The triple talaq bill: A mediocre legislation and a missed opportunity

January 9, 2018 by  
Filed under India, newsletter-india

India, January 9, 2018: So far any and all criticism of triple talaq Bill has become synonymous with ‘politicising the issue’ or impinging on gender justice, thereby disallowing any real debate on what is a much needed but a poorly drafted legislation. The long fought battle of the Indian Muslim women’s movement is finally coming to fruition. For long the movement has had to battle not just the lack of political will but also the political patronage that the All India Muslim Personal Law Board (AIMPLB) has received. To add to this, some recent scholarship on the personal law (Agnes 2017, Solanki 2007, Ahmad 2016) has tried to glorify ‘alternative dispute resolution’ and Mahila Adalats as viable and even desirable alternatives to courts and legislative interventions. This scholarship failed to acknowledge how a number of women’s organisations laboured for newer laws even as they fought patriarchy outside the realm of law.

Non governmental organisations (NGO) like Association For Advocacy and Legal Initiatives (AALI) and Action Aid which frequently represent women in the all-male court structures of Dar-ul Qazas and others who train women to become Qazis are very clear in their stance that their participation in these ‘alternate dispute resolution’ forums should not be seen as opposition to legislative intervention. Others like the Bebaak Collective and Bharatiya Muslim Mahila Andolan (BMMA) who also became co-petitioners in the Shayara Bano case have sent draft bills for codification of personal law to the Law Commission of India, which detailed suggestions on codification of Muslim family law in 2017. While these organisations are opposed to a uniform civil code, they are emphatic in their demand for codification and state intervention.

It was the insistence on fighting the legal battle that allowed Muslim women’s movement to successfully challenge AIMPLB out of its self-appointed position as the custodian of the Sharia. The concerns of Muslims can no longer be contained under one label of ‘minority’. The heterogeneity within the community, whether in the form of different interpretations of religious texts or supporting different political parties has to be acknowledged and accepted.

Women’s participation has complicated what was always an oversimplified correlation drawn between legal unification and justice, that dominated the 1980s when they had to make an unfair choice between rights and religion. The movements we see today demand both, constitutional rights as well as an acknowledgment of women’s religious identity.

Yet, as one begins to un-layer the triple talaq Bill we realise what a hasty and botched up job this has been. First, the bill carries a three-year jail term for ‘pronouncement’ of talaq, which the Supreme Court has rendered void and meaningless. If the marriage subsists then what is the punishment for? There is no mention of ‘abandonment’ or ‘economic abuse’, which could justifiably attract penalties. The entire focus is on ‘pronouncement’ alone.

What makes the Bill such a missed opportunity is that unilateral talaq would continue to remain an exclusive privilege of men, as even in methods of Talaq-e- ehsan and Talaq-e hasan (where divorce takes place over three months and there are attempts to reconcile) men need not cite any grounds for divorce. A suggestion to rectify this was repeatedly made by BMMA, which sought Talaq-e-ehsan to be uniformly available to men and women but to no avail.

To admit that the bill requires amendments should hardly be seen as shameful for the government or a betrayal of Muslim women. On the contrary, the BJP’s initiative towards codification of personal law is a welcome step moving away from their general obsession with the uniform civil code. While abandonment of wives by their husbands is not exclusive to the Muslim community, abandonment through triple talaq is specific to Muslim women. The recognition of this particularity is an acknowledgment of the need for separate codification of Personal law, since a ‘uniform’ punishment in such a case would have been to apply the provisions made under the Domestic Violence Act for abandonment or Section 125 of the Criminal Procedure Code (CrPC) in case of destitution.

It is worth noting that the Muslim Women’s Protection of Rights on Divorce Act, 1986 had done precisely the same when it made a separate provision for maintenance of divorced Muslim women, other than CrPC Section 125, an irony that’s lost upon most. Abida Ahmed, a Member of Parliament in 1986 had forcefully argued, ‘In Islam the daughter is not a burden of her parents but a grace of God. She is not donated at the time of marriage’. In arguing for an alternate understanding of families where daughters are not seen as ‘paraya dhan’ but get their due share in inheritance, there is a case for not making women appear as victims reliant on marriage for survival and economic wellbeing. The 1986 Act came under severe criticism for shifting the burden of maintenance on the woman’s paternal home if the husband was unable to pay.

The new Bill holds the husband responsible for maintenance of his wife, which is understandable in a context where in most homes women exiting bad marriages continue to face stigma even in their maternal homes. However, an amendment laying down how exactly the maintenance would reach an abandoned wife then becomes necessary, if the husband faces a jail term.

It would be unfair to the women’s movement to conclude that the Bill in entirety was politically motivated but the insistence on enactment within a day and without entertaining any discussion on amendments does make the endeavour seem suspect. Similarly, while potential misuse can never be an argument against enactment of a law itself, the undue power that this Bill would grant to the police (a non-bailable offence, where arrests can be made without warrant) is not an unreasonable concern.

Most importantly, the drafters of the bill have failed to note that often when a petitioner approaches the court, it is to seek that the talaq given at whim can be disregarded so that the marriage can continue. So far as criminalisation is concerned, if bigamy, dowry, desertion can all come with criminal consequences, triple talaq should indeed be no exception, but by hanging a sword of a three-year jail term, the law not only contributes to the society’s existing anxiety over divorce but also lays down an ambiguous course of action which prolongs the marriage on paper but presumes de facto separation, if any of the clauses are to actually apply. We have to remember that it is unilateral divorce and not a speedy one that we need to oppose here. Christian women still have to wait an excruciating two years to finalise their divorce while Parsi women face a jury to confirm their divorce.

Hindu women await their right to end a marriage on grounds of an ‘irretrievable breakdown’ – a crucial bill that never saw the light of day.

– the indian express

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