Triple talaq: Criminality provision is very fulcrum of a much-needed reform, diluting it will kill the bill

It is bad enough that Muslim women in India have remained disenfranchised at the altar of vote bank politics. Now that a historical moment is upon us, the forces that forcefully denied over nine crore women their voice, dignity, rights and recourse to legal remedy are ganging up again to thwart the bill that makes instant triple talaq punishable by law.

Representational image. Reuters

Representational image. Reuters

The BJP has managed to pass the Muslim Women (Protection of Rights on Marriage) Bill in Lok Sabha through numerical superiority but it faces a much tougher test in the Rajya Sabha. There is every possibility that the Opposition will combine to create a hurdle in the Upper House, where the BJP lacks a majority, and try to send the Bill to cold storage.

It was the only point on which a discordant Opposition showed a semblance of unity on Thursday. If the Bill is a referred to a 'select House panel' in Raja Sabha, it would doubtless get considerably delayed and the Opposition could then claim a pyrrhic victory in denying BJP the chance to quickly push through a game-changing legislation. There might be even calls to drop the criminality clause, the key provision which makes the bill effective.

This gameplan accurately captures the levels of subversion that dominates India's parliamentary democracy.

There wouldn't have been any reason to complain had the Opposition's "reservations" against the bill in its present form been guided by a genuine need to improve the provisions. The trouble is that the parliamentary democratic system in India has turned into a battleground for subversive political strategies instead of reflecting the lawmakers' best intentions.

A much-delayed piece of legislation like the anti-triple talaq bill that addresses the concerns of real minorities within the minority population should have been a shoo-in. But the quality of the arguments being made against the legislation and the nature of the accusations levelled against the BJP leave little space for doubt that the Opposition is more interested in using the bill as a political touchstone than addressing the lacunae.

AIMIM chief Asaduddin Owaisi, for instance, called the bill a violation of "fundamental rights of Muslims" and accused the BJP of being biased against Muslims.

"Your dream of having more Muslims in jail will be achieved. Please send the bill to the Standing Committee. You are forcing a Muslim woman to file an FIR against her husband." He also claimed that "not a single Muslim country has a penal provision" against talaq-e-biddat.

Incidentally, the Supreme Court in its landmark judgment had observed that instant triple talaq goes against tenets of the Quran and pointed out that 19 Muslim countries had abolished the practice including India's neighbours Pakistan and Bangladesh. In both these Islamic states, the statutory enactments require men to issue notices and supply copies to their respective wives after pronouncements of talaq. If this provision is not adhered to, then the offenders "shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both. [Bangladesh: 10,000 taka)".

Some such as the RJD and SP claimed that behind BJP's "sudden empathy towards Muslim women" lay an effort to polarise the electorate, while some accused BJP of deliberately targeting "Muslim religious practices" to increase political capital, conveniently forgetting that the move against talaq-e-biddat rose from among the community when Muslim women — at the receiving end of a regressive practice that has remained stuck in 1937 Shariat Act with no subsequent revisions or reformations — were forced to take up the cudgels against it.

While AIMIM, RJD or BJD took direct aim at the BJP, Congress was caught in a fix. Wary of emerging openly against the bill and be clubbed yet again as a 'minority appeasement party', and warier of letting BJP walk away with the credit of ushering in a much-delayed reform in Muslim personal law that would go a long way in addressing the void in legal aid for Muslim women, the Congress has been forced to walk an ambiguous tightrope.

Under its janeu-dhari new president, the Congress has been trying to reinvent itself as a 'Hindu-friendly' party. The 'new Congress' is unwilling to take up positions that it had taken reflexively in the past. Therefore, while it did not oppose the introduction of the bill in Lok Sabha and even voiced its support on the floor of the House, the party later deployed spokespersons to issue several caveats against the bill and oppose one of its key components.

The Congress-led Opposition's key contention seems to be the criminality clause, which introduces pecuniary penalties and punishment of up to three years for issuing talaq-e-biddat through spoken or electronic means and makes it a "cognizable and non-bailable offence".

The Congress, through MP Sushmita Dev, has said that "by criminalising a civil offence, with three years of imprisonment, the government is not introducing a deterrent. There are several unanswered questions like how would the government ensure the Muslim woman's right to subsistence allowance if her husband is in jail. The law does not give any chance of reconciliation to the couple".

This view has also been echoed by Owaisi, who has blamed Union Law Minister Ravi Shankar Prasad for failing "to discriminate between civil law and criminal law."

The criminality clause is a key component of triple talaq, failing which the law will fail to serve its purpose. It must be understood that the anti-triple talaq bill doesn't just outlaw the practice but more importantly, it acts against the very threat of divorce. Muslim women have been forced to raise their voice against this draconian practice because it completely skews the balance of power in a marriage and allows men to use the 'threat of instant divorce' as a tool to coerce women, seek their compliance and rob them of all agency and human rights. This power imbalance is further compounded by the fact that Muslim women remain economically disempowered and have little recourse to legal aid.

A question might arise about the need for such a bill when a constitutional bench of the Supreme Court has already set aside the practice in a landmark judgement. The point is, in absence of legal teeth, the Supreme Court order was being violated with impunity and law enforcers remained unable to act despite complaints from Muslim women.

In Uttar Pradesh's Azimnagar, one Qasim thrashed and divorced his wife Gul Afshan through instant triple talaq for daring to wake up late in the morning, according to a report in Thursday's edition of Navbharat Times.

In his Lok Sabha statement, the Union law minister stated that the practice was in vogue even after the Supreme Court had ruled against it. "We were expecting that after this judgement, triple talaq cases would come down and situation would improve...about 300 triple talaq cases happened in 2017 and 100 were reported after the Supreme Court's judgment," Prasad said on the floor of the House. Despite several complaints from women, police failed to act because "they have no powers… Should we have asked these women to frame and display the SC order in their rooms?"

It is equally preposterous to argue that criminality shouldn't be introduced here because marriage is a civil contract. As Supreme Court advocate Madhavi Goradia Divan writes in Indian Express, "once triple talaq stands de-recognised, it falls entirely outside the realm of the civil contract of marriage. Therefore, there is no legal bar on penalising it." She cites the examples of Muslim-majority countries such as Egypt or Tunisia, where the violation of the established legal procedure invites imprisonment.

The pronouncing of a judgment does not have a deterrent effect that can only be achieved through penal provisions. The Dowry Prohibition Act, 1961, was later bolstered with Section 498A in the Indian Penal Code which carries the provision of imprisonment if the wife presses formal charges against her husband and in-laws. Zakia Soman, women's rights activist and a key figure behind the push for banning of instant triple talaq, sums it up nicely in The Print, "According to the India Penal Code, bigamy is punishable by up to seven years in jail. Similar provisions exist for dowry and domestic violence. Then why not for triple talaq? It is equally oppressive. The wife must have the right to complain about an erring husband."

Criminalisation of talaq-e-biddat might not totally abolish it, but definitely take away the threat of divorce from men and make Muslim marriages a more equitable contract.


Published Date: Dec 29, 2017 17:28 PM | Updated Date: Dec 29, 2017 17:28 PM

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