SEEMA MUSTAFA | 24 DECEMBER, 2017
The move to criminalise triple talaq, is not just against the men, but the women too
NEW DELHI: The BJP government, riding piggyback on the Muslim women’s movement for the abolition of triple talaq, has sought to go a step further with the Bill just tabled in Lok Sabha wherein it has proposed the criminalisation of instant triple talaq. And included a proviso where a man found guilty of the same be sent to jail for a three year non-bailable term.
This has raised a furore amongst women’s groups with the All India Democratic Women’s Association and Bebak Collective issuing strong statements against the composition of the Bill, fearing that this will prove counterproductive for the very women it claims to protect.
AIDWA has recommended that the Bill be sent to the Standing Committee of Parliament for further discussion and modifications, before being considered by the two Houses of Parliament.Needless to say the government has not responded to this demand and the Bill is expected to get a nod from the BJP majority Lok Sabha, before it goes to the Rajya Sabha.
There is no doubt that triple talaq is a practice that has for long hounded Muslim women. It has been an issue of concern for all secular women’s organisations who have been fighting for parity in all religious laws. It has been taken up by Muslim women groups as well with the support for the abolition of triple talaq now cascading into a movement.
The courts have helped as in the Shayara Bano case where the Supreme Court in a good judgement declared this unconstitutional, but also focused on the arbitration process between the husband and the wife to see whether the parties could get back together. And also to determine, if divorce is seen as inevitable, the full rights of the wife and the children.
This new Bill is tacky at first glance, badly framed, almost deliberately so. At second, worrisome as it seems to rest on criminalization and a jail term for the Muslim man. Given the current environment, this becomes even more sinister, as the man can be locked in jail for a mere allegation of triple talaq, until proven otherwise. As lawyers point out, given the backlog of cases pending before the courts and the questionable approach of the ruling dispensation at the centre, the man without the resources to hire top notch lawyers might find himself in jail for far longer than the three years prescribed.
The misuse of the law is thus a real worry, and has been underlined by many lawyers spoken to by this writer.
The second is that the woman will find herself in a situation without the maintenance and rights that the law is supposed to provide. If the Muslim man is in jail, the maintenance will be directly impacted with destitution then staring her in the face.
The women’s movement had been asking for a codification and a law that strengthened Muslim Women’s rights, not a law that criminalises a social practice in a manner where it seems to be actually encouraging a confrontation between the Muslim man and the woman. There are sufficient laws under the Criminal Code where a man, Muslim or any other religion, can be booked for cruelty. This proviso is thus fraught with serious consequences that contradict the concept of empowerment. And make the Muslim man unnecessarily vulnerable to a charge he might not even be guilty of. By the time his innocence is proven, the jail term as we have seen in the case of the hundreds of alleged terror accused, might stretch into decades with a lifetime lost.
There has to be a difference in a law, between instant triple talaq and domestic violence. The first is a social malpractice that needs to be checked with social awareness at different levels, hastened with a realistic and yet deterrent penalty or a fine if the man does not pay the stipulated maintenance for his wife and children. But to criminalise this with a non-bailable jail term raises questions about intent, and more so in the present context where those who have made videos of themselves attacking and killing members of the minority community are released on bail or not even arrested. And are felicitated and lauded openly by right wing groups, as heroes.
Only the very naive, or the very stupid, or the diabolical can today argue that gender justice can be possible without secularism, or secularism exist and thrive without gender rights.
The very fact that the courts could declare triple talaq unconstitutional is recognition of the amazing struggle of Muslim women themselves. A key contributor was the Bharatiya Muslim Mahila Andolan, along with other organisations of course, that worked ceaselessly on the issue of Muslim women rights, with triple talaq being core to this. The BJP is trying to take credit for a movement in which it has had little more than a regressive role, in that as pointed out in earlier columns, communal violence tends to push the process of reform back. Over and over again with 1992 and 2002 being two cases in point where women on the threshold of victory on gender justice, were pushed back by renewed resistance from within the vulnerable and terrified community.
The Bill, thus, is violative of the very nature of the movement that rested on women’s rights without compromising the men, or turning them as now proposed, into criminals. It is also against the tone and tenor of the Supreme Court judgement on the issue. It is full of legal loopholes, ill thought out, and needs proper scrutiny before being finalised into a document that responds to the real issues, and does not create fresh controversies.
The government had spoken of discussion on the issue that has not happened. It is thus imperative for a parliamentary standing committee to look at the bill afresh, invite expert opinion, draw responses from the women's groups, and then reframe the Bill so that it can save the women from the consequences of triple talaq without opening doors for the arrests of men as criminals, without bail.
Interestingly, the All India Muslim Personal Law Board that has been in confrontation with women for decades now on the abolition of triple talaq has now decided to remain silent on the Bill. Last heard from the Board that has done great harm to the Muslims with its regressive views over the years, is “considering” the Bill.This seems to confirm whispers in women’s corridors that the Board has always done good business with ruling establishments of all political colours. It is only the Muslim women it has consistently opposed.