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Why the Triple Talaq issue is proving to be such a troubled divorce

Rajeev Dhavan
Rajeev DhavanJan 20, 2019 | 16:08

Why the Triple Talaq issue is proving to be such a troubled divorce

The repromulgation of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 by President Ram Nath Kovind on January 13 seems to keep the issue of criminalisation of triple talaq in the balance.

However, the Muslim Women (Protection of Rights on Marriage) Bill, 2018, better known as the Triple Talaq Bill, cannot be an exercise to humiliate and punish the Muslim community.

A verdict misread

On August 22, 2017, when the Supreme Court, by a majority decision in the Shayara Bano case, declared that such a divorce was illegal and void, it was an exercise in law and justice. The Chief Justice of India Justice JS Khehar declared the verdict that “by a majority of 3:2, talaq-e-biddat (triple talaq) is set aside” as the bench termed it “manifestly arbitrary.” The two dissenting judges, Justices Khehar and S Abdul Nazeer, suggested a law to declare the practice void because the judgment upheld such a divorce is required.

burqua1_011919100827.jpgReally about us? Critics says the legislation seeks to criminalise Muslim husbands, not help Muslim wives. (Photo: PTI)

The Central government is using the minority judgment to declare the practice void. The problem with the legislation is that it seeks to criminalise triple talaq (an illegal civil offence). This is totally unnecessary, except that, to my mind, it tries to punish and embarrass Muslims and please fundamentalist Hindus.

Once triple talaq was declared invalid by the court, it meant that the marriage subsisted. The husband and wife continued to be married. They continued their obligations towards each other and their children. There was no need to go further on this score.

Today, if there is no divorce amongst Hindus, Muslims or Christians, the marriage continues with all obligations. In no religion do you punish a person for attempting an intrinsically bad divorce by sentencing him/her to around three years’ imprisonment and/or fine. Whether this is harassment is another matter.

Why are Muslims being punished for attempting a divorce which is intrinsically illegal? The only possible reason, as I see it, is to garner Hindu support for the upcoming Lok Sabha elections.

The Narendra Modi government was in a hurry to pass this punitive law. It promulgated an ordinance six months before the 2019 election and two months before the mid-term election on September 19, 2018, bypassing Parliament. The ordinance is an emergency measure. What was the emergency? None, except a bill pending before Parliament since December 15, 2017.

During the Lok Sabha debate on the bill on December 27, Congress MP Shashi Tharoor, opposing the bill succinctly, asked where was the point of “criminalising a wrong form of divorce”, adding that triple talaq “is already declared legally null and void.” Tharoor deemed the legislation to be“class-specific legislation on the grounds of religion”.

Strained urgency

NK Premachandran, Kollam MP, also questioned the urgency of the ordinance. There was no answer on why the bill should not be sent to a Parliamentary select committee to hammer out issues. The leader of opposition Mallikarjun Kharge’s question also remained unanswered.

Since the government was not listening, the AIADMK staged a walkout.

The debate from the NDA benches was strident. Bharatiya Janata Party MP Meenakshi Lekhi called it a justice issue. “Whenever we are discussing subjects relating to gender justice, this is not ‘he versus she’. These are issues of human rights violation and these belong to the entire social set-up, and the entire political set-up.” she said.

All India Majlis-eIttehadul Muslimeen’ Asaduddin Owaisi demanded a division. The bill was approved for the next stage by 238 votes in favour and 12 against. Major amendments were made by Owaisi, who lost each one hands down.

talaq-copy_011919101418.jpgTime to talk. And listen: A no-discussion, brute-majority legislation is undemocratic and uncaring. (Photo: PTI)

No forced consensus

On December 27, the bill was passed by the Lok Sabha with 245 members voting in favour and 11 members opposing the legislation, as the Congress, AIADMK, RJD, SP and other Opposition parties.

On December 31, 2018, the bill was stalled in the Rajya Sabha by the AIADMK. The Congress and Trinamool Congress sought for the bill to be referred to a select committee, which was rejected on grounds of urgency.

I think that there is one issue that requires consideration by a select committee in the interest of justice. Certainly, criminalising husbands will destroy triple talaq-provoked marriages which both the Supreme Court and the bill want to preserve. There is no justice in that.

However, if the marriage subsists, the question of maintenance arises. In Mohd Ahmad Khan vs Shah Bano Begum & Ors. (1985), Muslims were told to use the normal route of Section 125 through the Criminal Procedure Code. But then, Rajiv Gandhi’s government at the time legislated the unfortunate The Muslim Women (Protection of Rights on Divorce) Act, 1986, which deals with divorced women. What about women who remain married like in triple talaq cases? Premchandran and Owaisi provided an alternative to criminalisation to seek a remedy under the Protection of Women from Domestic Violence Act, 2005. However, this was rejected by 248 votes for and 11 against. In this area, civil (not criminal) remedies need exploration.

A no-discussion, brute-majority legislation is undemocratic, unjust, uncaring and punitive against one community.

 (Courtesy of Mail Today)

Last updated: January 20, 2019 | 16:08
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