Five Points on Triple Talaq: Critics like Arfa Khanum Sherwani opposing Triple Talaq Bill have no real ground

Instant divorce among Muslims is a barbaric practice that's been effectively banned. Naysayers to the Triple Talaq Bill have no real stand, except for an apparent dislike of the BJP.

 |  6-minute read |   01-08-2019
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I was shocked recently to read the tweets and statements of Arfa Khanum Sherwani about the Triple Talaq Bill.

I had earlier thought she was an enlightened person and would support this Bill — instead, she has castigated and flayed it furiously.

Ms Sherwani also apparently resorts to whataboutery by asking why similar criminal laws have not been made for abandoned non-Muslim women.

So, let me answer her point by point:

1). The barbaric practice of triple talaq prevailed only among Muslims (till it was declared illegal by the Supreme Court in the Shayara Bano vs Union Of India case in 2017). The lives of hundreds of young married women were destroyed by it. 

Let me give an instance I am closely aware of.

A young Muslim girl, whose family I personally know, was married to a young Muslim man living in England, who came to India for the marriage. After the marriage, he went back to England alone, saying that he would soon arrange for the girl to join him in England. However, a month or two later, he sent a letter — pronouncing triple talaq.

The devastated girl almost committed suicide.

main_muslim-women-in_080119042057.jpgDumped: Young women, often with small children, are left without anything to fall back on following triple talaq. (Representational photo: Reuters)

Hundreds of similar examples can be given of many young women, often with small children, who were deserted by their husbands after giving triple talaq — frequently enough, by phone, letter, email or WhatsApp.

Let me give another example.

When I was a judge of the Supreme Court, a case came before a bench of which I was a member.

In Odisha, there was a young Muslim couple with three small children. One night, the husband consumed alcohol and in an inebriated state, pronounced triple talaq to his wife. There was no one else in the room when this happened, so no one except the man and his wife knew of it.

However, about a month later, the wife unwittingly narrated the incident to a friend, who conveyed it to someone else, and the word spread — ultimately reaching the ears of the local Maulvi. The Maulvi pronounced that the couple were no longer husband and wife and could not live together.

Thereupon a furious mob of Muslims reached the couple's house and told them to separate.

The wife's tearful pleas that she had small children and nowhere to go were of no avail. A PIL in the Orissa High Court was rejected, and thereafter, an appeal came before my bench in the Supreme Court.

I said that this was a civilised country, and everyone here has to behave in a civilised manner. How was it anyone's business whether the couple lived together or not? To the objection that the Sharia did not allow the couple to live together after triple talaq, I replied that the Constitution prevails over the Sharia, and having said so, we directed the police to provide all protection to the couple.

2). Ms Sherwani calls triple talaq a regressive and medieval practice — yet, she opposes the Bill saying that it is a civil matter, so why criminalise it?

Like Asaduddin Owaisi earlier, she says that the Supreme Court had already declared the practice unconstitutional — so what was the need for this Bill? However, it seems she conveniently overlooks what was said by the Union Law Minister, Ravi Shankar Prasad, in Parliament — namely that even after the Shayara Bano judgment, 345 cases of triple talaq have been reported in the country as of July 24, 2019.

So, some teeth had to be given to the verdict to stamp out this evil practice and instil fear in the hearts of Muslim men who were not willing to accept the Supreme Court’s decision.

Also, there is no Constitutional bar to criminalising social evil.

3). It is being asked that if the husband is sent to jail, who will provide for the wife?

But if this logic is accepted, then no married man should ever be jailed — even if he commits murder, dacoity, rape or robbery.

In these cases too, the wife will presumably starve if the husband is sent to prison. A man killing his daughter because she married outside caste or religion, or killing his daughter-in-law for dowry, for instance, should not be sent to jail if he is married. A married policeman should not be punished also for a fake encounter.

 A law may have an incidental evil effect — but that does not mean that the law should not be enacted.

main_triple-talaq-ce_080119042751.jpgNo, they're not wrong: Muslim women celebrate after the Rajya Sabha passed the Triple Talaq Bill on Tuesday. (Photo: Reuters)

4). Ms Sherwani also criticises the Bill because no law criminalises non-Muslims who abandon their wives.

The reply to this is that triple talaq was only prevalent among Muslims. It is well-settled that a law enacted for the achievement of a particular object need not be all-embracing. Just because certain categories would stand on the same footing as those covered by the legislation are left out would not make the legislation discriminatory or violative of Article 14, vide Sakhawat Ali vs State of Orissa, AIR 1955 SC 166.

The legislature may address only the aggravated forms of mischief, vide Ramkrishna Dalmia vs Justice Tendulkar, AIR 1958 SC 538. The legislature is competent to reform gradually, applying the legislation in the first instance to objects according to the exigencies of the situation, or where it perceives an evil to be the greatest, vide Biswambhar Singh vs the State of Orissa, AIR 1954 SC 139.

So, even this whataboutery has no legs to stand on.

5). To my mind, Ms Sherwani's real opposition to the Bill seems to be because it was moved by a BJP government. But should a good measure be opposed just because of this?

I am no supporter of the BJP (or the Congress or of any other party).

But, in my opinion, a good move by anyone should be supported.

Also read: Nothing Selective About It: Triple Talaq Bill does not criminalise Muslim men. Like dowry, it simply punishes those breaking the law

Writer

Markandey Katju Markandey Katju @mkatju

Former Judge, Supreme Court of India and former Chairman, Press Council of India.

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