By Ananya Sinharay
Only months back we saw overjoyed Muslim women thronging the streets in celebration. A widely circulated photo showed them distributing sweets after the Hon’ble Supreme Court of India passed another remarkable judgment, declaring the practice of triple talaq as “illegal, un-Quranic and unconstitutional”. “This is a sensitive case where sentiments are involved. We are directing the Union of India to consider appropriate legislation in this regard,” Justice JS Khehar said while announcing a six-month suspension on the practice of the divorce law. This decision did, indeed, call for celebration for Muslim women who had long argued that the practice of instant divorce violated their right to equality.
However, Monday the 19th saw hundreds of women of the same kindred, taking to streets in large numbers, chanting slogans like “Talaq Bill Wapas Lo” (roll back the Talaq Bill). As the Times of India describes it “It was a sea of black on the grounds of Teele Wali Masjid.” Their claim was that the Triple Talaq Bill, ‘draconian’ in nature, was ‘anti-women’ and ‘anti-family’.
Quite ironically, championing the female cause was the All India Muslim Personal Law Board which till date has been known to continue suppression of women’s rights under the clever rhetoric of religion. In a statement before the Apex Court, the AIMPLB submitted, “men have greater power of decision making. They are more likely to control emotions and not to take a hasty decision. Men are expected to behave thus on the following grounds”. Surely an organisation so disposed of in its views can only have the best interests in mind for women? Not.
The real bone of contention
So what is the real reason behind (the notoriously misogynistic) AIMPLB turning its coat to defend distressed women against a draconian, “anti-women” law? It has been brought under popular notice that the Muslim Women (Protection of Rights on Marriage) Bill, 2017 seeks to criminalise the practice of triple talaq in an attempt to deter the practice. Clause 4 of the Bill states that any pronouncement of triple talaq shall be punished for a term which may extend up to three years with fine. Clause seven states that the offence of pronouncing triple talaq is a cognisable and nonbailable offence. This has created a bubbling fear among the male population of being prosecuted at whim. Indeed, police officers now have the power to conduct an investigation without bringing it to the notice of the concerned magistrate. This has raised the fear of Muslim men becoming soft targets, who the police can arbitrarily incarcerate. Thus, AIMPLB’s selective concern for the women of its community stands explained.
Why it is not “anti-women”
Stripping away judicial oversight in cases of triple talaq, albeit reprehensible, is not patently “anti-women.” The word “anti-women” immediately suggests hatred, contempt or prejudice against women-kind. This hateful word only invites a reaction of deep revolt, especially from women. Hence, in its usage, one must be judicious as the word is capable of generating intense repercussions at the end of the communication chain. It is no secret that triple talaq is truly discriminatory and robs the women of their security. In the modern age of technology, the cruel practice has been carried out via telegram, instant messages, and over the phone. The triple talaq Bill claims to set right this pitiable plight. Admittedly, it has some gross shortcomings but to pass it around under the moniker of “anti-women” is misleading. It is a deliberate attempt on the part of the AIMPLB, which has been at the helm of disseminating such sentiments, to vilify the Bill. Such a stance is dangerous. In a statement, president of the All-India Muslim Women’s Personal Law Board, Shaista Amber, said, “Clerics have misguided the community for long by their wrong interpretation of the Quran. At a time when the social media and internet have bridged the divide among the people, it has also brought to light the real meaning of the verses of the Quran which term women equal to men.” Alas, the AIMPLB continues its streak. This time misinterpreting a statute instead and distorting mass opinion. Call it anti-Muslim, badly drafted, ineffectual the Bill is not free from imperfections but surely there are kinder words (than “anti-women”) to describe it.
Acknowledging inconsistencies in the Bill
It is true, the Bill suffers from some inherent flaws the most glaring amongst them being affixing criminal liability for an offence that is so obviously civil in nature. 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. However, the Bill seems to blur the peripheries of civil law and criminal law.
As already stated in an earlier paragraph, clause 7 of the Bill makes triple talaq a cognisable and non-bailable offence. A non-cognisable offence is an offence whereby the police cannot arrest a person without a warrant. Muslim husband will be prosecuted even without his wife’s assent, for pronouncing triple talaq. Moreover, as women’s rights activists have rightly pointed out: criminalising triple talaq may not have a deterrent effect which the Parliament desires. It may lead to more complications. Firstly, women will be less likely to report cases of because by going public she risks her husband is jailed. The imprisonment of the husband 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. An enraged husband will either pronounce talaq in the approved form over a period of 90 days or simply desert her as Hindu husbands do.
The Supreme Court verdict in Shayara Bano v. Union of India ruled that uttering the words ‘talaq’ thrice does not dissolve the marriage. However, quite ironically, sections 5 and 6 discuss issues such as a “subsistence allowance” for the woman upon whom instant talaq or the woman upon whom instant talaq “is pronounced” and the “custody of her minor children” as if her marriage has dissolved by the mere pronouncement of talaq-e-biddat.
Need for a balanced, secular law
However, this does not mean that the existence of triple talaq is better. The Bill should be whittled down to prevent mushrooming of more complications. At present, the Bill does not afford any improvement to women’s condition. The award of subsistence dole is ridiculously 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 provided for the same already exists under the Guardians and Wards Act of 1890.
What the legislature should have done is categorized triple talaq as an act of verbal and emotional abuse under the Domestic Violence Act, 2005 This would have opened up the avenues to multiple reliefs like protection against violence, right to residence in the marital home, maintenance, medical facility and compensation, to name a few. Instead, the Bill leaves women toothless with a set of inadequate and counter-productive tools. Moreover, the offence of triple talaq must be made non-cognisable if not decriminalised. As Zakia Soman, founder of founder of Bharatiya Muslim Mahila Andolan (BMMA), has to say, “Make it punishable by sending the man to jail but give the wife the right to complain.” This aside, a clear and uniform procedure of divorce for both men and women should be stipulated, founded upon other Quranic modes of divorce.
Conclusion
My concern is not to defend the blatantly unjust terms of the Muslim Women’s Bill. It is to refute the villainous image painted by certain outfits under the veneer of feminism. The label of “anti-women” has had the effect of casting a slur upon the legislation. The various discussions on social media surrounding the topic suggest that the main concerns of those opposing the Bill is to harp on its anti-women aspect without rationalising how it is so. The Bill has been opposed from many quarters. But none have been so uninformed to brand it “anti-women”. For example, Zakia Soman, founder of Bharatiya Muslim Mahila Andolan (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 Shalala (divorced woman required to marry again and consummate it to be able to return to her first husband) and polygamy.” Women’s rights lawyer, Flavia Agnes’ critique, published in The Wire borders, on the severely caustic. However, even she does not exonerate the legislation as being prejudicial to women. Thus, in the light of this discussion, it is time to see the triple talaq bill as what it really is: a step forward, but still a long way from becoming a just and secular legislation.
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