Bulldozing triple talaq bill in Parliament is unconstitutional and disservice to Muslim women

Criminalising Muslim men for a civil offence is gross abuse of human rights.

 |  8-minute read |   28-12-2017
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The bill to criminalise instant triple talaq, officially known as the Muslim Women (Protection of Rights on Marriage) Bill, 2017, was tabled in Lok Sabha today, December 28, by the Union minister of law, Ravi Shankar Prasad. Effectively, the bill criminalises talaq-e-biddat, or the practice of instant and unilateral triple talaq from the Muslim husband to the wife, and punishes the husband with a jail term of maximum three years as well as by imposing a fine.

The bill has been drafted in three months after the landmark Supreme Court order declaring instant triple talaq and “unconstitutional and void”, in a case that hogged the national headlines for months and was led by Muslim women themselves.

Memorably, one of the senior advocates fighting the case, Indira Jaising, on behalf of the petitioners, particularly the Bebaak Collective, had termed instant triple talaq a “civil death for a Muslim woman”.

Concern from Muslim women activists

However, the very activists and Muslim women and groups at the forefront of the movement to make the Supreme Court strike down instant triple talaq, have expressed grave concerns about the bill floated by the government. Both the Bharatiya Muslim Mahila Andolan and Bebaak Collective representatives have called into question the aim of the bill to criminalise a civil wrong - that of terminating the marriage, a civil contract under Muslim law, unilaterally and instantly - and punish Muslim men and sending them to jail. This not only changes the nature of the marriage contract - a civil agreement between the husband and wife - but tries to interpret as a sacrament, indissoluble.

What the government says

The government, particularly Prime Minister Narendra Modi as well as Union law minister Ravi Shankar Prasad have sought bipartisan support for the bill, which ironically has been made with minimal to nil consultation with the actual stakeholders. Union minister Prasad has cited Islamic countries where instant triple talaq is banned has nevertheless omitted the fact that it’s not criminalised anywhere either, and continues to be a civil and unconstitutional wrong.

There’s also the point that the government has taken the minority view in the SC judgment (which asked the Centre to frame law on the issue, and held that it was valid under Islamic law) and pinned its argument on the dissenting judgement by the then chief justice JS Khehar.

Expectedly, the Narendra Modi government has been staking its reputation on what it claims is a “historic” bill, while law minister Prasad talking about the “pain of the Muslim women”, and that this government wouldn’t repeat the mistakes of the Rajiv Gandhi-led Congress government when it overturned the landmark Shah Bano Begum judgment in 1985.

Some members of the All India Muslim Women’s Personal Law Board have welcomed the bill, saying this would help redress the victims of instant triple talaq.

Opposition to the bill

However, clamours of resentment were heard from a number of legislators from the political Opposition, particularly the AIMIM, RJD, BJD, All India Muslim League, among others. AIMIM’s Asaduddin Owaisi, a barrister himself, has led the charge of the light brigade against the bill, saying violates the fundamental rights of Muslim men and lacks legal coherence. This view has been echoed by a number of legal luminaries, who are expert at Muslim Personal Law as well as the Indian Constitution, in addition to the advocates fighting the triple talaq case in the court.

The Congress has taken a guarded approach, selectively supporting the bill, while questioning what it says are inconsistencies and lack of clarity within the bill itself, including on the subsistence allowance, burden of proof, among other issues.

In addition, in the preamble of the bill, the confusion over istant triple talaq, now outlawed by the Supreme Court, and triple talaq, the Islamic way of mutual divorce that’s perfectly valid, has been spotted, causing much alarm among observers and the political Opposition.

Congress leader Salman Khurshid has underlined that the bill doesn’t benefit Muslim women and instead sends into further financial and social insecurity by jailing their errant husbands. Women’s rights activists have pointed out that the penalising might discourage reporting of instant triple talaq, or worse still, may lead to desertion of the wife by the husband without technically giving instant triple talaq.

Bulldozing the bill

There are also concerns that the government isn’t giving enough time to deliberate on the crucial bill that’s riddled with problems. It has been pointed out that Prasad’s insistence that the bill be passed in Lok Sabha today itself has caused a justified uproar in Parliament, with the Opposition leader in Lok Sabha, Mallikarjun Kharge asking for more time. It must be said that the government’s intention to score political points must not override what is going to be a matter of life and dignity of Muslim women and men.

Also read: How three judges struck down triple talaq, but upheld Muslim personal law

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