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.
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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.
Is the Govt mistaken or is it misleading? The third slide refers to the minority view of the Supreme Court judgement in #TripleTalaq case. The SC, by a majority judgement, never asked the Govt to frame a law. The #TripleTalaqBill also doesn't mention this. So why propagate it? https://t.co/8td8AezQtS— Utkarsh Anand (@utkarsh_aanand) December 28, 2017
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.
We must understand pain of Muslim women. Today morning I read news that a woman in Rampur was given talaq by her husband just because she woke up late: RS Prasad,Law Minister in Lok Sabha #TripleTalaqBill— ANI (@ANI) December 28, 2017
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.
This is a historic day, victims have suffered for years and they have been rewarded for their patience. Request all MPs to help pass #TripleTalaqBill : Shaista Ambar, All India Muslim Women's Personal Law Board (AIMWPLB) pic.twitter.com/cnVQ9Ljqmp— ANI (@ANI) December 28, 2017
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.
Asaduddin Owaisi, AIMIM President has given a notice to oppose the introduction of Muslim Women (Protection of Rights on Marriage Bill) 2017 in Lok Sabha #TripleTalaqBill (File pic) pic.twitter.com/5jDqWi9E7u— ANI (@ANI) December 28, 2017
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.
#TripleTalaqBill is a significant Bill. @INCIndia has maintained that any action to protect a woman's rights is always encouraged. However, there are some issues the bill needs to clarify like whether the burden of proof of #TripleTalaq lies on the wife: @sushmitadevmp— Congress Live (@INCIndiaLive) December 28, 2017
When the husband is jailed after Talaq, will the wife have rights on husband's property or will she be abandoned? The Bill should give clarification of these things: @rssurjewala #TripleTalaqBill #TripleTalaq— Congress Live (@INCIndiaLive) December 28, 2017
There is no doubt about the fact that @INCIndia will help the government to bolster the right of Muslim women. But the bill needs to be watertight when it comes to the financial security of women: @sushmitadevmp #TripleTalaq #TripleTalaqBill— Congress Live (@INCIndiaLive) December 28, 2017
Will the govt create a corpus to provide maintenance to divorced women waiting for compensation?: Sushmita Dev, Congress in Lok Sabha #TripleTalaqBill— ANI (@ANI) December 28, 2017
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.
The controversy is based on those who have read the draft #TripleTalaqBill say :a) the preamble does not use instant #TripleTalaq instead the #TripleTalaqBill only uses #TripleTalaq . This makes a legitimate process illegal . N— Tehseen Poonawalla (@tehseenp) December 28, 2017
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.
I don't think we can support it because they didn't made us understand how this criminality of Triple Talaq will benefit women. If someone is lodged in prison as a punishment for saying Triple Talaq, who will take care of his family: Salman Khurshid, Congress on #TripleTalaqBill pic.twitter.com/C6OgzzGH07— ANI (@ANI) December 28, 2017
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.