Triple talaq back on table: Recap of arguments for and against it

India is mired in a war between theology and law as it tries to articulate an appropriate policy response to the controversial triple talaq issue

At the first meeting of the new Union Cabinet on Wednesday, the government approved the Muslim Women (Protection of Rights on Marriage) Bill, 2019. If it passes the final vote in Parliament, the Act will make instant triple talaq a criminal offence that can land offenders in jail for three years.

The practice refers to talaq-e-biddat prevalent in the Muslim community, whereby men can orally divorce their wives. It is outlawed in over 20 Muslim-majority countries in the world.

The Congress on Thursday said it will oppose the revised bill in Parliament, saying a debate was needed on some of its provisions.

Triple talaq: Background on the contentious issue

The government’s move follows two years after the Supreme Court withdrew the legal status of triple talaq. It also arrives in the wake of NDA’s landslide victory in the recent general elections after which PM Narendra Modi had signalled it would improve minority outreach.

More importantly, it comes nearly a year after the Opposition blocked the passage of the draft bill, questioning the agenda behind criminalising what is already illegal.

The Bill was passed in Lok Sabha on December 27 last year with 245 votes in favour and 11 against it. However, it lapsed after failing to pass Rajya Sabha and the subsequent dissolution of Lok Sabha.

Arguments for it

Those in favour of penalising triple talaq argued that the law would act as a more enforceable deterrent for Muslim men handing out divorces and help break down the cultural acceptability of the practice.

The bill would “ensure gender equality and gender justice to Muslim women” and help in “protecting the rights of married Muslim women”, the government said on Wednesday.

“‘Sabka Saath, Sabka Vikas, Sabka Vishwas’ has been the pivot of NDA government led by Prime Minister Narendra Modi,” read a statement, adding that the government had fulfilled one of its promises.

Commenting on legal action in the triple talaq matter, social activist Amir Qureshi said it is heartening to see that the government is finally taking the right steps to earn the trust of millions of Muslim women living in the country. He added that this new act will teach Muslim men a lesson that wives are not their property and should be treated with respect and dignity.

Information and Broadcasting Minister Prakash Javadekar said, “It is the debt of humanity. It is about gender equality and gender justice.” He “expressed the hope” that, this time, Rajya Sabha will approve the bill, which allegedly garnered a lot of support during the poll campaigns.

According to an official statement, the Muslim Women (Protection of Rights on Marriage) Bill, 2019 is on similar lines of the Muslim Women (Protection of Rights on Marriage) Second Ordinance, 2019.

Replacing the Second Ordinance, which was promulgated after Congress opposed earlier versions of the bill over various issues, the cabinet approval now paves the way for the introduction of the revised bill in the upcoming session of Parliament.

If NDA 3.0 has the numbers backing the bill, this time is a different matter.

Grounds for criticism

Notably, on the day of the approval for the fresh bill, the police booked a Muslim cleric in Uttar Pradesh for allegedly giving triple talaq to his wife; this is the first such arrest in the country, setting a precedent for the future.

In fact, one of the main contentions against the proposed legislation has always been its recognition of a civil offence as a cognisable and non-bailable crime. Clause 4 of the 2017 bill stated that any pronouncement of triple talaq shall be punished for a term that may extend up to three years with fine. Only a magistrate can grant bail in such a case.

Muslims feel that the SC’s progressive judgement is being used to formulate a regressive law. The Bharatiya Muslim Mahila Andolan (BMMA), which had played a pivotal role in the campaigns against oral triple talaq, reported that the number of complaints it used to receive from women who were victims of triple talaq has come down substantially since the SC ruling.

Then, why are we still pressing forward with a law, especially one that makes easy targets out of the Muslim male population and leaves them exposed to be prosecuted at whim, without warrants or easy bail?

Women’s rights activists also argued that criminalising triple talaq may not have the deterrent effect, as Parliament desires, and, in fact, could lead to more complications.

A woman will be less likely to report, because by going public, she risks her husband getting jailed, for one. And the imprisonment would deprive the family of a stable source of income, especially for daily wage-earning families. Secondly, pressing criminal charges against the husband for pronouncing these words will not save the marriage.

A warped way of championing Muslim women’s rights

It is no secret that triple talaq is truly discriminatory and robs women of their security. In the modern age of technology, the cruel practice has been carried out via telegram, SMS, and even over WhatsApp. The triple talaq bill claims to set right this pitiable plight. 

After BJP’s landslide victory last month, Modi promised to focus on education and health, and followed it up by announcing scholarships for five crore students from minority communities over five years, with 50% reserved for girls. 

But with triple talaq back on the table, the Muslim community is torn between apparent mixed signals.

Furthermore, in its present form, the bill does not afford any improvement to women’s condition. The award of subsistence dole to Muslim women and dependent children is paltry, especially when today any married woman is entitled to reside in the matrimonial residence. Moreover, giving the woman custody of her child is also an unnecessary token action as it is already provided for by the Guardians and Wards Act of 1890.

Criminalising marital rape and improving women’s security, irrespective of religious sect, should have been a greater priority at this point.

In fact, experts posit that triple talaq could have been classified as an act of verbal and emotional abuse under the Domestic Violence Act, 2005. This would have opened up avenues to multiple reliefs, like protection against violence, right to residence in the marital home, maintenance, medical facility, and compensation, to name a few.

Zakia Soman, founder of BMMA, said, “The Cabinet clearing the Bill … requires [is] a comprehensive law on Muslim marriage that will end all kinds of injustice to Muslim women like nikah halaala (divorced woman required to marry again and consummate it to be able to return to her first husband) and polygamy.”

But isn’t equality in marriage regardless of religion?

Though Article 14 of the Indian Constitution grants all Indian citizens “equal protection under the law”, personal issues like inheritance, marriage, and divorce are regulated by personal laws. This is how the Muslim Personal Law (Shariat) Application Act, 1937 was passed.

There is also a Special Marriage Act amended in 1954. The act specifies marital laws for all people, irrespective of religious belief, and Muslims can marry under this law.

Marrying theology and law to frame policy

The marriage between a Muslim man and a Muslim woman being in the nature of a contract, the procedure to be followed in case of its breach should be civil in nature and not criminal.

The triple talaq controversy thus exposes BJP’s hypocrisy and contrarian attitudes when it comes to Hindu traditions. Last year, it violently condemned legal interference with core religious values, when it came to the SC verdict allowing women’s entry to Kerala’s Sabarimala Temple.

Also read: India debates women’s entry into mosques ‘because of Sabarimala’: All you need to know

It is a fact universally acknowledged that in “New India”, attacks against Islamic culture have been growing, with the most recent crackdown on beef and burqa.

After the Shiv Sena demanded a blanket ban on Muslim women covering their faces in public last month, lyricist and poet Javed Akhtar said the niqab (face veil) or the burqa, just like triple talaq, should be about female empowerment and not targeted at specific religious communities. Outlawing the burqa, he said, should necessarily follow a similar ban on the ghoonghat, the Hindu equivalent of a headscarf, worn primarily by married women as a show of modesty in Rajasthan.

Are the government’s intentions genuine?

The driving force behind politicising social mores lies in the ‘othering‘ of foreign cultures. Affixing criminal liability for an offence that is so obviously civil in nature has led critics to blame the government for violating the principle of proportionality and accruing “political advantage” in the triple talaq fiasco.

Soman believes that making triple talaq a cognisable offence may give rise to similar vigilantism that followed the ban on beef consumption in several Indian states.

While the Lok Sabha debated the merits and demerits of the draft bill last year, Kavita Krishnan, secretary of All India Progressive Women’s Association (AIPWA) said the law cannot be different for different communities. “Why such an offence (abandoning wives) when committed by a non-Muslim man is considered to be a civil offence and the same is being criminalised when committed by a Muslim man?” she had asked.

As critics remain passionately split over the government’s intentions, all this begs the question: Is the triple talaq bill truly a step forward for the rights of Muslim women, or does it have a long way to go in becoming a just and fair policy?

Prarthana Mitra is a Staff Writer at Qrius

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