The government is intending to override a well-established norm that laws for minority communities must be enacted after holding discussions with community leaders/representatives, legal experts, and other stakeholders, and after striving to reach a consensus, by tabling the bill to criminalise triple talaq. Behind this hasty move is the formulation that the Muslim woman must invariably be projected as devoid of rights and lacking agency, and the Muslim male as premodern, lustful, polygamous, and barbaric.
The bill to criminalise triple talaq was tabled in Parliament on 28 December 2017 and it was clear that the government had moved in great haste to formulate it. While the Bharatiya Janata Party (BJP) wants the bill to be passed in the Rajya Sabha so as to claim the credit for ensuring Muslim women their rights, the opposition parties have protested the penal provision in it, arguing that triple talaq is a civil matter and should not be turned into a criminal offence.
There is no doubt that Parliament has the legislative competency to enact a law regulating marriages and divorces of minority communities. The Narendra Modi government, which has an overwhelming majority in the Lok Sabha, also has the required numbers to pass the legislation. However, the ethical issue involved here is whether this Parliament—which has the least representation of Muslims—has the moral authority to enact a law without a public debate and without arriving at a consensus from the representatives of the community. The government is intending to override a well-established norm that laws for minority communities must be enacted after holding discussions with community leaders/representatives, legal experts, and other stakeholders, and after striving to reach a consensus.
It is obvious that the government does not feel the need to walk this path, as the minority view in the constitution bench verdict delivered on 22 August 2017 in the triple talaq case (Shayara Bano v Union of India) had, while declaring triple talaq valid, ruled that the issue falls within the domain of the legislature and had urged the government to enact a law to outlaw instant triple talaq. This mandate from the Supreme Court has been invoked by the government to justify the proposed bill. However, since the majority (three judges) had declared triple talaq invalid, as per Article 141 of the Constitution, this has become the law of the land. Hence, a legislation as mandated by the minority view is not warranted. In any case, the mandate was to formulate a law to invalidate triple talaq and lay down the procedure for a valid talaq that falls strictly within the realm of civil law. Nowhere in the entire judgment is there even a hint regarding the criminalising of triple talaq.
Soon after the judgment, the government had announced that since triple talaq had been declared invalid, there was no need to enact a statute (Times of India 2017a). But thereafter, there seems to be a change in the officially declared position. The government claimed that the law was needed because the practice continued despite the Supreme Court verdict. The statute is in line with the image projected by Prime Minister Modi of being the saviour of Muslim women in his election campaigns in Uttar Pradesh.
It is indeed ironic that Modi, who has chosen to remain silent on the issue of the lynching of innocent Muslims by cow vigilantes and Hindu extremist organisations, has time and again commented on the plight of Muslim women who are victims of triple talaq (Times of India 2017b). He has done so while maintaining a studied silence over several issues confronting Hindu women. In this dichotomy lies the clinching evidence of the political motive behind enacting a law to criminalise triple talaq.
The Bharatiya Muslim Mahila Andolan (BMMA), which spearheaded the campaign against triple talaq, is, perhaps, experiencing a sense of achievement as this has been its most successful campaign. The organisation had earlier conducted a study on the impact of the Sachar Committee report on the ground. Had it sincerely followed up on the recommendations contained in the report, alongside its campaign against triple talaq, perhaps the BMMA’s demands may not have been so easily acceded to by the government.
The organisation had released a report titled, “Seeking Justice Within Family,” in August 2015, based on interviews with 4,710 women from marginalised sections and flagged instant triple talaq (along with polygamy and nikah halala) as the pressing concern of Muslim women, overriding concerns of poverty, illiteracy, marginalisation and denial of access to public resources (Niaz and Soman 2015).
The instant publicity given to this report by the media led two judges of the Supreme Court, who were hearing a case of a Hindu woman’s inheritance rights (Prakash v Phulavati 2016) to make a reference to the chief justice of India to constitute a special bench for examining discriminatory practices which violate the fundamental rights of Muslim women. Such a move was unheard of in the legal history of the Supreme Court. This suo motu reference came to be titled as “In Re: Muslim Women’s Quest for Equality.” A few months later, Shayara Bano filed a writ petition, though her case, which was already under litigation, did not strictly fit the bill of instant triple talaq as she herself had resisted her husband’s petition for restitution of conjugal rights (Agnes 2016).
Even as this case was pending, the founders of BMMA wrote a letter to the Prime Minister, in December 2015 seeking his intervention to bring in a new legislation to protect Muslim women’s rights (DNA 2015). This letter also seemed to provide the government with justification to legislate on issues concerning the Muslim community without seeking a consensus from religious leaders or Islamic scholars, on the grounds that Muslim women themselves were asking for it. Though the BMMA had asked the government to enact a civil law, it seems to have accepted the government’s move of criminalising talaq in the hope that it will prove to be a deterrent.
A Flawed Logic
The logic of stringent law as a deterrent is deeply flawed. This becomes evident when we examine the incidents of rape in the country after a stringent law was enacted in 2013 following nationwide protests after the Delhi gang rape and murder case of 2012. The National Crime Records Bureau data released in late 2017 shows that despite the stringent law enacted in 2013, there is a steady rise in reported cases of rape in the country with an increase of 12.4% from 34,651 cases in 2015 to 38,947 cases in 2016. Delhi reported a 33% increase followed by Mumbai reporting a 12.3% rise. There is also an alarming increase in cases of child sexual abuse despite a stringent statute, namely the Protection of Children from Sexual Offences (POCSO) Act, 2012 which has shifted the burden of proof on to the accused.
Interestingly, Javed Anand, who has been an ardent supporter of the BMMA, seems to have retracted from his earlier position of endorsing the demand for criminalisation of triple talaq. The organisation, Indian Muslims for Secular Democracy, of which he is the convenor, issued a press statement urging the government to refrain from criminalising triple talaq as it will be used to target Muslim men (IMSD 2017). Since statutes such as the Protection of Women from Domestic Violence Act (PWDVA) and Section 498A of the Indian Penal Code (IPC) are already in existence, and are uniformly applicable to Muslims and non-Muslims alike, these can be effectively invoked to address cases of instant triple talaq. The Ministry of Women and Child Development also seems to have questioned the necessity of bringing in this statute since there are sufficient legal provisions that the aggrieved woman can avail of, in case her husband pronounces instant and arbitrary triple talaq (Nair 2017).
Since a mere utterance of the word “talaq” does not dissolve the marriage and no injury is caused to the state or to an individual, how can it be construed as a criminal offence? After the constitution bench’s ruling, the word “talaq” has lost its legal validity and power to dissolve a Muslim marriage. Only if the words are accompanied by actions, such as dispossession from the matrimonial home or physical or mental abuse, will it create the grounds for a woman to approach the courts under the above statutes. While this is one view, the contrary view expressed by a few other concerned Muslims is that since historically these words are associated with the draconian act of instantly dissolving the marriage, the husband should be punished for the very act of uttering these words, as these words by themselves cause trauma to the woman.
My own view in this regard, based on the reality of Muslim women who approach Majlis, a Mumbai-based non-governmental organisation (NGO) that provides support to victims of domestic violence, is that the words “talaq, talaq, talaq” are seldom uttered totally out of the blue. Usually there is a history of violence preceding the utterance. The study conducted by the BMMA reveals that 53% of women interviewed were subjected to various forms of domestic violence. Though each of them were entitled to file for protection and maintenance under the PWDVA, none seem to have done so. According to the authors of the study, this is because the women lacked the resources to approach the courts (Soman and Niaz 2016). If that is so, how are these very same women expected to pursue a daunting criminal litigation against their husbands? This is a question the authors of the study have failed to address.
Several studies have shown that rather than approaching the formal structures of law, women from marginalised sections use informal community-based mechanisms to negotiate for their rights. Women find the religion-based dispute resolution fora such as darul qazas more accessible than courts and police stations as there is a general fear among the poor of accessing these formal structures. At times women move in and out of formal and informal forums as well as between secular and religious spaces of dispute resolution. The research of Gopika Solanki (2011) and Sylvia Vatuk (2017) provides us with valuable insights on the multiple ways in which women negotiate for their rights. Anandita Chakrabarti and Suchandra Ghosh (2017), drawing upon two years of fieldwork at a sharia court situated in a large Muslim ghetto in Kanpur, argue that, while addressing issues arising out of family disputes, the key concerns for women are enmeshed within kinship rules, household economies, and family intrigues.
Against this ground reality, how will a law penalising triple talaq help empower Muslim women? While mere utterance of the word “talaq” thrice may not dissolve the marriage, incarcerating the husband certainly will, as the enraged husband may well resort to the approved Quranic form to pronounce triple talaq over a three-month period, thus leaving the wife high and dry.
The statute has provision for claiming sustenance and child custody, which is totally meaningless and is just hogwash, as there are already adequate legal provisions to safeguard the rights of Muslim women in this regard. If the wife, her family and the larger community around her accept oral talaq as valid, and prefer to move on, there is no space for anyone else to interfere. A parallel can be drawn here with the situation of thousands of deserted Hindu wives who prefer to retain the marriage tag rather than claim their rights under any prevailing statutes.
While this may be the case, the general concern of secular groups is that the statute will be used to fuel fear in the Muslim community. There are controversies already around the incarceration of Muslim youth over false charges of terrorism and the “love jihad” bogey, which is used to tarnish all interfaith marriages between Muslim men and Hindu women. This law will provide additional armour to the police to enter Muslim homes and arrest Muslim men.
The title of the bill—Muslim Women (Protection of Rights on Marriage) Bill, 2017—is meant as a throwback to the statute enacted in 1986, the Muslim Women (Protection of Rights on Divorce) Act. Through a creative interpretation, this statute has ensured that a divorced Muslim wife is entitled to a lump sum maintenance as fair and reasonable settlement, a right which has far more advantages for a divorced wife than the earlier provision and has better protected the rights of divorced Muslim women than their counterparts from other religions.
Despite this, there is a deliberate attempt to portray the Muslim Women (Protection of Rights on Divorce) Act as a statute that has deprived Muslim women of their crucial right of maintenance. Not just a communal media, but even women’s groups and secular organisations endorse this view. The enactment is viewed as a backward move of “Muslim appeasement” by the Rajiv Gandhi-led Congress government and a glaring example of the failure of the state’s commitment to secularism at the behest of Muslim religious fundamentalists. In this discourse, the Muslim male is projected as backward, obscurantist, and misogynist, and the women as helpless victims and devoid of agency.
According to Saptarshi Mandal (2017) it is this narrative of a Congress government buckling under the pressure of conservative Muslim organisations and compromising women’s rights in 1986 that the Modi government is trying to capitalise on through the title of the new bill. The bill’s title is so worded as to contrast the illusory protection given to Muslim women’s rights “on divorce” by the 1986 Act, with its own supposedly radical protection offered to them “on marriage.”
I am reminded of Zakia Pathak and Rajeswari Sunder Rajan’s famous essay, “Shahbano.” To justify the bizarre and sinister formulation—“Hindu men are saving Muslim women from Muslim men”—the Muslim woman must invariably be projected as devoid of rights and lacking agency, and the Muslim male as premodern, lustful, polygamous, and barbaric (Pathak and Rajan 1989). This formulation alone provides the moral high ground for the government to adorn the mantle of saving “Muslim sisters.”
It is this scary formulation that compelled Shah Bano Begum to relinquish her claim to maintenance in 1985 and assert her Muslim identity as opposed to her claims of gender justice. Faced with a similar dilemma, it is anyone’s guess as to how the ordinary burka-clad Muslim woman of faith will respond to this intervention that is being hoisted
in her name.
By Flavia Agnes
This article was first published in EPW Vol. 53, Issue No. 1, 06 Jan, 2018
Agnes, Flavia (2016): “Muslim Women’s Rights and Media Coverage,” Economic & Political Weekly,Vol 51, No 20, pp 13–15.
Chakrabarti, Anandita and Suchandra Ghosh (2017): “Judicial Reform vs Adjudication of Personal Law,” Economic & Political Weekly, Vol 52,
No 49, pp 12–14.
DNA (2015): “Muslim Women Write to PM Modi to Make Triple Talaq, Polygamy Illegal,” 28 November, <http://www.dnaindia.com/mumbai/report-muslim-women-write-to-pm-modi-to-make-triple-talaq-polygamy-illegal-2149650> http://www.dnaindia.com/mumbai/report-muslim-women-write-to-pm-modi-to-m….
IMSD (2017): “Don’t Criminalise, Make Instant Triple Talaq an Offence under Domestic Violence Act,” Press Statement, Indian Muslims for Secular Democracy, 5 December, <http://imsd.in/wp-content/uploads/2017/12/171205-Press-release-on-triple-talaq-bill.pdf> http://imsd.in/wp-content/uploads/2017/12/171205-Press-release-on-triple….
Mandal, Saptarshi (2017): “Instant Triple Talaq Bill: Tabling Legislation in Parliament Is Political Move, BJP’s Attempt to Play Protector of Muslims,” Firstpost, 22 December, http://www.firstpost.com/india/instant-triple-talaq-bill-tabling-legislation-in-parliament-is-political-move-bjps-attempt-to-play-protector-of-muslims-
Mustafa, Faizan (2017): “Why Criminalising Triple Talaq Is Unnecessary Overkill,” Wire, 15 December, <https://thewire.in/205140/why-criminalising-triple-talaq-is-unnecessary-overkill/> https://thewire.in/205140/why-criminalising-triple-talaq-is-unnecessary-….
Nair, Shalini (2017): “Why Is a New Law Needed for Triple Talaq, Asks WCD Ministry,” Indian Express,17 Dec