New law to ban Triple Talaq this Winter Session: Five pointers Modi govt must keep in mind while drafting bill
However, even before the court's ruling on Triple Talaq, voices from within the civil society and various women's body in the Muslim community have been demanding a overreaching law which would accommodate the concerns of the heterogenous Muslim society, without overtly fiddling with their religious tenets.
The BJP-led central government is planning to introduce a new legislation to outlaw instantaneous Triple Talaq, the Muslim way of divorce which is said to be still in practice despite the Supreme Court striking it down in August.
The Narendra Modi-led Centre has appointed a ministerial panel to frame a law which would make instantaneous Triple Talaq an offence, in keeping with the apex court's judgement, which had banned the practice for six months and asked Parliament to bring in a law to that effect.
However, even before the court's ruling, voices from within the civil society and various women's body in the Muslim community have been demanding a overreaching law which would accommodate the concerns of the heterogenous Muslim society, without overtly fiddling with their religious tenets.
Farah Faiz, a Supreme Court lawyer who was also a petitioner in the case said, "The judgment is favourable but the government needs to implement a concrete law to lay down the punishment that will be handed out to the offenders. Unless that is in place, I consider this a 'half-victory'. The law should be framed without any interference of political ideologies and must take effect urgently."
"Now, Muslim women will be able to enjoy their fundamental rights and have a codified law that will guarantee them their fundamental rights. Just like the Hindu personal law which has legal backing, the law for muslims should have the same," Noorjehan Niaz of the Bhartiya Muslim Mahila Andolan (BMMA), and another petitioner in the case said.
Govt must keep UCC debate away from anti-Triple Talaq law to bring all parties onboard
Even though Muslim women activists and various other organisations have voiced support for a legislation, the Centre's move will also open a new line of argument over subjects like reforms in Muslim marriage and divorce law simmering in the backdrop.
The fact that the BJP's ideologial position has long been to support a Uniform Civil Code, has pushed the Muslim society to tread a cautious path as it fears that the saffron party may attempt to resurrect the debate on UCC in the garb of a new legislation on triple talaq.
Muslim women’s groups are also apprehensive that the BJP’s attempt to politicize this entire debate could well result in their facing a fundamentalist backlash within the community. “We find the fact that the BJP is trying to link this entire issue to the demand for a Uniform Civil Code very problematic. I find the questionnaire prepared by the Law Commission extremely problematic. It is obvious the government wants to open a debate on the entire issue of UCC but this is not the way to do so, especially since they want the answers in a 'yes' and 'no' format."
However, to avoid the tricky area, which would predictably pit most non-NDA parties against the bill, the government must avoid "obsessive focus" on select cases of gender injustice that Muslim women encounter.
As argued in this Firstpost article, the BJP's zeal for reforming Muslim Personal Law is precisely why many, particularly in the Left-liberal space, mute themselves on the issue. They feel their support for personal law reforms will eventually get hitched to the BJP's anti-minority politics.
Even in the Supreme Court verdict, the then Chief Justice of India JS Khehar was considerate of the religious views. The lawyers in the Triple Talaq case also used tenets in Islam and Quran's versus to argue the case, according to DNA. Therefore, the government must keep in mind the religious reservations of the community and their representatives in framing a law.
Men's unilateral right to divorce women should be looked into
Tufail Ahmad points out to the problems with unilateral divorce rights of a Muslim man in this Firstpost article.
"The unilateral divorce by a Muslim husband happens because Muslim husbands are not permitted to go to court to effect divorce — and also because the right of divorce in Islam belongs to the husband, not to the wife. Accordingly, a Muslim wife in India can seek, not give, divorce either through a court or through Islamic clerics."
The article also points out the nuance between instant Triple Talaq and other variations of it. While the version which was addressed in the Supreme Court judgment relates to pronouncing 'Talaq' three times in one sitting, either verbally or through various written media such as phone call, letter, WhatsApp, Skype, SMS and the likes. The other is to pronounce a 'Talaq' each over three months.
Another Firstpost article points out that the practice of Islamic talaq-e-sunnat still holds, which means that the Muslim men still hold the right to pronounce divorce against their wives without resorting to legal action. While the struggle of women to move the apex court was rewarded, this verdict does not change the dynamics of gender parity," the article points out.
Therefore, the new law must take into account all such loopholes, before drafting punitive action against the practice.
BMMA's draft Muslim Family Law
The BMMA has propounded its own draft of the Muslim Family Law, which it claims was drafted by consulting thousands of citizens and community members.
The Muslim women's body holds that Talaak-e-Ahsan should be the only legal method of divorce, where arbitration is mandatory and unilateral or one-sided instant divorce by husband is not valid.
Their draft not only contemplates on the issue of divorce but addresses various other concerns relating to lack of gender parity in the Muslim personal law.
Zakia Soman, a petitioner in the case and a member of BMMA writes, "This draft stipulates that the legal age of marriage of a Muslim woman and man is 18 and 21 years. It prohibits polygamy, nikah halala and muta marriage. It suggests that minimum mehr (a mandatory payment promised to the bride at the time of marriage) amount must be equivalent to annual income of the groom."
Their version of the law also has some suggestions to offer on the subject of a child's custody in event of a divorce. The draft states that the mother and father would be the natural guardians of a child, however, the custody of children should be decided keeping in mind the best interest of the child and the child’s consent.
The draft law also advocates for the wife to get a share in the marital property and states that daughters must also get equal share in the parent’s property.\
Invite all stake-holders to form new law
Former Chief Justice of India JS Khehar and Justice Nazeer in their minority verdict expressed hope that the Centre's legislation will take into account concerns of Muslim bodies and the Sharia law. The court, in its judgement had asked all the stakeholders to come together and frame a new law. The court has questioned the practice of triple talaq on a constitutional ground and called upon all the parties to establish a gender sensitive legal framework to deal with the issues faced particularly by Muslim women.
However, the government must also bear in mind that bodies like the AIMPLB are not the sole representatives of the Muslim community. Islam is not mnochromatic and their are subsects and other communities like Shafais, Ahle Hadees, and Ahmadiyyas who hold different sets of beliefs on the issue. An all encompassing law on Islamic practices of divorce would affect these sects too, therefore there voices must also be included in the narrative.
Take a leaf out of other Islamic Nation's law books
Several other Islamic nations, including India's South Asean neighbours like Pakistan and Malaysia have already reformed their divorce laws. While all these countries have their own versions of the legislations, an overreaching pointer has been to ensure that there is an intervening period between the pronouncement of divorce and that the separation is revocable until its final pronouncement.
Egypt, for example, follows the provision that pronouncing talaq once, twice or thrice, explicitly or implicitly, shall count just one talaq (al-talaq al-wahidah). It also enjoined that such a divorce is revocable except in the case of triple talaq pronounced in three different sittings — one in each period between menstruations.
Tunisia and Algeria, meanwhile, do not recognise any form of divorce pronounced outside a court of law. The Article 32 of the Tunisian Code of Personal Status enjoins: "No divorce shall be decreed except after the court has made an intensive inquiry into the causes of the marital conflict and has failed to reconcile between the two marriage partners". This comprehensive reform in the divorce law was brought in Tunisia in 1956.
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