A recent judgement by high court in Kashmir has sparked a debate over whether judiciary can dictate terms of divorce to the institution of Muslim marriage. Noted lawyer, Shabnam Lone gets candid with SYED ASMA about her personal experiences and the problems faced by women in Kashmir.
KL: The recent high court judgement over Talaaq as per the Kashmir’s clergy is a controversy in the making. How do you see this judgment?
SL: Professionally, I think it is a landmark judgment. It is fair and accurate. This is basically a story of a woman, Bilquis Akhtar, who has grievously been wronged by her husband and it all started on the basis that she gave birth to a girl. This has become a reason for those people [her in-laws] ousting her from her marital home along with the baby. She is from a poor family and has no source of sustenance. It was just conveyed to her that she is being divorced.
I am of a firm belief that we belong to a religion whose Prophet has shown utmost respect to his women; be it his daughter or his wives and I think his life is a mirror. I personally perceive this case as a journey of an unfortunate and a helpless woman who has been denigrated and humiliated for giving birth to a girl. I feel this is a story of other hundreds of women which have remained untold so far.
I feel this judgment delivered by Justice Hasnain Masoodi is well researched and a lot of effort has been put into it. I see it as a labour of love. It is a judgement that has untiring referencing to Quran and Hadith. In the light of that, this woman is being given justice.
If Talaaq is made an absolute right, it will make our daughters and sisters vulnerable in the sense that if a person has to adduce no reason for divorce and he can just pronounce ‘Talaaq Talaaq and Talaaq’ and the marriage is over. We, as a lawyer and as a Muslim (including the Justice Masoodi) say that it is a very extreme interpretation. If this view is allowed to persist, it will form anarchy of opinion.
KL: How do you think this judgment will help a woman to have a dignified place in the society?
SL: It will sort of help. We are not saying a man cannot give Talaaq. He can. But if you say the right is so absolute that the condition of reason is not to be fulfilled is not done. There has to be a reason for pronouncing Talaaq. I say there should be a reason. I will give you an example. If there is a couple who have been married for two years and the man sees a beautiful woman, suddenly he gets up and says ‘Talaaq Talaaq Talaaq’ to his wife and goes after the other woman. Is that the correct way?
My second example is that can you divorce your wife if she bares a girl child. Can it be a reason of Talaaq? Can Islam allow that?
KL: How do you address the issues raised on the judgement by Kashmir’s clergy? The main point that they have highlighted is that the conditions that Islam has kept recommendatory, the judgment has made them mandatory. What do you have to say?
SL: This is a myth that they have created; mandatory and recommendatory. Judge has interpreted the things in the same way as you and I would. It is simple and straight. I have great regard for them [Kashmir clergy] but I have a question for all of them. Is it right that a man makes his new born daughter a basis of Talaaq? If all of them say that it can’t be a reason of divorce, then the judgement is saying the same thing. Then they say it is not absolute, so what is wrong with the judgement? It is just the matter how you word it. Different people perceive different things in different manner.
KL: Senior lawyers have criticized the judgment and have said that the court is not authorized to comment on any religion?
SL: We have Shariat Act 2007. Then that too can’t exist. Can it? If they say the court cannot go into religious matters and I don’t think the court has gone into it, then can a legislature make a Shariat Act? That is why I am saying we need to have cohesion of opinions based on cognate reasons wherein we won’t take extreme positions. We have to understand things in proper perspective and the correct perspective is our daughters, mothers and sisters need to be treated with dignity. They need to be treated with respect. You need to have an atmosphere where they feel respected.
KL: Kashmir’s clergy believe men will misuse this judgement and it will adversely affect the dignity of a woman?
SL: You have exactly answered my question. You seem to agree to the point that we have made. This is what I am saying. Justice Kirmani will have to prove his bonafides wherein he is not the affected party. My client is the directly affected party. The first question that we have raised is whether the application that is being filed in the Bar Association or by Mr Kirmani can withstand the test of law. To my knowledge, it can’t. Both the applications should be dismissed and I will give reasons in the court. I think they have a very weak case. And I am sure they will be dismissed because under 561, they cannot seek a review. If the Bar or Mr Kirmani feels it is so, they should file a PIL before the chief justice. It may be a subject of debate but my opinion, as a lawyer, is that the application should be dismissed at the threshold.
KL: What have been your experiences when militancy was at its peak in Kashmir? You were kidnapped once and survived an assassination attempt. Tell us something about that.
SL: My journey has been very different because I was very privileged to be brought to up by a father who was very fair to his daughter. And I was always brought up by a notion that sons and daughters are equal. When militancy started, my father was in jail. I think I was the first lawyer who represented the first batch of boys [Profreedom camp] in Kashmir. Since I was from a political family and I represented many people and things got entangled, they got a bit conspiratorial. I was kidnapped and, of course, tortured and humiliated. My father and I later got to know who was behind it. But for the society, we decided that those names should not be named public. I actually do not want to talk much about myself. I want all attention should be given to Bilquis and her case.
KL: How have you used your legal expertise in helping the women of Kashmir?
SL: Yes, to a great extent. I did that in the beginning when militancy escalated. Most of the times when these boys were under detention, it was actually Kashmiri women; their mothers, daughters, sisters and wives who had never been out of their homes who were following these cases. These women suddenly behaved like tigresses and they gave me courage and joy to move forward. And what happened is that in that interplay of the complex journeys, somehow the roles changed and their fight became my fight. And I think that is something that kept me going. I didn’t realize it then what an important part of my life it was. Because you were not focused on yourself alone; you were sharing other people’s traumas and tragedies. It is now I realize that it has added so much to your own life.
KL: What are the major problems faced by the women of Kashmir in the present times?
SL: No doubt, they are getting educated and are out doing jobs but I still feel there is a lot to be done. They still face a lot of discrimination in life. I think Kashmir has been going through a cultural chaos. I think we need to change our family system. Sons and daughters need to be told from the beginning that they are equal and girls are not burden in their family. I always believe that if your family base is strong, this will lessen the cultural chaos. Particularly brothers should be very respectful to their sisters. There is no need for unhealthy competition. I have myself gone through that discrimination, not through my parents, but through my brothers. Somehow I believe they were part of the society and could not come up to my father’s level. I managed to break all those barriers meant for daughters and sisters.
KL: Being a woman, how has your journey been so far?
SL: It is sometimes terribly upsetting. My journey has been very bumpy. They say God helps those who help themselves. I had a tremendous faith in my religion. I faced challenges within the family. It seemed I was traversing a path which wasn’t meant for girls. It all started with me going to Aligarh and my brothers said girls can’t be study and send to Aligarh. They can’t stay in a hostel. But my father, a great man, supported me all through. My mother and I got an unqualified respect from him. Two years before his assassination, he had written a letter to me from America in which he addressed me as Mohtarama Shabnum Lone Sahiba. That is the sort of respect I got from my father.
I had a lot of trouble coming to the court. When I joined the Bar, I just thought what battle of Panipat must have been like. We had such a terrible showdown at my house. It was like as if it was a curfew in the house. I was such a good student and I just wanted to present my case. I could never realize my fault. So, the first six months when I came to the court, each day was a struggle at home. One day, I was told the car is not home. The other day, they said the keys are missing. I used to board a mini bus.