious groups. Then the four Acts that apply to matters of Muslim marriage and divorce in Indian law will be discussed in more detail.

3.1.1. The Indian constitution The Indian constitution was drafted by the Constituent Assembly of India, with permission from the British. The Indian Constitution was eventually enacted in 1949 and became effective in 1950. Since the 1970s the preamble reads that the Republic of India is a secular nation. However, it is also one that protects the freedom of religious belief and practice of all Indian citizens, as long as those beliefs or practices are not in conflict with public order, morality and health or the constitution in general. Maintaining individual religious freedom is an important facet of the Indian constitution (Reddy, 2009, p. 408-411).

India has no Uniform Civil Code. Instead, several personal laws dictate rules for marriage, divorce and other family matters for distinct religious groups. Article 44 of the Indian Constitution determines a Uniform Civil Code as a directive principle of the central government, but seventy years after the enactment of the Constitution this is still not the case. Some steps have been made, such as the implementation of the Special Marriage Act (1954) as a parallel civil code for matters on marriage and divorce. Yet there are so many tensions regarding a Uniform Civil Code in India that the introduction of it would be no easy task (Ghosh, 2009, p. 2 & Reddy, 2009, p. 405). These tensions are discussed in more detail in part 3.2.

3.1.2. Divorce in Indian law In India, each major religious community has its own family laws or personal/civil codes to regulate matters of marriage, divorce, inheritance, maintenance and the like. These are based upon and extend each group’s religious scriptures and customs, and most of them are directly descending from the British colonial law and did not get adapted after India’s independence. Those codes are called personal laws. Registration for marriage and divorce under those personal laws is not compulsory in India (Dommaraju, 2016, p. 198, 202).

In concrete terms this means that Hindu, Buddhist, Jain and Sikh marriage and divorce matters are all codified in the Hindu Marriage Act (1955), part of the Hindu Code. For Christians, there is The Indian Christian Marriage Act (1872); matters of Christian divorce are regulated by The Indian Divorce Act (1869). For Muslims there is The Muslim Personal Law (Shariat) Application Act (1937), which appoints Islamic law as the decisive ground for matters of marriage and divorce, inheritance, maintenance, and the like. The Shariat Application Act is supplemented by the Dissolution of Muslim Marriages Act (1939), the Muslim Women (Protection of Rights on Divorce) Act (1986) and the Muslim Women (Protection of Rights on Marriage) Act (2019). All four Acts will be discussed in the next part. The Special Marriage Act (1954) regulates civil marriage and divorce between members of two different (or no) religious groups, and is an alternative option for marriage and divorce (of which marriage was registered under the same Act) for intrareligious marriages of all religious groups. (Dommaraju, 2016, p. 217)

3.1.3. Islamic divorce in Indian law The Muslim Personal Law (Shariat) Application Act of 1937 was an achievement of Mohammad Ali Jinnah and the Muslim League and a milestone in their separatist Muslim politics. (Ghosh, 2009, p. 3)

The Muslim Personal Law is based on the Islamic Law or sharia. However, the sharia remains largely uncodified in India and thus the interpretation of it can vary. Interpretations differ from Islamic school to Islamic school, but the different forms of Islamic divorce which are deemed valid in India have all been discussed in the previous chapter. These are tafriq, khul and until 2019 all three forms of talaq, including the most reprehensible form in Islamic law, triple talaq. Triple talaq used to be valid both in oral and in written form, including in electronic written form (such as over WhatsApp, SMS or email) until the Muslim Women (Protection of Rights on Marriage) Act of 2019. (Dommaraju, 2016, p. 198- 199)

One major difference that the Muslim Personal Law (Shariat) Application Act of 1937 made from the sharia is that a marriage is naturally dissolved if any of the partners denounces their Islamic religion. This loophole led to an upsurge in Muslim women leaving Islam to escape certain marriages, such as

18 abusive ones. This resulted in the Dissolution of Muslim Marriages Act of 1939, which grants other reasons for a legal divorce for Indian Muslim women. As summarised by Dommaraju (2016, p. 199), “these include apostasy, failure to provide maintenance, unknown whereabouts, cruelty, failure to perform marital obligation without reasonable cause, impotence, insanity, severe disease, or any grounds recognised by Muslim law” (Dommaraju, 2016, p. 199 & Ghosh, 2009, p. 4).

In 1986, in the wake of the Shah Bano case (see part 3.2.4) the Muslim Women (Protection of Rights on Divorce) Act was passed in India. This Act dictates and thus codifies the matters – provision and maintenance – a Muslim man has to provide his ex-wife with after divorce.

The Muslim Women (Protection of Rights on Marriage) Act of 2019 is the latest addition to and codification of the Muslim Personal Law. The most controversial part of this Act is the second chapter, in which declarations of talaq-e-biddat (talaq al-bidah or any form of instantaneous and irrevocable Islamic divorce), in spoken, written or electronic form, are deemed void and illegal. The punishment for Muslim men who still pronounce a triple talaq is a fine and imprisonment up to three years. The Act also provides extra protection for women upon whom talaq was pronounced (adding to the provisions in the Protection of Rights on Divorce Act of 1986) by codifying the subsistence allowance and custody of minor children those women have to receive.

3.2. Muslim Personal law and triple talaq: Key juridical changes and tensions

3.2.1. The Indian Constitution and a Uniform Civil Code “Should India, as a democratic and secular state, enact a uniform civil code, or should it continue allowing ethnic and religious minorities to retain their personal and customary laws?” (Ghosh, 2009, p. 2)

This question has plagued Indian policy makers and the public debate since the Indian independence movement and continues to bring tensions and debates in today’s India. (Ghosh, 2009, p. 2)

As explained above, India is described as a secular nation in the Indian constitution, although the word itself was an addition in the 1970s. In the Indian context, secularism stands for respect and tolerance of all religions, and individual religious freedom. The different interpretations of the concept – a uniform law or individual/group choice without state interference – only add to the debate about the Uniform Civil Code in India. (Reddy, 2009, p. 405, 410, 414)

It was to maintain historical continuity and political accord in a time with rising Hindu-Muslim tensions and political divide, that the Constituent Assembly of India chose not to implement a Universal Civil Code. Instead, multiple (existing) personal laws would regulate personal matters for different religious groups. A Uniform Civil Code was however added as a Directive Principle in the Indian Constitution. (Ghosh, 2009, p. 2-3 & Reddy, 2009, p. 405, 410)

Now, seventy years later, there is still no Universal Civil Code in India. Reforms have led to a codified Hindu Code, but a reform of the Muslim Personal Law – which is up until now not codified but refers to the Islamic Law – remains a matter of heated debate. (Reddy, 2009, p. 405, 410)

The opinions and arguments for or against a uniform civil code are manifold. As Reddy (2009, p. 406) summarises:

There are those who say a Uniform Civil Code is a necessity in a secular nation, to ensure equal treatment under the law for all citizens. There are those - many of them members of minority religions - who fear the motives of their opponents in the majority and believe that their traditions deserve protection in a secular nation that guarantees them religious freedom. There are civil courts that must rule on what practices are religious and what practices are secular, with the consequences of those decisions sometimes extending far beyond the parties in the courtrooms. And there are politicians ready to take advantage of the disagreement.

These arguments have to be seen against a background of communal tensions and incidences, and the current political situation in India. (Ghosh, 2009, p. 8)

3.2.2. Shah Bano Case, 1985 The Shah Bano Case, officially ‘Mohammed Ahmed Khan v. Shah Bano Begum, (1985) 3 S.C.R. 844 (India)’ is the most famous and often cited case that expresses these conflicting views regarding a

Uniform Civil Code in India, in combination with discussions about gender. Shah Bano is the name of a Muslim woman, who after her divorce refused to settle for the maintenance as prescribed by the Islamic law, and filed a court case against her ex-husband, referring to the Criminal Code Procedure of Indian legislation which would grant her a lifelong maintenance. The case went to the Indian Supreme Court, which ruled in Shah Bano’s favour. The Supreme court’s indication that the ruling was in accordance with Islamic law – which was the interpretation of a secular court of religious law – angered more conservative Muslims, especially because it set a precedent for later court rulings in which secular courts interpreted the sharia. (Reddy, 2009, p. 417 & Sur, 2015, p. 12)

3.2.3. Muslim Women (Protection of Rights on Divorce) Act, 1986 The situation led to protests and even worsened when the Muslim Women (Protection of Rights on Divorce) Act of 1986 was passed, in the same line with the reforms and codification of Hindu personal law in the form of the Hindu Code in the 1950s. Even though the Act reaffirmed the rules of Islamic law and nullified the Supreme Court decision in the Shah Bano case, it received negative response due to the then current political climate and general tensions between Muslims and Hindus, fuelled by the Shah Bano case. Muslims saw these steps towards a Uniform Civil Code as a threat to their religious independence and identity. This eventually led to an adjustment of the Criminal Code, which meant an exclusion of Muslims from the section regarding maintenance. (Ghosh, 2009, p. 6-8 & Reddy, 2009, p. 413, 418-419 & Tucker, 2008, p. 127)

As Reddy (2009, p. 406) summarised, there are politicians who are more than ready to take advantage of these tensions between Hindus and Muslims, and even fuel them. The Hindu nationalist Bharatiya Janata Party (BJP) is a prime example of this, as they rose to power after and partly due to the Shah Bano case in the 1980s. This also resulted in Indian Muslims to oppose a Uniform Civil Code even more, because they feared Hindus to legislate on Islam and reform their family laws, as opposed to Muslim religious leaders and judges. (Reddy, 2009, p. 419, 421)

3.2.4. Shayara Bano Case, 2017 The Shayara Bano Case, officially Shayara Bano vs Union of India & Others, is a court case which shifted the attention from the Muslim Personal Law in general to triple talaq more specifically. The court case and its aftermath show a culmination of the political and judicial tensions about the Muslim Personal Law and arguments about the validity of triple talaq in the sharia, combined with arguments about human rights and gender equality. The latter is exemplified by the several Muslim women right bodies who petitioned to the court in support of Shayara Bano, and had been fighting for the abolishment of triple talaq since 2005, such as Bebaak Collective and Bharatiya Muslim Mahila Andolan. (Sur, 2018, p. 7, 9)

Shayara Bano is a Muslim woman whose husband of fifteen years pronounced a triple talaq on her. In response to this she filed a case at the Indian Supreme Court in 2016, arguing that triple talaq, polygamy and nikah halala – the practice when a divorced woman has to marry and divorce another husband before she can remarry her first one (see 2.3.2) – as dictated by the Islamic Law are unconstitutional. In this she referred to the articles of the Constitution of India about equality, discrimination, liberty and freedom of religion. (Jain, 2019, p. 61 & The Constitution of India 1949, 1950)

In this case the Supreme Court, existing of five judges of different religions, only focussed on triple talaq. On the 22nd of August 2017, they made the landmark judgement that the practice of triple talaq, as allowed by the Islamic law, is unconstitutional, as it is in violation with Article 14 of the Indian constitution. (Singh Sehgal, 2019 & Sur, 2018, p. 5)

That Article states the following:

“Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” (The Constitution of India 1949, 1950)

3.2.6. The Muslim Women (Protection of Rights on Marriage) Act, 2019 Following this judgement, the Indian Parliament drafted the Muslim Women (Protection of Rights on Marriage) Bill, arguing that the Shayara Bano judgement had not lessened the amount of triple talaq’s in the country (Mandal, 2018). The Bill which was passed in the Lok Sabha (Lower House of the Indian Parliament) in 2017. This bill not only made triple talaq void, it also made the pronunciation of it punishable (Abbas, 2019, p. 121).

The statement of objects and reasons attached to the bill, signed by the Law and Justice Minister Ravi Shankar Prasad, lays a heavy focus on the dignity of women and gender equality. It states that “[t]he legislation would help in ensuring the larger Constitutional goals of gender justice and equality of married Muslim women and help subserve their fundamental rights of non-discrimination and empowerment” (The Muslim Women (Protection of Rights on Marriage) Bill, 2017).

For a long time the Muslim Women (Protection of Rights on Marriage) Bill was stuck, waiting for approval of the Rajya Sabha (Upper House of the Indian Parliament). In July 2019 the bill eventually was passed as the Muslim Women (Protection of Rights on Marriage) Act of 2019. (Abbas, 2019, p. 121)

As discussed before, the Act’s declaration of talaq to be void and illegal is the most controversial part. In this part any pronouncement of triple talaq, either in spoken, written or electronic form, is void and

22 illegal and accounts for a punishment of imprisonment up to three years, and possibly a fine. The Act also gives protection of the rights of married Muslim women, namely subsistence allowance and custody of her children for a woman upon whom talaq is pronounced by her husband, even though that pronouncement is not valid. The offence of triple talaq under this Act is cognisable, compoundable and bailable. (The Muslim Women (Protection of Rights on Marriage) Act, 2019)

In the next chapter the controversy around the Shayara Bano case, the Muslim Women (Protection of Rights on Marriage) Bill and Act will be discussed in more detail.

4. Triple talaq in India: Arguments in the public debate

In order to analyse the public debate about triple talaq in India by means of a feminist theoretical framework, as will be done in the second part of this dissertation, it is appropriate to first map out the several (themes of) arguments which existed in India. These arguments are divided in two parts: those already existing before the Muslim Women (Protection of Rights on Marriage) Bill (2017), which is an important turning point in the debates, and those arguments which arose only after the proposal of the Bill and subsequent enactment of the Act.

For this, we rely on discourse analysis done by other authors. These analysis found by literature study were organised in a comprehensive way in central themes and supplemented with examples encountered in further research about the topic.

4.1. Before the Muslim Women (Protection of Rights on Marriage) Bill, 2017 The arguments in favour of and against triple talaq in India before 2017 can roughly be divided in four themes. The first one focuses on Islamic scholars, who formulate different answers to the questions ‘is triple talaq Islamic’ and ‘is triple talaq valid under Islamic law’. The second and third themes focus on the Indian context, and are defined by the questions ‘who can interpret Islamic law and/or Muslim Personal Law’ and ‘to what extent is Islamic law authoritative if it goes against constitutional and human rights of (gender) equality’. The fourth theme in the arguments contains references to other nation states which already banned triple talaq.

4.1.1 Islamic scholars: Is triple talaq Islamic? Is triple talaq valid under Islamic law? As explained in chapter two, the Islamic law is a culmination of what is written in the Quran, the Hadith and the various interpretations of these verses by Islamic scholars of different schools, summarised in Islamic jurisprudence of fiqh (Tucker, 2008, p. 11-15). In making rulings or agreements, Islamic scholars and judges follow a hierarchy of sources, namely firstly the Quran and Hadith, and secondly the fatwas and juristic techniques such as ijma (consensus) and qiyas (deductive analogy) (Ali, 2016, p. 24-25). Mentions of triple talaq in Islamic law will be discussed in this hierarchical order.

The fragments in the Quran regarding divorce are not clear on the use of talaq al-bidah or triple talaq. Those verses talk for example about the idda or waiting period after a divorce found place [2:228, 2:232], rules about reconciliation and remarriages [2:228, 2:229, 2:230], and the giving back of gifts after divorce [2:229], which are all rules for when a divorce has taken place. There is no direct clarification if the three pronouncements of talaq can happen at once or not, either by stating it literally (‘I divorce you thrice’) or by repeating ‘talaq’ thrice, but Islamic jurists have tried to analyse the verses

24 in different ways and often believe to find indirect references to triple talaq in them. (Ali, 2016, p. 252 & Munir, 2013, p. 34)

In the Hadith one can find direct references to triple talaq, both in favour of and against (the validity of) the practice (Munir, 2013, p. 34-35). It was the second caliph Umar Ibn Al-Khattab who ruled that a pronouncement of triple talaq is both valid and irrevocable (Ali, 2016, p. 253), as narrated in the following Hadith:

The divorce in the period of the Messenger of Allah (PBUH), Abū Bakr and in the first two years of the caliphate of ʿUmar, if pronounced thrice at once was counted as one, but ʿUmar gave it effect against them. (Munir, 2013, p. 38)

These and other verses of the Hadith by Ibn Abbas are however contested, both their content and narrators, and not universally accepted (Munir, 2013, p. 40-47).

Triple talaq is considered the most reprehensible form of Islamic divorce, immediate and irrevocable, and its position in Islam is contested. One verse of the Quran which can be interpreted as to be talking about triple talaq, goes: “and he who transgresses the bounds set by God does indeed sin against himself” [65:1] (Munir, 2013, p. 34). This verse, and other verses – for example those instructing reconciliation between husband and wife [4:35] – make that triple talaq is often seen as un-Islamic. As Tucker (2008, p. 126) cites, “[o]ne was to argue that triple ṭalāq is, in fact, an un-Islamic practice, a holdover from pre-Islamic times”.

As Munir (2013, p. 32) explains, on the basis of what is discussed above, most Islamic jurists consider triple talaq not permissible and prohibited. The biggest branches of Shia Islam, Ithna Ashari and Fatimid, only recognise talaq al-sunnah – the accepted forms of talaq – and not triple talaq (Ali, 2016, p. 253). In most branches of Sunni Islam however, if a pronouncement of triple talaq happens, the scholars consider it valid, binding and effective, even though the practice is heavily frowned upon. They decide this on basis of the Quran, Hadith, fatwas, the general consensus among Islamic scholars (ijma) and the analogy (qiyas) that divorce is a husband’s right (Munir, 2013, p. 32, 37).

4.1.2. India: Who can interpret Islamic law and/or Muslim Personal Law? As explained in the previous chapter, Muslim divorce practices such as triple talaq are regulated in India by the Islamic law or sharia, as established by the Muslim Personal Law (Shariat) Application Act (1937). This Act states that:

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females […], marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties,

25 and wakfs […] the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). (Muslim Personal Law (Shariat) Application Act, 1937)

In the previous part we discussed how there is a general consensus among Sunni scholars and jurists that triple talaq is a reprehensible form of divorce, but that a pronouncement of triple talaq is still deemed valid in when it happens. As most Muslims in India are Sunni (mostly of the Hanafi school) who follow the interpretations of the sharia of Sunni schools and scholars, triple talaq is in India generally deemed valid under Islamic law, and so also under the Muslim Personal Law (Ahmed, 2001, p. 618).

However, not only Islamic jurists are able to formulate their interpretations of these primary religious texts. Other Muslim persons and groups have bypassed those scholars’ statements and used references to verses in the Quran to state that triple talaq is un-Islamic. They use these arguments in combination with other arguments like gender equality to support their position in the debates around the validity of triple talaq. Zakia Soman, the co-founder of Muslim women rights group BMMA (see 4.1.3), has for example spoken out about how the Quran does not mention triple talaq, and speaks about divorce as something very bad, which, if it happens, has to be just and fair (Khan, 2017). Ahmed (2001, p. 618) states that the “so called” Islamic law “is beset with so many infirmities and inaccuracies that at times it is totally at variance with the letter and spirit of the true Islamic law as contained in the Quran and the sunnah”. He blames this on historical continuity, the inaccuracies having crept in by colonial judges who had to reference the sharia using translations of Hanafi Sunni law and commentaries of the fiqh, because the original Arabic and Persian texts were unreadable to them. At another point, Ahmed also challenges the idea that accepted interpretations of the Quran all happened in two centuries time, and that “the gates of interpretation were closed” (Ahmed, 2001, p. 618 & Mandal, 2018).

This brings us to the question it often boils down to in discussions about the Muslim Personal Law: who can interpret Islamic law and/or Muslim Personal law? Since 1972, the All India Muslim Personal Law Board (AIMPLB) has been safeguarding and keeping watch over the Muslim Personal Law and its implementation in India. As written in their aims and objectives (Aims & Objectives, n.d.), AIMPLB strives for “the annulment of all such laws, passed by or on the anvil in any State Legislature or Parliament, and such judgements by courts of Law which may directly or indirectly amount to interference in or run parallel to the Muslim Personal Law or, in the alternative, [sees] that the Muslims are exempted from the ambit of such legislation”. The AIMPLB thus also follows most Islamic jurists in stating that triple talaq is morally wrong but lawfully valid, and defends this validity from interference by non-Muslims (Khan, 2017). We will discuss interference by judgements first, and interference by laws second.

The question ‘who can interpret Islamic law and/or Muslim Personal law’ is not the same as ‘who can apply Islamic law and/or Muslim Personal law’. As mentioned above, judges from colonial courts not only applied, but also interpreted Islamic law (Ahmed, 2001, p. 618). In current-day India, official registration of (Muslim) divorce is not compulsory (Dommaraju, 2016, p. 202). However, Indians can still approach a whole range of courts and non-formal bodies in cases of (disputes about) divorce. The AIMPLB for example has a Muslim dispute resolution forum called darul qazah. However, regular or family courts are chaired by civil judges, who do not necessarily have to be Muslim to rule on matters regarding the Muslim Personal Law (Dommaraju, 2016, p. 199). In general, their decisions are respected, as they only apply generally accepted sharia rules. It is only in cases such as the Shah Bano case (see 3.2.2), where the Supreme court explicitly stated that their judgement was in accordance with Islamic law, that conservative Muslims who disagreed with the ruling saw this as an intrusion to their law, their religious freedom and even identity (Sur, 2015, p. 12).

The resistance AIMPLB has shown against new legislations such as the Muslim Women (Protection of Rights on Divorce) Act (1986) and the Muslim Women (Protection of Rights on Marriage) Act (2019), is closely linked with the discourse around a Uniform Civil Code in India, as we discussed in the previous chapter, yet not completely parallel. The Muslim fear of a Uniform Civil Code is generally not out of opposition of secularism or (gender) equality, or purely legalistic or normative – it is a historically rooted fear of Hindu political control over the Muslim minority in India, and over the Muslim personal laws which they had started equating with their Islamic religious identity (Ghosh, 2009, p. 7-8). This is also illustrated by the fact that Muslims who advocated for a Uniform Civil Code on the basis of gender equality, became seen as traitors after the UCC’s association with BJP’s right wing Hindu politics (Reddy, 2009, p. 428).

4.1.3. India: To what extent is Islamic law authoritative if it goes against constitutional and human rights of (gender) equality? In the previous part we discussed the question: ‘who can interpret Islamic law and/or Muslim Personal Law?’ in light of the discussions around triple talaq in India before the enactment of the Muslim Women (Protection of Rights on Marriage) Act (2019). There is however one other question it often boiled and boils down to in judicial, political and public discourse about triple talaq, namely: ‘to what extent is Islamic law authoritative if it goes against constitutional and human rights of (gender) equality?’

Equality is one of the main terms in the preamble of the Constitution of India. Article 14 of the Constitution of India, which we discussed in the previous chapter, reads that no person in India will be denied equality or discriminated on grounds of religion, race, caste, sex or place of birth. Article 13 of

27 the Constitution reads that if laws are inconsistent with the fundamental rights, they shall be void (The Constitution of India 1949, 1950). Arguments about equality, be it religious equality or gender equality, have always been part of discourses about the Muslim Personal Law and triple talaq. In this part we focus on gender equality.

We have already touched upon the ways in which language of human rights and (gender) equality is used in the run-up to and to justify juridical decisions and law changes, notably those concerning triple talaq in India. Triple talaq as a divorce practice is argued to violate both the right to equality and the right of a woman to live with dignity (Jaitley, 2019). Of this, several aspects can be discerned, which will be discussed below.

First, the right to gender equality is violated because triple talaq is solely the husband’s prerogative, and Muslim women cannot pronounce a triple talaq on their husbands. Rather, they have to resort to other ways of divorce, none of which are unconditional or instantaneous (see 2.3 and 3.1.3). A second way in which this violation is argued to happen is the misuse of the practice of triple talaq in India, such as a simple WhatsApp message reading ‘talaq talaq talaq’, which Abbas (2019, p. 123) calls ‘high- tech divorce’. As Hira Naaz (2016) argued, “[t]he cases of triple talaq given over phone, text messages, Facebook, Skype and email have become increasingly frequent”. Third, triple talaq can be also identified as a tool in a wider pattern of domestic abuse. The threat of a pronouncement of triple talaq makes Muslim women afraid to displease their husbands and prevents them from reporting marital abuse, which consolidates the gender inequality in the family (Mandal, 2018 & Naaz, 2016).

A fourth and most important argument against triple talaq is the financial dependence of Muslim women (and their children) on their husbands and the problems with or uncertainty over their economic situation this brings after a sudden divorce (Mandal, 2018). Hira Naaz (2016), a writer from the website Feminism in India, explains this as follows:

“[W]omen who are not financially independent are left utterly helpless and emotionally broken. Since these ‘abandoned women’ do not receive maintenance or alimony, they are often left alone, fending for themselves and their children. Men, in most cases, do not take any responsibility of the children, especially of daughters, after announcing triple talaq.” (Naaz, 2016)

Lastly, triple talaq can bring “loss of honor or social disgrace experienced by a woman for being shunned by the husband” (Mandal, 2018), which is a violation of the right of a woman to live with dignity.

It is mainly against these kind of injustices against (gender) equality that Muslim women groups in India fight. Muslim women’s rights bodies criticise the “patriarchal thinking emanating from misogynic mindsets [sic.] [that have been] passed off as Islamic” (Soman & Niaz, 2015, p. 4). Among the women’s

28 rights organisations who petitioned to the court in support of Shayara Bano were Bebaak Collective (a collection of autonomous Indian Muslim women groups), Bharatiya Muslim Mahila Andolan (BMMA, Indian Muslim Women’s Movement), and feminist activist Flavia Agnes (Jain, 2019, p. 61). Their standpoints each have a different nuance. While Bebaak Collective focussed on fundamental rights and state control, the latter two focussed on triple talaq’s invalidity (Mandal, 2018). What is important, is that Muslim women groups such as BMMA are religiously inspired and refer to the core values of the Quran, rather than to universal women rights, which they believe to be converging (see 4.1.1) (Khan, 2017). Vatuk (2008) specifically talks about a nascent ‘Islamic feminism’ movement when talking about these Muslim women groups.

4.1.4 Other Muslim countries which already banned triple talaq Lastly, there is one other argument which returned often to argue for the abolishment of triple talaq in India. Namely, a whole range of Muslim-majority countries have reformed their divorce laws decennia ago, and thereby outlawed triple talaq. This is the case for 22 countries besides India, such as Bangladesh, Pakistan, Sri Lanka, Afghanistan, Turkey, Malaysia, Indonesia and Egypt (Sur, 2018, p. 8 & The Tribune, 2018). In this part we will focus on Pakistan and Bangladesh, because those countries have the same British colonial legal legacy as India.

During the Indian Partition of 1947 Pakistan (including East Pakistan, now Bangladesh) split from the mainland as a Muslim-majority country. Before, because they had been one country, Pakistan had followed the same laws as colonial India for matters on Muslim divorce. These laws permitted Muslim husbands to divorce their wives by pronouncing a triple talaq. In 1961 however, the Muslim Family Laws Ordinance (1961) was passed. Since then, all Muslim marriages and divorces are codified. For example, all marriages and divorces have to be registered (in the form of a nikahnama), and polygamy is regulated. “[T]alaq in any form whatsoever” is still permitted, but only becomes effective 90 days after registration, and during this period steps to reconciliation are taken. These regulations mean that in practice, talaq al-bidah – instantaneous and irrevocable – became impossible. The seeming contradiction in the wording has made for some court cases challenging the validity of triple talaq in Pakistan and Bangladesh, but in general it is accepted that the practice is not permitted.

Indians who wished to see triple talaq banned in India, often referred to these other countries and how their Muslim family codes regulate and/or outlaw the divorce practice of triple talaq (Ahmed, 2001, p. 618-619).

4.2. After the Muslim Women (Protection of Rights on Marriage) Bill, 2017 As discussed earlier, in 2017 the Shayara Bano case showed the culmination of all the arguments discussed above. The judges who decided over the case investigated triple talaq not only from a religious point of view, which concerns the validity of triple talaq in the sharia and the disapproval of it within Islamic legal traditions. The judges also took into consideration that triple talaq is a constitutionally protected right to religious freedom, a view which takes place within political and juridical tensions about the Muslim Personal Law. The fact that they, as five secular judges of the Supreme Court, decided over matters concerning the Muslim Personal Law, plays into the debate as well (see. 4.1.2), yet them being of five different religions was a strategic choice to show the Muslim community that they were being heard. Thirdly, arguments that triple talaq can be seen as a violation of fundamental human rights were taken into account as well (Mandal, 2018 & Sur, 2018, p. 7).

The Muslim Women (Protection of Rights on Marriage) Bill and eventually Act8 that followed the Shayara Bano case, on the other hand, brought a shift in the debate. More focus was put on gender equality. Having advocates and opponents, the actual content of the Bill and Act introduced new arguments, which point out the mistakes in the Bill and Act and put a higher focus on communal politics or the political and religious tensions between the Indian Muslim community on the one hand and right-wing Hindus and BJP (Bharatiya Janata Party) on the other.

Those new arguments – about the necessity of the Bill and Act, incongruences in them and communal politics – will be discussed in this part. Arguments that existed before 2017 will not be repeated, but were and are still present in the Indian debate concerning triple talaq. For example, Law and Justice Minister Ravi Shankar Prasad built upon arguments of gender justice in the statement attached to the Muslim Women (Protection of Rights on Marriage) Bill (2017), in which he cites how the bill prevents “the continued harassment being meted out to the hapless married Muslim women” and “the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation” from which Indian Muslim women are boosted to be “liberated”.

4.2.1. The necessity of the Bill and Act The judgement of the Shayara Bano case was that divorce through triple talaq was unconstitutional, and thus, in accordance with article 13(1) of the constitution, void. The Muslim Women (Protection of

8 The content of the Act (2019) is not different from the content of the Bill (2017), except for the provision of bail that was added only in the second draft of the Bill. In this part, I refer to the Bill when referencing an author who discussed the Bill, and the Act when referencing an author who discussed the Act. However, all arguments apply to the content of both.

Rights on Marriage) Bill (2017) and Act (2019) consolidated this. One of the first arguments against this bill is thus that its introduction was not required. The Shayara Bano judgement had already established that divorce through triple talaq was invalid and that the pronouncement of those three words was void and without consequences.

However, the argument of the Indian government to introduce the Bill was that even after the Shayara Bano decision, the amount of triple talaq cases in the country had not diminished, and the legislation was “requited to maintain the gravity of the judgement” (Sur, 2018, p. 7). Arun Jaitley (2019), member of BJP, argues that the provisions in the Bill and Act will discourage those who wish to divorce from their wife by means of triple talaq. Yet criminalisation has not proven to be effective in similar cases such as dowry murders or child sexual abuse, and the Bill and Act can also lead to Muslim men simply deserting their wives, as happens in the Hindu community (Abbas, 2019, p. 124).

As discussed before (see 4.1.3), the Bill put a focus on gender equality. Mandal (2017 & 2018), however, argues that the content of the Bill completely misses its mark, as it focuses on the “capricious and whimsical method of divorce”, rather than on the financial consequences for Muslim women which Muslim women groups opposing triple talaq put the most focus on (see 4.1.3). “Women oppose triple talaq, not because they want to remain in abusive marriages, but because marriage breakdown implies economic hardship for most women” (Mandal, 2017).

Some alternatives to the Muslim Women (Protection of Rights on Marriage) Bill are given that would address the gender inequality inherent to triple talaq in a much better way. For example, when focussing on the wider pattern of domestic abuse (see 4.1.3) in which triple talaq forms a threat for wives to comply and not report the abuse, the practice triple talaq should be addressed separately by the Protection of Women from Domestic Violence Act of 2005. This Act provides protection orders, orders for monetary relief, custody orders, residence orders and compensation orders for victims of domestic abuse, rather than putting the focus on the perpetrators of domestic violence (Mandal, 2018).

Or, when focussing on the fact that triple talaq had been ruled invalid but is still in use and validated by Islamic clerics, this can be framed as part of a wider phenomenon of abuse of the law and handled that way (Mandal, 2018). The intention of dissolving a marriage, accounting to the intention to oppression, then falls under the Indian Penal Code (Singh Sehgal, 2019).

Or, instead, more focus could have been put on institutionalising the practice of (triple) talaq, such as happened in other Muslim countries (Sur, 2018, p. 8). However, the religious-political context of India and the tensions surrounding the Muslim Personal Law would make this no sinecure (see 3.2.1).

If one does indeed not focus on the socio-economic situation of those Muslim women, but instead on the abusive marriages they are in, such as the Indian government did, the Bill and Act can only bring temporary relief of three years, and brings no permanent solution (Singh Sehgal, 2019).

4.2.2. Incongruences in The Bill and Act Not only did the Bill and Act consolidate the invalidity of divorce through triple talaq, they also took this two steps further: not only was the pronouncement of triple talaq – in spoken, written, electronic or any other form – declared void, it also became illegal.

This third clause, which is the most important part of the Bill, already shows one of the incongruences which many of the opponents of the bill pointed out: Muslim husbands would be punished for an already legally void act, as the pronouncement of triple talaq does not dissolve a marriage, and was already reduced to a few words without consequences (Sur, 2018, p. 7). Opponents question how a criminalisation can be justified when no injury is caused to the state or individual, as the pronouncement of triple talaq becomes illegal, regardless of it being accompanied by violence or abuse or not (Mandal, 2018 & Sur, 2018, p. 10). “It makes no sense to impose criminal liability on something that has no legal consequences” (Singh Sehgal, 2019). Already during the proposition of the Bill on a political level there was disagreement on the inclusion of these criminal law provisions, and this continued in the public debate (Mandal, 2018).

There are other incongruences as well. This criminalisation included in the Bill – jailing a Muslim husband for up to three years for pronouncing a void triple talaq upon his wife – has unintended consequences which nullify the prevention of gender inequality that the Bill intends to secure. The Bill shows a “lopsided view on gender justice, which remains political and does not consider the socio- economic wellbeing of these women” (Sur, 2018, p. 8).

Financial dependence of a Muslim woman (and her children) on her husband and the uncertainty this brings after a sudden divorce is one of the main gender arguments against triple talaq (see 4.1.3). However, when a husband is imprisoned for up to three years, his wife still will have to rely on maintenance to survive, while her husband is unable to earn money. As Sur (2018, p. 7) says, “there is a direct relationship between imprisonment, livelihood earning and maintenance” and the question of how this will be solved is only vaguely addressed in the Bill (the wife can approach the District Magistrate regarding this issue). This, of course, is an issue that lays on the intersection of gender and class (Sur, 2018, p. 8).

The poverty of Muslim women was the drive for them to approach sharia courts or Jamaat instead of civil courts. The financial situation of those women has not changed, but the legal process has become

32 more complicated, which may increase Muslim women’s dependence on those sharia family courts (Abbas, 2019, p. 124).

The fact that the bill addresses subsistence allowance and custody rights to women after a triple talaq has been pronounced over them, also raises eyebrows. If, after all, there is no legal divorce, a wife keeps her legal equal access to the family resources and home, and the question of custody should not be asked (FP Staff, 2017). By directing about custody and maintenance, the Bill and Act in some way legitimise the divorce they at the same time annul (Singh Sehgal, 2019).

Loss of honour or social disgrace for a Muslim woman is another negative consequence of divorce through triple talaq. However, the criminalisation and imprisonment of her husband can have the exact same consequences for a Muslim woman (Sur, 2018, p. 8).

4.2.3. Communal politics The criminalisation has another effect, and has to be seen in the light of the current socio-economic and religious-political climate in India. The Bharatiya Janata Party (BJP), led by prime minister Narendra Modi, is known for its right-wing Hindu nationalist politics, and has multiple times been scrutinised for Islamophobic discourse and measures (Sur, 2018, p. 8). Othering Indian Muslims as one homogenous group in Indian culture, history and politics has been one of those tactics. Muslims have been framed as dangerous and a threat to Hindutva or the Hindu nationalist identity (Sur, 2018, p. 8, 10) and as conservative and violent (Menon, 2017). Pointing out all the previously discussed incongruences, opponents state that the new legislation fits into this story and is “just a stretch to aid communal politics” (Singh Sehgal, 2019).

By introducing a legislation especially for Muslims, the Indian government deviates from its Universal Civil Code dream and reaffirms the boundary between Muslims and Hindus in India that has been established through communal discourse. Sur (2018, p. 11) calls this “a glaring example of the failure of the state’s commitment to secularism at the behest of Muslim religious fundamentalists”. Other authors do not see this as a failure but rather as a conscious choice to further communal politics through an us-them trope (Drabu, 2018, p. 14).

In communal politics and violence, gender intersects with religion. As Mandal (2017) points out, the title of the Muslim Women (Protection of Rights on Marriage) Bill is a reference to the Muslim Women (Protection of Rights on Divorce) Act of 1986, and with that also a strategical political move, self- positioning Narendra Modi and BJP as “liberator of Muslim women and a champion of their rights”.

Opponents have been sceptical about BJP’s fight for gender justice for Muslim women, referring to BJP’s history of communal politics and violence, and the incongruences in the Bill and Act. This view is

33 strengthened by the fact that the civil society and various stakeholders were not consulted in the drafting of the Bill, neither the Muslim women groups who supported the Shayara Bano case, nor the All India Muslim Personal Law Board (AIMPLB) (Sur, 2018, p. 9). In a collective statement, Bebaak Collective even accused BJP of claiming victories against triple talaq (such as the Shah Bano case), while disregarding and appropriating the efforts made by Muslim women groups (Menon, 2017).

The Muslim Women (Protection of Rights on Marriage) Bill and Act are believed to fit into this earlier discussed picture of stereotyping and stigmatising Indian Muslims, but in this discourse there is also an intersection between gender and religion. As concern for the aggrieved women is lacking and the new legislation provides a new legal way of detaining Muslim men (Singh Sehgal, 2019), opponents point out that it simply reduces Muslim women to helpless victims and Muslim men to oppressors and criminals (Sur, 2018, p. 9), an aggravation of earlier communal discourse (Sur, 2015, p. 9).

Human rights activist Agnes Flavia has pointed out that “the Muslim male is projected as backward, obscurantist, and misogynist, and the women as helpless victims and devoid of agency” (Agnes, 2018 in Sur, 2018, p. 11). The 2011 census shows that 73 percent of divorced women in India are Hindu. Yet Hindu women are not portrayed as helpless victims that need saving, and domestic violence and desertion have been made out to be a problem uniquely to the Muslim community and its archaic system (Abbas, 2019, p. 122). This stereotyping makes it easier for BJP, or “the Hindu man” to step up as the saviour of Muslim women (Mandal, 2017).

All the above led many opponents of the Bill and Act to wonder one thing: “are Muslim women […] being used as pawns?” Sur (2018, p. 9). Opponents of the Bill and Act claim that it could be misused by Hindus to demonise and target Muslim men (Krishan, 2019) by using the legal power of the Act that was given to them through the state’s coercive power (Mandal, 2018 & FP Staff, 2017).

5. Agency of Muslim women in India

We have already touched upon how Muslim women are often invisible or portrayed as passive victims devoid of agency in Indian society and communal politics (see 2.2 and 4.2.3). Muslim women’s lack of agency in saviour discourses, as used by BJP regarding triple talaq, will be discussed in the next chapter. In this chapter, we would like to present Muslim women as agents rather than objects of discourse, and look at the different types of agency that they have, regardless of how they are portrayed. In order to do this, we need to step away from liberal-secularist feminist interpretations of agency for women in gender-traditional religions, which pose that those women have no agency as they are not striving to be liberated from the gender relations in their tradition (Burke, 2012). Instead we borrow frameworks from religious women’s agency studies. We will look at two specific situations that are linked with the debates around triple talaq: the agency of Muslim women in matters of marriage and divorce, and in Muslim women’s activism.

5.1. Religious women’s agency Due to the postsecular turn within feminist thought, a stronger focus on the intersections of gender and religion was brought to studies of agency too. This brought the spotlight back to an old paradox of liberalist-secular feminism, and started to challenge it: women in patriarchal religious traditions, with their strict social rules and women’s subordination, seem to actively choose to “comply with, embrace, uphold, and even spread” the religious practices and traditions that supposedly suppress them (Singh, 2015, p. 661). This active choice would imply that the women do have agency and are not passive and brainwashed victims, as the false consciousness thesis implies (Singh, 2015, p. 661).

Saba Mahmood’s work is in multiple ways a touchstone for religious women’s agency (Sing, 2015, p. 661) in arguing that the liberal-secularist interpretation of agency did not suffice with regards to religious women (Mahmood, 2001). Mahmood challenges the universality of liberal notions such as the desire to freedom and autonomy, and agency as resistance to relations of domination (Mahmood, 2001, p. 204). Instead, she points out different ways of self-realisation and defines agency as “a capacity for action that historically specific relations of subordination create and enable” (Mahmood, 2001, p. 208, 210).

Building upon Mahmood, other authors expanded the definition of agency to include other religious women’s actions that are active, intentional and undetermined by social structures (Singh, 2015, p. 661). Burke (2012) defines four different approaches to understanding religious women’s agency, namely resistance agency, empowerment agency, instrumental agency and compliant agency. In defining these four types, Burke shows that religious women’s agency feminist scholarship goes

35 beyond the single idea of agency as resisting or subverting structures of – patriarchal and religious – subordination (Mahmood, 2001, p. 205).

First, resistance agency is the form of agency in which religious women actively challenge or modify religious traditions and norms (Burke, 2012, p. 124). As this resistance is most often directed against traditional gender roles, it conforms to the liberal-secularist feminist interpretation of agency which only happens within structures of subordination (Mahmood, 2001, p. 205), for example by patriarchal religions and the men who perform them, and excludes those women who conform to religion (Burke, 2012, p. 125). Second, women with empowerment agency do not challenge or modify religious traditions or norms, they reinterpret them to change their response in order to feel empowered in their everyday life (Burke, 2012, p. 125-126). This empowerment happens on an emotional or psychologic level (Singh, 2015, p. 661). This form of agency assumes women’s subordination to men, just like resistance agency and instrumental agency (Burke, 2012, p. 125-126). Third, instrumental agency brings empowerment, not by internal feelings but by external – material or relational – non- religious benefits (Burke, 2012, p. 126).

The fourth form, compliant agency, is the one Mahmood pointed out as a form of agency which does not rely on the desire for an autonomous self and freedom from oppression (Mahmood, 2001, p. 208). This form of religious agency means a conformity to religious rules, for a religious rationale (Burke, 2012, p. 127-128) and needs to be understood in light of the “discourses and structures of subordination that create the conditions of its enactment” (Mahmood, 2001, p. 212). Thus, women can comply with religious instructions in different ways, and their religious understanding of the world can also lead to actions of resistance (Burke, 2012, p. 128).

5.2. Muslim women’s agency in marriage and divorce As discussed above, different forms of religious women’s agency can be discerned. Resistance agency, empowerment agency and instrumental agency all are approaches to agency that suppose that women in gender-traditional religions – which includes some branches of Islam, although Islam as a whole is often assumed to be gender-traditional – are subordinated or suppressed, and that they wish to resist that subordination (Burke, 2012). Compliant agency supposes a different form of subjectivity or the self that has no desire for resistance, emancipation or autonomy (Singh, 2015, p. 662) and instead encompasses an inhabitation of norms for religious ends (Burke, 2012, p. 127-128).

Discerning different forms of women’s agency, and especially compliant agency, puts the focus on the multiplicity of women’s experiences and attitudes. Indian Muslim women cannot be generalised to one homogenous group because of their nationality, religion and sex, as they each fall on different intersections and have different motivations, desires and goals (Kłodkowski, 2017, p. 19, 20 &

Mahmood, 2001, p. 209) and have different ways of interpreting religious norms and traditions (Burke, 2012, p. 128). Historically specific discourses and forms of subordination generate different forms of agency (Mahmood, 2001, p. 212) and not all forms of agency exist in the light of oppression (Mahmood, 2001). Rather, an extended conception of agency includes actions that are not determined by social structures, active and intentional, and gives no notion of oppression (Singh, 2015, p. 661). As matters of marriage and divorce are closely linked to religion, and in India determined by religious laws, women can exert religious agency in these situations. The different forms of religious agency will be discussed in light of Islamic marriage and divorce in India, as a way to show that more than just resistance agency is available to Muslim women.

Resistance agency is the most visible and represented form of agency for Indian Muslim women in matters of marriage and divorce, both for individual Muslim women as for groups. The Shah Bano Case (see 3.2.2) is one of the most renowned cases of a woman exercising agency by resisting her religion. Shah Bano disagreed with the provision in the Islamic law that a woman, after a divorce, only gets maintenance from her husband during the period of idda, which lasts about three months. To challenge this religious provision, she filed a court case (Sur, 2015, p. 12). The same resistance agency can be discerned when Shayara Bano (see 3.2.4), and the other Muslim women with her, filed a case at the Indian high court against triple talaq, nikah halala – the practice when a divorced woman has to marry and divorce another husband before she can remarry her first one – and polygamy which are allowed in Islamic law. These are all religious practices which are supported by traditional gender roles, which women with resistance agency have the chance to and choose to challenge (Burke, 2012, p. 124- 125).

Muslim women undoubtedly have other forms of religious agency in matters of marriage and divorce. Any intentional action that she can take or takes in her marriage or divorce, undetermined by her social structures, in order to gain empowerment, material or relational benefits or religious credit, gives her agentive capacity (Singh, 2015, p. 661). Burke (2012, p. 128-129) warns for the danger of seeing any kind of action of religious women as compliant agency. Keeping this in mind, it is undeniable that many Muslim women do exercise compliant agency in matters of marriage and divorce.

5.3. Muslim women’s agency in activism The two biggest Muslim women activist groups who were and are involved with triple talaq in India and who petitioned against the court in the Shayara Bano Case (see 3.2.4) are Bharatiya Muslim Mahila Andolan and Bebaak Collective. Both groups have been fighting and still fight for Muslim women rights in India, but they follow a slightly different approach and therefore different types of agency can be

37 discerned in their activism, even though their cause is the same. In this part, we will discuss both women’s rights groups separately to illustrate those different types of religious agency.

Bharatiya Muslim Mahila Andolan (BMMA or Indian Muslim Women’s Movement) was formed in 2007 and is “an autonomous, secular, rights-based mass organisation led by Muslim women which fight for the citizenship rights of the Muslims in India” (Soman & Niaz, 2015, p. 57). BMMA’s activism against triple talaq was focussed on the invalidity of triple talaq, which they argue to be un-Quranic and in violation of Quranic women’s rights (Soman & Niaz, 2015, p. 24). Triple talaq, in their view, has been widely accepted as a divorce practice due to misconceptions that male superiority and other forms of patriarchal and misogynist thinking are Islamic (Soman & Niaz, 2015, p. 4). Striving for a codification of Muslim family law but opposing the politicisation of the question of a Uniform Civil Code (Soman & Niaz, 2015), and thus moderate state intervention (Mandal, 2018), BMMA has supported and welcomed the Muslim Women (Protection of Rights on Marriage) Bill and Act (Krishan, 2019).

Bebaak Collective (Voices of the fearless) is an umbrella organisation of Muslim women groups in India that “fights against fundamentalism and repressive forces from an intersectional feminist perspective” (Menon, 2017). Bebaak Collective followed BMMA in stating that triple talaq is not essential to Islam, referring to other Islamic countries which had already banned the practice. Yet, their main argument is that triple talaq is unconstitutional. Their stronger focus on fundamental rights – not only for Muslim women – caused them to advocate for full state control on Muslim family matters amongst others (Mandal, 2018). This state control would go beyond triple talaq to questions of gender discrimination, social security in terms of economic and educational rights for women, and the victimisation of Muslim women (Marik, 2017). Opposed to BMMA, Bebaak Collective has protested against the Muslim Women (Protection of Rights on Marriage) Bill and Act. Hasina Khan, founder of Bebaak Collective, stated the following: “The government’s concern for Muslim women is fake. Criminalization bill [sic] is not the solution. It is law that frightens and is bereft of justice” (Team DNA, 2019).

Resistance is a very important aspect of activism, so resistance agency is a form of religious agency that will easily be recognised in matters of Muslim women activism against triple talaq in India. Burke (2012, p. 125) specifically mentions Muslim women’s groups who advocate for women’s civil rights related to divorce when explaining resistance agency. Both Bharatiya Muslim Mahila Andolan and Bebaak Collective actively try to change the practice of triple talaq, and thus challenge their status quo and victimisation (Burke, 2012, p. 124). However, they do this by negotiating two things: first, their own religious ties in their activism, and second, the Islamic nature of triple talaq.

BMMA calls itself a secular organisation, but their arguments against triple talaq are still heavily inspired by their Islamic beliefs and the Quran (Soman & Niaz, 2015, p. 24). In making a different

38 interpretation of the Quran than the widespread patriarchal one, one in which gender justice is a fundamental principle of Islam and triple talaq is no part of it (Khan, 2017), Muslim women from BMMA are able draw their strength from their religion and are in this way empowered to challenge the status quo. “For women to become equal we have to draw strength from the Quran, from the constitution, from the democratic principles and from all the institutions around us” (Khan, 2017), Zakia Soman argued. This is a form of empowerment agency which enables resistance agency (Burke, 2012).

Additionally, Bebaak Collective not only challenged their religion, they also challenged the victimisation of Muslim women (Marik, 2017) which is inherent in a definition of agency that only includes resistance agency (Burke, 2012, p. 124-125). Thus, the form of agency they have goes beyond only resistance agency. Burke (2012, p. 126) has warned about the assumption that in order to have resistance agency or empowerment agency, one has to experience “a disparity between feminist-influenced modern culture and their gender-traditional religions”. As shown above, Muslim women from BMMA and Bebaak Collective have resistance agency and/or empowerment agency, but they do not necessarily experience that disparity. Zakia Soman has said that the core values of the Quran and the constitution converge and that BMMA is inspired by feminist movements (Khan, 2017). Bebaak Collective presents itself as intersectional feminist (Menon, 2017). There is thus an absence of dissent between religion and feminism in the use of religious agency by these Muslim women activist groups (Burke, 2012, p. 126).

In this chapter, we discussed how a liberal-secularist definition of agency – which is limited to acts of resistance against oppression – is shortcoming to describe the experiences and choices of religious women. Relying on Mahmood’s and Burke’s expanded conceptions of religious agency, we have illustrated the different kinds of agency that Muslim women in India have in matters of divorce and in matters of activism.

6. Saving brown women

This chapter consists of four parts, and explores postcolonial feminist thought on (Muslim) women and their representations by Western colonisers and Western feminists in order to demonstrate how the same narratives are today still constructed in India. In the first part, referencing Gayatri Spivak’s essay ‘Can the subaltern speak?’ (1988), we trace how women have historically been silenced and denied agency. In the second part, we built upon this to demonstrate how, when women are denied a voice, others are able to represent those women in stereotypical ways. In the third and fourth part, it is shown how Muslim women, when represented as victims of oppressive Muslim men, become subjects of a rescue narrative.

6.1. Silencing brown women In October 2017, BJP leader Subramanian Swamy talked about an election win for the Bharatiya Janata Party in the state Uttar Pradesh, and attributed this win to the Muslim votes for the party. He stated that Muslims had voted for BJP “because Muslim women felt that only [BJP] could save them from triple talaq” (ENS, 2017). This saviour narrative angered the Muslim activist women from Bebaak Collective, who subsequently issued a collective statement (Menon, 2017). Pointing out the stereotyping of the Muslim community as conservative and violent, the lack of actual policy changes and BJP’s hypocrisy in only addressing women’s rights in cases of triple talaq, Bebaak Collective focuses on one argument above all: the appropriation of Muslim women’s voices.

BJP, as they argued, hijacked the efforts and victory of the women’s movement by “reiterating the strong voices of women activists within the Muslim community” (Menon, 2017). For years BJP had not paid any attention to Muslim women’s groups who advocated for change. When these women’s groups’ efforts led to a new legal ruling, BJP promptly proposed a bill for which the party did not consult these women’s groups and which many of them opposed, and used a rescue narrative (see chapter 7) that implied that BJP was the sole saviour of Muslim women (Sur, 2018). In this way BJP denied the efforts of women’s groups and silenced them.

In focussing on the silencing of Muslim women in a saviour narrative with a nationalist political agenda, Bebaak Collective gave an illustration of postcolonial feminist thought on women’s voices and agency. These challenge the liberal feminist and nationalist political thinking that pose (brown) women solely as subjects of discourse (Burke, 2012 & Bracke, 2012, p. 241), silencing their voices, stripping them of their agency and depicting them in a stereotypical way that enables the saviour narrative to arise.

As explained in the previous chapter, postcolonial feminists have challenged Western liberal-secularist feminist conceptions of agency which exclude women who participate in gender-traditional religions

40 by following its customs and norms (Burke, 2012, p. 123). Scholars like Saba Mahmood (2001) have argued for a different conception of agency that includes compliant religious women, proving that they are not without agency. When solely focussing on agency as acts of resistance, however, those women are forgotten and not granted any agency. The same kind of process of rendering women invisible – and silent – happens in socio-cultural and political discourses on women. Most of the feminist research on this phenomenon has happened in postcolonial feminist thinking and challenges discourses on women that further national, colonial and imperial projects (Bracke, 2012, p. 241).

A ground breaking essay in this regard is Gayatri Spivak’s ‘Can the subaltern speak?’ (1988). In this essay, she developed the notion of ‘white men saving brown women from brown men’, which will be elaborated on later (see 6.3). More importantly here, Spivak addressed the question: can the subaltern speak? Do the subaltern – people constructed as the other in colonial discourse – have the option to make their own decisions and speak for themselves? Are subaltern women able to represent themselves? The answer sounded: no, they cannot. The reason for this can be found in essentialist colonial making of the (Indian) subaltern as a subject defined by difference, and in the silencing of that group through epistemic violence.

Epistemic violence refers to harm done to the subaltern through colonial discourse. Building upon Foucault, discourses are historically specific systems of meaning in which the identities of subjects and objects are constructed through imposing value systems. The production of discourse is heavily linked to the power of the hegemonic (Sur, 2014, p. 10, 44). Epistemic violence happens through certain historical narratives of the subaltern in which their voices are left out – in favour of the colonial or high-class male voices –, their identities are reinterpreted and constructed in opposition to the hegemonic, and textual evidence of the subaltern’s knowledge, history and identity is erased (Spivak, 1988, p. 75, 76). Through epistemic violence, “an explanation and narrative of reality was established as the normative one” (Spivak, 1988, p. 76). And, where “the subaltern has no history and cannot speak, the subaltern as female is even more deeply in shadow” (Spivak, 1988, p. 83), as the construction of man and woman in colonial discourse made the male subaltern dominant. Depriving her of her chance to represent herself, colonial narratives mute the subaltern (woman) and give her no agency.

Bimantara (2018, p. 284) talks about Muslim women as gendered subalterns to fit the subaltern concept within gender relations. The subjects who other Muslim women are men – both Hindu men who constitute the state’s decision making process (see 6.4) and the male-dominant ulama (who form the Islamic religious authority, see 6.2).

Silencing women through epistemic violence and giving them no chance to represent themselves leads to the phenomenon that others who silence women are also able to represent them, in a way that does not reflect the realities those women live in and the conditions they have to deal with (Bracke, 2012, p. 243). The stereotypical representation of – here specifically Muslim – women as victims opens the way for rescue narratives. This victimisation will be discussed next.

6.2. Saving brown women from brown men Discourses of saving women are based upon one clear assumption: those women are victims in need of help (Bracke, 2012, p. 241). In order for such an assumption to find root, those women are silenced and established to be without (resistance) agency against an oppressive force. Spivak (1988, p. 74) explains how this project of silencing and happens through epistemic violence, in which a new set of knowledge is formed to cover the voices of others (see 6.1). This is combined with a process of othering, a concept of Orientalism which explains how the colonial subject, here specifically brown women, are established as the ‘other’ in opposition to Western people. Chandra Talpade Mohanty (1988, p. 336-337) has discerned three basic analytic principles of ethnocentrism on women in the third world, which explains the mechanisms of othering and victimisation.

The first principle is the assumption of a universal and cross-cultural womanhood, in opposition to manhood or even patriarchy. Women are assumed to be “an already constituted, coherent group with identical interests and desires, regardless of class, ethnic or racial location or contradictions” (Mohanty, 1988, p. 336-337). This assumed universality is not biological, so women are not oppressed because of their sex, rather, women are characterised as a singular group because they have a shared oppression (Mohanty, 1988, p. 337). Women are seen as a homogenous group characterised by common dependencies or powerlessness and some kind of cultural coherence (Mohanty, 1988, p. 340, 350). Mohanty (1988, p. 334) differs between ‘woman’ which is this singular image constructed through diverse representational discourses, and ‘women’ who are real subjects of their collective histories. Due to the construction of ‘woman’, women of the third world are given labels such as powerless, exploited or victims (Mohanty, 1988, p. 338). This creation of stereotypical images happens through essentialist language and epistemic violence (Spivak, 1988, p. 74).

Mohanty discerns a few different oppressive forces for women (see below), but one is already inherent to the assumed timeless universality of women because of a shared oppression. When women (or women of the third world) are defined as one homogenous group, they stand in opposition of men (of the third world) as one homogenous group which is not oppressed – rather, they oppress. This is rooted in the assumption that patriarchy or male dominance is a universal, monolithic and ahistorical power system. Instead, power balances vary dependent on specific cultures, ideologies and socio-economic

42 conditions and need to be situated in that way (Mohanty, 1988, p. 335). Yet the idea of a universal patriarchy resists. In this way, a division is made between victims and oppressors – women and men – in a binary opposition, regardless of any context or historical specificity (Mohanty, 1988, p. 340), which leads to the homogenisation and systematisation of the oppression of the third world woman (Mohanty, 1988, p. 335).

The second principle that Mohanty (1988, p. 338, 347) defines is the uncritical methods of finding proof for this universality. Rather than uncovering universal structures of patriarchal dominance, evidential proof of a shared oppression is found in case-by-case examples of oppression in different contexts, without considering the different meanings attached to the cases in different contexts.

The third principle is the implication of a certain model of power and struggle. When you construct the idea that someone needs saving, you imply that they need saving from something (Abu-Lughod, 2002, p. 787). Mohanty (1988, p. 338) discerns a few different ways in which women can be defined as oppressed, and thus defined solely in terms of their object status or the way they may or may not be affected by certain systems. These oppressive forces can for example be male violence, the colonial process, the Arab familial system, the economic developmental system or the Islamic code. Quite a few of these can also be applied to the context of triple talaq.

Bimantara (2018, p. 280, 281) discerns between direct, structural and cultural violence to point out the factors which are important in the Islamic marital discourse. Cultural violence represents any form of culture – including religion – which can be used to legitimise direct violence. The divorce practice of triple talaq favours men over women, as a triple talaq can only be pronounced by husbands and not by their wives, and cannot be reversed by an ex-wife. This can be explained by the Arab religious patriarchy, executed through the Islamic law and spread by Islamic teachings throughout history, which prioritises the rights of males and elders (Bimantara, 2018, p. 281). Structural violence refers to the institutionalisation of violence or harm (Bimantara, 2018, p. 280). Of this, India’s hybrid legal system and the institutionalisation of Islamic law under the Muslim Personal Law – inherited from the British colonial juridical system – is a perfect example regarding triple talaq in India (Bimantara, 2018, p. 282, 283).

The violence against women can be explained by multiple and intersecting oppressive forces of which religious explanations only make up a few, apart from for example political, economic and educational factors. Yet oppressive practices against (Muslim) women are all too often associated with one religion. A discourse in which all Muslims and Islam as a whole are presented as oppressive for its women is essentialising, in that it generalises an aspect of only a few to be a quality of the entire group (Drabu, 2018, p. 283). The argument about Muslim women’s financial dependence on their husbands – which

43 leads to uncertainty and poverty after a sudden divorce – is often overlooked for a focus on religious aspects in the discussion about triple talaq. As Sur (2014, p. 44) says, “the popular discourses rarely stereotype Muslim women as ‘less educated’ or ‘unemployed’ rather concentrates more on ‘veiled’, ‘victim’, or ‘passive’ images”, all which are linked with their Islamic religion.

The argument of religious violence can be supplemented with the so-called ‘false consciousness thesis’, which poses that women are not only victims of their damaging patriarchal religion or culture, but that they are brainwashed to discard this victimisation (Bracke, 2012, p. 247). In this way, they would stand in the way of their own empowerment and need to be saved by others (see 6.3). The false consciousness thesis and the lack of agency ascribed to religious women has been challenged in religious women’s agency studies (see 5.1).

Mohanty (1988) focusses on Western feminist discourse about women in the third world. The principles which are explained above can however also be applied to any other discourse which constructs the other in opposition to the hegemonic self. The self then serves as – and is constructed as – the implicit referent for this cultural or religious other, or “the yardstick by which to encode and represent cultural Others” (Mohanty, 1988, p. 336). In the discourse regarding triple talaq which will be discussed later, this other refers to Indian Muslims while the implicit referent is the Hindu nationalist.

Where the self – the Indian Hindu (man) – is privileged, the other – the Indian Muslim (woman) – is encoded and represented as disadvantaged in several ways. Muslims in India are othered and in dominant discourse seen in stereotypical ways as invaders, traitors, backward, conservative, oppressed/oppressive, terrorists, suspicious, anti-national, criminal and so on. (Sur, 2014, p. 45-46). This negative stereotyping has led to Islamophobia, which covers prejudices, dislike and hatred against Muslims in India (Drabu, 2018, p. 282-283). Muslim women, in a binary opposition to Muslim men, are presented as lacking agency and being oppressed, passive, submissive and traditional – oppressed, specifically, by Muslim men, leading to a gendered racism and saviour narratives (Drabu, 2018, p. 283). There are two sets of misunderstandings in discourse about Muslim women in India. Firstly, they are seen as one monolithic category, even though Indian Muslims are highly divided on lines of caste, class, ethnicities and more. Secondly, Indian Muslim women’s status is defined by their religion (see above) (Sur, 2014, p. 46).

6.3. White people saving brown women from brown men Through silencing and othering discourse, groups of women are depicted as passive victims in need of help. This ‘in need of help’ argument provides the basis for rescue narratives (Bracke, 2012, p. 242). One implication of rescue narratives is that you are saving someone from something (see 6.2), but

44 another is that you are saving them to something. This holds presumptions of the superiority of that which you are saving them to, and the people who claim liberate in a patronising way (Abu-Lughod, 2002, p. 789).

The phrase ‘white men are saving brown women from brown men’ was coined by Gayatri Spivak (1988) and rooted in a critique on British colonial discourse, but has later on evolved to include saviour discourses that further colonialist, imperialist and also nationalist goals (see chapter 7)(Bracke, 2012, p. 241). These projects have been closely entangled with women’s emancipation discourses, contrasting Western women with subaltern women and at the same time equating them in a sisterhood paradigm (Bracke, 2012, p. 241). This leads us to discuss both under the heading of ‘white people saving brown women from brown men’, although treated separately.

Gayatri Spivak (1988, p. 92-94) coined the sentence ‘white men are saving brown women from brown men’ in a postcolonial critique and explained it through the British abolition of sati in colonial India. Sati or widow-burning was a practice of Hindu widow self-immolation that sporadically happened on the subcontinent. Even though the British had a general stance of non-interference with native custom or law, sati fell into a discourse of women who needed to be protected, and was subsequently abolished. Other practices that were prohibited were child marriage, female infanticide etc. (Abu- Lughod, 2002, p. 784). In this way, “the protection of woman [became] a signifier for the establishment of a good society which must, at such inaugurative moments, transgress mere legality, or equity of legal policy” (Spivak, 1988, p. 94).

The rescue narrative of colonial discourse was repeated by Western feminists, effectively helping the colonial project. In this way, “Western feminism came to serve as a ‘handmaiden’ to colonialism” (Ahmed, 1992, as quoted in Bracke, 2012, p. 241). Colonialism, on the other hand, circumscribed Western feminism and women’s emancipation. The subject of the women’s movement was defined as the Western, civilised, emancipated woman. This definition was constructed in opposition to ‘other’ women, which included, most notably, the colonised or subaltern woman. The common ground in those women’s otherness was that they were presented as victims of their oppressive cultures, and in need of help of the Western woman. Thus, rescue narratives in which Western women saved and had to save their uncivilised sisters established them as the subject of the new women’s movement and helped in furthering the colonial project (Bracke, 2012, p. 241). These historical roots are echoed in the current neo-colonial feminist rhetoric of solidarity with Muslim sisters. Leila Ahmed’s colonial feminism refers to the selective concern about women’s rights, which is focussed on brown women’s oppression by their culture or religion more than for example economic disadvantages or white women’s rights (Abu-Lughod, 2002, p. 784).

6.4. Brown men saving brown women from brown men Gayatri Spivak’s phrase ‘white men are saving brown women from brown men’ was originally formed in a critique of British colonialism in India, but has evolved to describe other imperialist and nationalist projects too (Spivak, 1988, p. 94). In this light, the phrase can be adjusted to the Indian context of Hindutva or Hindu fundamentalism. In this definition of India, carried out by Bharatiya Janata Party amongst others, the Muslim minority is seen as misfits and constructed in that image in a discourse of othering. In this, a rescue narrative has come forth (Drabu, 2018, p. 283).

The Muslim Women (Protection of Rights on Marriage) Act of 2019 was introduced as a means to protect Muslim women and ensure their rights – implying that under the Islamic law, these rights are not ensured. Gender justice for Muslim women has been a promise made by Narendra Modi, and he and BJP government are “determined to save [Muslim women] from the unjust practice of tin talaq [triple talaq]” (Sur, 2018, p. 9). The supporters of Hindutva are Indian Hindus and can thus not be described by the racial marker ‘white’. Instead, Drabu (2018, p. 283) has proposed an alternative, in which not white men, but brown men are saving brown women from brown men. In the context of triple talaq that is discussed here, this phrase needs to be understood as ‘Hindu men saving Muslim women from Muslim men’.

In this chapter, we built upon Spivak’s conception of epistemic violence to illustrate how Muslim women can be silenced in socio-cultural and political discourses. This silencing, combined with othering, is a constitutive part of rescue narratives, in which women are constructed as victims in need of help. Following Mohanty’s analysis, rescue narratives happen through the assumption of a universal womanhood through oppression. For Muslim women, oppressive forces are multiple and intersecting, yet in discourse often brought back to their patriarchal religion only – and exercised through Muslim men, who are constructed as the oppressors. Rescue narratives in the colonial context have famously been described by Spivak as ‘white men are saving brown women from brown men’. In the next chapter, we will discuss the use of the saviour trope with regards to Muslim women who are ‘victims’ of triple talaq by members of BJP and other Indian Hindus. For this reason, we use the alternative ‘brown women are saving brown women from brown men’.

7. Femonationalism

Originally coined with colonial relations in mind, Spivak’s ‘white men saving brown women from brown men’ has evolved to describe other imperialist and nationalist projects in which the subaltern – or simply the other – is ignored and used in discourse to further those goals (Spivak, 1988, p. 94). This can be exemplified by the United States’ war on terror, which has been “construed, waged and legitimized on gendered and indeed sexualized terrain” (Bracke, 2012, p. 244) through the discourse that the fight against terrorism helped in ensuring women’s rights and dignity. In the war discourse the US claimed to “liberate [in particular] Muslim and Arab women from the yoke of their misogynist cultural backgrounds and religious traditions” (Bracke, 2012, p. 244). The instrumentalisation of feminist ideas in the US’s war on terror initiated the same trend in other Western countries (Farris & Rottenberg, 2017, p. 7). In Europe as well the saviour narrative and the promise of women’s rights has been employed to advance not emancipatory goals, but rather political and nationalist goals. In order to describe the European phenomenon in which right-wing nationalist parties “have embraced and utilised gender parity to further a racist, anti-immigrant [and anti-Muslim] agenda” (Farris & Rottenberg, 2017, p. 6), Sara Farris has coined the term ‘femonationalism’. In this chapter, the global nature of this phenomenon (Farris & Rottenberg, 2017, p. 8) will be addressed, and the term femonationalism and the phenomenon it describes will be applied to the Indian context. More specifically, we will use Sara Farris’ analytical concept of femonationalism to explain BJP’s nationalist and xenophobic agenda behind their women’s rights rhetoric.

With a focus on The Netherlands, France and Italy, Sara Farris (2017) has analysed the intersection between three groups of political actors, all of which combine emancipatory rhetoric with an anti-Islam or anti-immigration agenda. In other words, they “invoke women’s rights to stigmatise Muslim men in order to advance their own political objectives” (Farris, 2017, p. 3). First, there are nationalist right- wing parties, who benefit from an anti-Islam or generally xenophobic rhetoric but for whom a gender equality rhetoric seemingly contradicts their core ideologies and policies. Second, some feminists, women’s organisations and femocrats9 have employed the same rhetoric, contrasting their own western society with the patriarchal and sexist other (Farris, 2017, p. 2). Third, Farris discusses neoliberalist policies, and civic integration programmes as an example of these policies in which anti- Muslim rhetoric gets broadened to a general anti-immigrant rhetoric (Farris, 2017, p. 3). In order to name this intersection and frame the political-economic logic underpinning it, Farris (2017, p. 3-4) has introduced the notion of femonationalism.

9 Femocrats are top-ranking bureaucrats in state gender equality agencies (Farris, 2017, p. 2).

This framework has three different dimensions: femonationalism as convergence, as ideological formation and as neoliberal political economy. Femonationalism as convergence means that the three political actors described above all keep their autonomy and that there is no new identity or homogeneity created, even though they all use the same rhetoric (Farris, 2017, p. 6). Seeing femonationalism as an ideological formation allows to take history into account (Farris, 2017, p. 10). Femonationalism as a neoliberal political economy is the third dimension, and explains how the use of gender equality arguments which strengthen xenophobia has economic benefits for nationalist, feminist and neoliberal politics (Farris, 2017, p. 12, 13).

In the analysis of India’s triple talaq ban, the main focus will be on the political actor of right-wing parties, illustrated by the Bharatiya Janata Party (BJP), the main Hindu nationalist party in India. These right-wing parties represent the nationalist strand in femonationalism’s intersection, which focus brings us back to Spivak’s (1988, p. 94) rescue narrative which can be used in other nationalist contexts too. An analysis of anti-Muslim rhetoric in Indian feminist groups and neoliberalist politics is not possible here as it falls beyond the scope of this dissertation, but further research on this topic is encouraged.

Anti-Islam rhetoric is built upon invoking fear – Islamophobia – and the idea of the threat that Muslims constitute for European societies. This threat is mainly Islam’s allegedly inherent oppressive treatment of women, who are portrayed as passive victims who need to be rescued and emancipated. Sexism and patriarchy are presented as the almost exclusive domain of the Muslim other, in contrast to western countries as sites of superior gender relations. The Muslim man and woman are assumed to be the main representatives of the binary oppressor and victim (Farris, 2017, p. 2, 5).

Opponents and feminists have pointed out how BJP’s women’s rights rhetoric is very selective; it focuses on Muslim women in a few instances only. First, where Muslim women are constructed as the other in need of help, Hindu women are not discussed as lacking the same rights. Divorce and abandonment of wives for example, does also exist in the Hindu community in India, but are not treated with the same protectionist energy or rescue narratives (Abbas, 2019, p. 122).

Second, the narrative of saving Muslim women is heavily focussed on triple talaq, or other issues in which the victimisation of Muslim women is associated with or leads to the criminalisation of Muslim men. In a wider context there is a lack of concern for Muslim women. This happens on the level of policies and schemes, in which there is little interest in changing the material realities of Muslim women – for example their access to education and housing (Chantler, Gangoli & Thiara, 2019, p. 175 & Menon, 2017).

In a collective statement of Bebaak Collective (Menon, 2017), the following paragraph can be found, citing many separate incidents which illustrate the above point:

Besides, where was this government when the incidents of mass rape in Gujarat massacre and Muzaffarnagar riots were being pushed below the carpet or orchestrated? What has the government done to recuperate the lives of several Muslim families who were victims during Muzaffarnagar riots and those who migrated to neighbouring villages and towns? What did the government do when the hindutva strategies like Love Jihad were getting strengthened and anti-romeo squads were functioning in the states like Uttar Pradesh? […] Where is this verbose government when Najeeb from Jawaharlal Nehru University, Delhi went missing? Why is it being silent partisan with the JNU administration in shielding the ABVP students when Fatima Nafees, as a Muslim woman and citizen of this county, is demanding justice for her disappeared son? (Menon, 2017)

BJP’s invocation of women’s rights discourse is selective and draws on neo-imperialistic discourses of saving Muslim women from Muslim men. Invoking a rescue narrative in order to further an anti-Islam agenda can be seen as a modularity, or a phenomenon that has happened before and has been rearticulated in a different context (Farris, 2017, p. 11, 12).

The image of Muslim men as dangerous oppressors and Muslim women as passive victims is constructed upon representations and stereotypes of the other in colonial discourse (Farris, 2017, p. 5). Here we can remember Spivak’s ‘white men saving brown women from brown men’ in for example the context of sati or widow self-immolation (see 6.3). The saviour discourse regarding sati has a striking similarity with the rescue narrative regarding triple talaq. In this way, the current discourse on Muslim men and women “can be regarded as a contemporary face of a well-known western topos” (Farris, 2017, p. 11), the topos being Gayatri Spivak’s ‘white men saving brown women from brown men”, reinterpreted here as “brown men saving brown women from brown men”.

In order to explain why nationalist right-wing parties, feminists and neoliberals invoke a gender equality rhetoric combined with an anti-Islam agenda, Farris (2017, p. 8) refers to the interest- convergence theory. This theory states that a group will support another group’s fight for equal rights if the former group benefits from it (Farris, 2017, p. 8). Postcolonial theorists have argued how a rhetoric of division – us versus them – has benefitted and strengthened the colonial project (Farris, 2017, p. 11). In the same way:

In a historical conjuncture in which the theme of gender equality, like that of human rights, has become the common currency in the name of new racist and imperialist configurations of power become hegemonic, a vague, mainstream idea of gender equality can quite easily be used opportunistically by these parties to contribute to the consolidation of the nationalist project. (Farris, 2017, p. 8)

A rescue narrative “carries enormous emotive potential for large-scale mobilization” (Chatterjee, 2018, p. 385), which has beneficial effects for nationalist projects. It also reinforces the right-wing idea that the nation is superior, for example with regards to gender relations (Farris, 2017, p. 2). In the context of triple talaq, this nationalist project is a Hindu nationalist project, characterised by the Hindutva ideology which prioritises Hindu values and the building of a Hindu rashtra or Hindu state. To this Hindu rashtra, Jains, Sikhs and Buddhists will be assimilated, and Muslims and Christians are excluded10 (Kim, 2017, p. 4), striving towards homogeneity (Farris, 2017, p. 2).

BJP is argued to employ a rescue narrative and to consolidate this in policies which give the opportunity to criminalise and other Muslim men further (Sur, 2018, p. 9), such as the Muslim Women (Protection of Rights on Marriage) Act (2019) is argued to be. When taking the long history of tensions between the Hindu and Muslim community in India and the rise of Hindu nationalism into account (see 2.1), this fits perfectly into the Hindu nationalist project. While a rescue narrative indirectly helps the nationalist project, as explained above, for BJP an anti-Muslim rhetoric also directly helps their Hindu nationalist project. Stigmatising Muslim men not simply helps in advancing their political objectives, it is part of it. In other words, invoking women’s rights discourse to further an anti-Islam agenda doubly advantages BJP’s Hindu nationalist project.

In this chapter, we have drawn upon Sara Farris’ analysis of European right-wing nationalist, feminist, and neoliberalist political actors who all combine a women’s rights discourse with an anti-Muslim or anti-immigration programme. In this way, we illustrated how some patterns from Farris’ femonationalism framework can be found in the Indian context, with regards to the right-wing Hindu nationalist Bharatiya Janata Party and their discourse and policy regarding triple talaq.

In contrast to Farris’ (2017) analysis of femonationalism in Europe, the anti-Muslim agenda does not translate to a general anti-immigrant agenda. This can be illustrated perfectly by India’s 2019 Citizenship (Amendment) Act. This Act gave new citizenship rights to members of the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities who had fled prosecution from Afghanistan, Bangladesh or Pakistan, yet did not include the same rights of members of the Muslim community (Citizenship Amendment Act, 2019).

We encourage further research on other aspects of femonationalism (Farris, 2017) in the context of the Muslim Women (Protection of Rights on Marriage) Act (2019) that have not been discussed here.

10 Hindutva and Hindu rashtra are part of BJP’s ideological frame of reference. This does not mean that this Hindu fundamentalism is performed in all discourse and policies, and prime minister Narendra Modi is known for his ambivalent rhetoric with regards to for example religious tolerance (Kim, 2017).

A first aspect would be the involvement of feminists or femocrats who also combine emancipatory rhetoric with an anti-Islam or anti-immigration agenda. Here, we only discussed those women’s rights groups who oppose BJP’s anti-Muslim rhetoric. A second aspect would be the economic benefits that such a rhetoric encourages.

8. Conclusion

In the beginning of this dissertation, I formulated the following research question:

The first part of this dissertation was focussed on India’s socio-political context and the meaning of triple talaq as a divorce principle, both in Islamic law and in the Indian political and juridical context. Such a contextualisation is necessary in order to answer above research question.

The current and complex tensions between members of the Indian Hindu community and Muslim community – both highly diversified – can be explained through their shared history (see 2.1). The arrival of Islam in India is often remembered by its violent raids and conflicts, even though these mostly had an economic rather than religious character. During the British rule in India, colonial administrators made a clear distinction between members from the Hindu and Muslim community, which laid the roots for separate religious identities. Hindu and Muslim nationalisms were formed during the struggle for independence. This resulted in the two-nation theory or the idea that the British Indian region should be split in a separate Hindu and Muslim nation – which eventually happened in 1947 with the Independence and the Partition. The terrible communal violence that followed left a common mistrust between many Hindus and Muslims, conveniently played upon by the Hindu nationalist Bharatiya Janata Party.

Triple talaq is one of the many divorce principles in Islamic law but the most reprehensible and debated one (see 2.3). Islamic law is uncodified, and it is better to speak of it as the amalgamation of Islamic legal traditions and the specific interpretations made by intellectuals of different Islamic schools and jurists, summarised in fiqh or Islamic jurisprudence. Divorce itself is seen as a last resort in the Hadith and Quran. Triple talaq as a unilateral, instantaneous and irrevocable form of divorce is not recognised by many brands of Islam and outlawed in most Muslim countries.

In India however, the practice was until recently still in use. The Indian law discerns between different religious communities for family matters, and the Muslim Personal Law remains uncodified and simply refers back to the Islamic law (see 3.1). Some acts have however ensured a better protection of Muslim women’s rights in marriage and divorce. These were the result of some court cases (see 3.2) which discern key moments in the legal discussions about triple talaq and the Muslim Personal Law in India. The Shayara Bano case of 2017 led to the ruling that the divorce principle of triple talaq is

52 unconstitutional and therefore invalid. This led to the 2019 Muslim Women (Protection of Rights on Marriage) Act, which not only reaffirms this ruling, but also illegalises a pronunciation of triple talaq.

The Muslim Women (Protection of Rights on Marriage) Act added to the controversy about triple talaq in India and formed a turning point. Before the introduction of the Act, the arguments against and in favour of triple talaq were already manifold and can be divided in four themes (see 4.1). First, Islamic scholars are divided on the question if triple talaq is Islamic and if it is valid under Islamic law, based upon different interpretations of fragments in the Quran and Hadith. Second, there is the question of who can interpret Islamic law and/or Muslim Personal Law. Islamic law gets interpreted by Islamic scholars, but also by for example Muslim women activists and the All India Muslim Personal Law Board (AIMPLB). There is discussion about civil judges’ right to interpret Islamic law. Third, there is disagreement on the authority of Islamic law if it goes against constitutional and human rights of (gender) equality. Opponents of triple talaq point out the gender inequality of the practice, such as the economic vulnerability of divorced Muslim women. Fourth, opponents also point out other Muslim countries which already banned triple talaq.

In the controversy about the Muslim Women (Protection of Rights on Marriage) Act, three themes can be discerned in the counterarguments (see 4.2). First, the necessity of the Act is challenged, as the ruling of the Shayara Bano case had already made the pronouncement of a triple talaq void, and because criminalisation gives no solution to the economic vulnerability of Muslim women. Second, there are incongruences in the act, such as the provision for custody rights, which would not be necessary if no divorce found place. Third, the Act is argued to aid the Bharatiya Janata Party’s communal politics.

This, the Hindu nationalist project under the guise of women rights in the triple talaq ban, has been analysed in more depth, using a feminist theoretical framework, in the second part. Due to the limited scope of this master’s thesis I did not answer my research question in full. Instead I focussed on only one of the arguments against the triple talaq ban and on frameworks from religious women’s agency and postcolonial critiques of rescue narratives.

In order to establish the concept of religious women’s agency (chapter 6), I used Saba Mahmood’s criticism of a limited definition of agency that does not include women who conform to their religions. According to Burke’s four different approaches to religious agency, resistance agency is only one. I analysed women’s experiences in marriage and divorce and in Muslim women’s activism using these four approaches, and argued that there is a multiplicity of attitudes, which cannot be defined by resistance agency alone. For example, women from the group BMMA draw strength from the Quran, thus exercising empowerment agency in their resistance.

Using theoretical frameworks by postcolonial feminist scholars, I argued how taking away Muslim women’s agency and voices, and presenting them as victims, is a fundamental part of rescue narratives such as used by BJP in the context of triple talaq. First, Spivak has argued how the subaltern – people constructed to be the other in colonial discourse – are silenced through epistemic violence, or colonial narratives in which the voices of the subaltern are left out, their identities reconstructed in opposition to the hegemonic, and textual evidence of the original erased (see 6.1). Second, this reconstruction of identity happens through mechanisms of othering and victimisation (see 6.2). Using Mohanty’s analysis, I argued that in India, Muslim women are constructed as one homogenous group because of their shared oppression. Muslim women’s oppression is manifold, yet in communal discourse only seen as the result of their patriarchal religion, exercised by their men. Muslim women are thus constructed as passive victims of their oppressive men. Third, the depiction of Muslim women as victims in need of help provides the basis for rescue narratives (see 6.3). Rescue narratives have been challenged in postcolonial writing, most notably in Spivak’s ‘white men saving brown women from brown men’. This phrase refers to British colonial administrators and Western feminists, but can be applied on the context of triple talaq with the phrase ‘brown men saving brown women from brown men’ (see 6.4).

This alternative plays upon the evolution of Spivak’s notion to describing other imperialist and nationalist projects that make use of rescue narratives. Using Farris’ notion of femonationalism, I explained that BJP’s attitude towards triple talaq falls into this category of nationalist right-wing parties who use women’s rights discourse to further their nationalist goals (see chapter 7). This women’s rights discourse is used in the form of a saviour narrative. In the case of the BJP’s Hindu nationalism, this saviour narrative not only strengthens BJP’s superiority and furthers their nationalist goal, the stereotyping of Muslim men as criminals in such a saviour narrative also furthers their Hindutva politics. This way, BJP is doubly advantaged by their discourse and politics with regards to triple talaq.

I made a start towards answering my research question on how concepts from feminist theory can contribute to an analysis of the debates and arguments around triple talaq in India. Due to the limited scope of this dissertation I confined myself to concepts from religious women’s agency studies and postcolonial studies. Hopefully, in addition to my analysis, future scholars will also analyse this case study using different concepts from feminist theory.

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