How triple talaq ordinance could make ‘political football’ of a crucial Muslim cause

The timing of the Union government’s ordinance making instant triple talaq an offence is political. It is yet another wake-up call for the Muslim clergy and NGOs like the All India Muslim Personal Law Board (AIMPLB) to socially weed out the corrupt practice, and accelerate the pace of social reforms within the community.

With five assembly polls round the corner and battle-lines for 2019 Lok Sabha polls drawn, the ordinance is set to ruffle many feathers, face legal challenges and cause disquiet at the societal level.

This is evident from the reaction of the principle Opposition party, the Congress, left-liberals like Kavita Krishnan, and Muslim leaders such as Asaduddin Owaisi. 

In August this year, an amended draft bill called Muslim Women (Protection of Rights on Marriage) Bill 2017 failed to clear the Rajya Sabha, amid disagreement within parties. 

A statement from AICC media department chairman Randeep Singh Surjewala said: “Modi government not making this an issue for justice for Muslim women, but making this into a political issue… Narendra Modi and BJP have become habitual offenders of using the issue of ‘Instant Triple Talaq’ as a ‘political football’ for ‘vote garnering’ rather than ensuring the welfare and subsistence of Muslim women.” 

The Congress, while opposing the custom of instant triple talaq, wondered why the NDA government did not bring any legislation or ordinance to ban instant triple talaq between May 16, 2014 — when it was sworn in — and August 22, 2017, the day a Supreme Court judgement in the Shayra Bano Vs Union of India case declared the practice as illegal and unconstitutional. 

AIMPLB executive member and AIMIM leader Asaduddin Owaisi was more direct, terming the ordinance against Muslim women. “This ordinance will not provide justice to Muslim women. In Islam, marriage is a civil contract and bringing penal provisions in it is wrong,” Owaisi said. 

Rights activist Kavita Krishnan, while admitting that instant triple talaq should not be recognised as divorce, asked why a Muslim man should be punished with a jail term for attempting a divorce in a legally invalid way.

A number of NGOs and activists working with Muslim women are according a lot of importance to the lack of clarity on subsistence for the divorced woman, and also for the children born out of the marriage. While the divorced woman will be entitled to subsistence, the government has neither defined 'subsistence' nor quantified the amount.

Owaisi, himself a lawyer, has reacted angrily on the issue, saying, “In which world is this government living… he [husband guilty of giving invalid divorce] will be in prison and he will give allowance?”

Surjewala, too, asked, “What is the definition of subsistence allowance for Muslim women and children? What is the method of calculating it and how would it be quantified? Will subsistence allowance be in addition to maintenance granted to a Muslim woman under Section 3 and Section 4 of The Muslim Women (Protection of Rights on Divorce) Act, 1986, will such ‘maintenance’ be deducted from the subsistence allowance, or will a Muslim woman be entitled to only one of the two?”.

Experience has shown that not many divorced Muslim women received maintenance allowance from the Muslim Women (Protection of Rights on Divorce) Act, 1986, which had stipulated maintenance to come from Waqf boards and blood relatives of the divorced woman. 

Away from media glare, the Muslim society is gearing up to deal with the ordinance, which makes pronouncement of instant triple punishable with a jail term of up to three years and a fine.

In various mosques across the country, imams during Friday congregations have been dissuading men from pronouncing instant triple talaq. The men are also being advised from the pulpit to ask their sisters and women relatives not to report instant talaq incidents to the police, and approach a local qazi for “justice.”   

As per Union law minister Ravi Shankar Prasad, between January 2017 and September 2018, 430 cases of instant triple talaq have been reported. He added that 229 cases were reported before the Supreme Court judgement, and 201 after it. “The core component of this Ordinance is that an offence will be cognizable only when the FIR is filed by the victim wife or her close relations by blood or marriage,” Prasad said. 

For many well-meaning Muslims, the row over instant triple talaq, resulting in an ordinance and punishment, is a result of community leaders’ and clergy’s failure to keep pace with changing times. 

After all, as per Islam, triple talaq (even as standard procedure) is a most despicable, reprehensible act.

A recently released consultation paper on ‘Reform of Family Law’ by the Law Commission has recommended religion-wise amendments in Hindu, Muslim and Christian personal laws to end discrimination against women and make civil laws gender neutral. 

The law commission report, prepared by its chairman, retired Supreme Court Judge BS Chouhan, has ruled out application of a uniform civil code. Rather, it has observed that it is neither necessary nor desirable to have one set of laws applicable to all citizens of the country in civil matters such as marriage, divorce or inheritance. 

The law commission report has made three notable recommendations regarding Muslim Personal Law.

1. Codify Inheritance Law: A complete code, i.e., Muslim Code of Inheritance and Succession, applicable to both Sunnis and Shias, may be formulated for the sake of clarity. This would entail abolition of the Muslim Personal Law (Shariat) Application Act, 1937. In practical terms, this may be a tricky issue both at political and societal level. It may be recalled that attempts to codify Muslim Personal Law (Shariat) Application Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 were made in the Nehruvian era, with an idea about creating a Muslim Law Committee. However, this was later dropped owing to opposition within the community. It was then left to the judiciary to offer progressive interpretation of Quranic texts.

2. Adultery should be introduced as a ground for divorce through an appropriate amendment to the Dissolution of Muslim Marriage Act, 1939. At present, as per the Muslim law, a wife can obtain khula, or divorce, on grounds of the husband’s impotency, being missing for a prolonged period, failure to provide maintenance, failure to perform marital obligations, imprisonment of over seven years, etc., but not on grounds of adultery.

It is important that men and women both have access to the same rights and grounds for divorce. The Act, 1939, should also contain ‘adultery’ as a ground for divorce and should be available to both men and women.

3. The Nikahnama (marriage contract) itself should make it clear that polygamy is a criminal offence and section 494 of the Indian Penal Code (IPC) will apply to all communities. This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives, which is unfair. Since the matter is subjudice before the Supreme Court, the Commission has reserved its recommendation.

It is time for the Muslim community and its leaders to make earnest efforts to accept the sane advice given by Justice Chouhan, instead of allowing themselves to become a “political football.”  

Also read: Muslims as ‘minority’: What has the tag meant for the community, and for India’s politics