Personal Law

Selective concern

Print edition : February 02, 2018

Activists of the Women India Movement protesting on Parliament Street in New Delhi against the triple talaq Bill on January 4. Photo: Sandeep Saxena

Shayara Bano, the original petitioner in the triple talaq case. Photo: By Special Arrangement

Muslim women celebrating the passage of the triple talaq Bill by the Lok Sabha in New Delhi on December 31. Photo: PTI

While the demand for the abolition of talaq-e-biddat has the support of almost every political party, the limited framework of the Muslim Women (Protection of Rights on Marriage) Bill, 2017, and the tabling of the Bill without consultations have rankled Muslim women’s organisations and non-NDA parties.

ONE of the issues that the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government has been vexed about incessantly is the rights of Muslim women as opposed to the rights of women in other communities. The practice of triple talaq, the instant termination of a marriage by a Muslim man, has been the centre of its vexation, though the original opposition to this practice came from Muslim women and women’s organisations who petitioned various High Courts and finally the Supreme Court in this matter. In August 2017, in a majority judgment (3:2) in Shayara Bano vs Union of India & Ors, a five-judge bench of the Supreme Court set aside talaq-e-biddat, or instant and irrevocable talaq.

In less than six months after the landmark verdict, the Narendra Modi government, through its Law Minister, began moving fast to bring in a piece of legislation, the Muslim Women (Protection of Rights on Marriage) Bill, 2017, to outlaw talaq-e-biddat. The stakeholders, that is, Muslim women’s organisations, did not discuss the draft Bill, which did not even go through a perfunctory discussion with any political party outside the government. The winter session of Parliament thus began on an acrimonious note following contentious claims raised over the nature of the election campaign in Gujarat and ended with the Lok Sabha passing the Bill which seeks to criminalise the practice of instant talaq, in which a Muslim husband utters in one sitting the word “talaq” thrice and this results in irrevocable divorce, and jail for up to three years to any Muslim man found guilty of this offence.

Of all the pending pieces of legislation, it was the triple talaq Bill that somehow got maximum traction in terms of debate inside and outside Parliament, and for good reason. At the meeting of the BJP Parliamentary Party before the introduction of the Bill, Modi termed it a “historic day for India”, hoping that the Bill would be passed by consensus. While introducing the Bill in the Lok Sabha on December 28, Minister for Law and Justice Ravi Shankar Prasad made an impassioned plea seeking the support of all political parties to favour the Bill for the “sisters of the Muslim community, for the dignity of women, gender equality”. The Supreme Court judgment, according to the section on “statement of objects and reasons” in the Bill, “gave a boost to liberate Indian Muslim women from the age old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation”. Ironically, by punishing Muslim men with imprisonment, and that too by making non-bailable an offence that was decreed as “null and void” by the Supreme Court, the Bill did not leave any room for subsequent reconciliation.

“Which Muslim man after being packed off to jail would willingly and happily reconcile with his wife for a long and lasting relationship,” queried a woman activist. These concerns were more than legitimate and obviously had not been considered by the government in its zeal to “liberate Muslim women”. The All India Muslim Personal Law Board (AIMPLB), after having initially taken a hard position on the matter, came around to agreeing to send advisories to community members against the practice.

Ravi Shankar Prasad explained in Parliament that the government felt that the Bill was necessary as there were reports of talaq-e-biddat happening even after the Supreme Court had struck down the practice and the AIMPLB had issued advisories. Hence, the government felt compelled to legislate in the genuine interests of Muslim women.

However, no quarter is convinced by this argument for several reasons. First, the Supreme Court had nowhere in its order suggested criminalisation of the offence. Secondly, the majority opinion in the judgment had not directed the government explicitly to come out with a piece of legislation within six months. And, as the AIMPLB’s efforts were directed towards reform from within, surely these should have been given some more time. It was also the responsibility of the government through its Minority Affairs Ministry to disseminate information about the judgment if it all it was concerned about the welfare of Muslim women.

The Law Minister argued that the government was only doing something that the Supreme Court had mandated on August 22 when it pronounced its ruling on triple talaq. Ravi Shankar Prasad stated that after the judgment, there were at least 100 cases of instant talaq. Earlier, he had admitted to a news agency that the government did not consult anyone before the Cabinet cleared the Bill for introduction in Parliament.

“This government functions in a very centralised manner. We learnt that neither the Minorities Affairs Minister nor the Women and Child Welfare Minister knew about the Bill,” said a woman activist. It was interesting that neither of the two Ministers spoke in the Lok Sabha on the proposed legislation.

Overall, the government felt it was taking a monumental step in rectifying the historical injustices done to Muslim women, an opinion that has not been shared by most of the political parties and women’s organisations, including Muslim women’s organisations. While almost every political party has supported the abolition of talaq-e-biddat in one sitting, every political party outside the NDA fold has rejected the penal provisions in the Bill.

The problem is that the Bill goes beyond declaring triple talaq in one sitting as null and void. It makes the act a cognisable and non-bailable offence by awarding punishment for the husband pronouncing instant talaq with three years of imprisonment and a fine. By making the act a cognisable offence, the Bill empowers a police officer to arrest the erring husband without a warrant. Interestingly, the Bill also confers the right on the Muslim woman to seek a subsistence allowance for herself and her children from the husband, who may be imprisoned under the clauses of the same Bill. The amount for such an allowance would be decided by a first class magistrate.

The main objection that political parties such as the Congress, the Communist Party of India (Marxist), the Samajwadi Party, the Nationalist Congress Party, the Communist Party of India, the Trinamool Congress, the Biju Janata Dal, the All India Anna Dravida Munnetra Kazhagam, the Dravida Munnetra Kazhagam and the All India Majlis-e-Ittehadul Muslimeen raised was against criminalisation of the termination of what was essentially a contractual relationship, that is, marriage. Women’s organisations, such as the All India Democratic Women’s Association, the Bebaak Collective and the Bharatiya Muslim Mahila Andolan (BMMA), raised objections on similar grounds. While the BMMA was one of the main petitioners in the Supreme Court pleading for the declaration of talaq-e-biddat null and void, the Bebaak Collective was one of the interveners in the case that supported the petition of Shayara Bano challenging the constitutionality of triple talaq, nikah halala and polygamy. All the women’s organisations have appealed to the government against passing the Bill in haste and without consultation. They want the Bill to be sent to a Standing Committee of Parliament, a demand that has been made by various political parties, including the Congress and the Left. The women’s organisations have pointed that there was no rationale behind criminalising the practice of talaq-e-biddat. Marriage was a civil contract between two persons and as such the procedures involved following any breakup of the contract should also be civil in nature, it was pointed out.

The Bebaak Collective stated that civil redress mechanisms and reparative justice should be in place to ensure that Muslim women were able to negotiate for their rights both within and outside marriage. More importantly, these organisations felt that penal actions would only add to the prevailing insecurity and alienation of the Muslim community. There would also be family and other pressures on the woman not to report against the husband. A need for criminal intervention could arise if there was domestic violence, which the women’s groups averred could be dealt with by existing laws such as the Protection of Women from Domestic Violence Act (PWDVA) and Section 498A of the Indian Penal Code (IPC). In fact, simultaneous concerns were expressed over certain judicial pronouncements relating to the alleged misuse of Section 498A, and women’s groups have been concerned about the government’s stance on this.

The Supreme Court held that talaq-e-biddat was null and void, thereby implying that the marriage was not dissolved. In such a situation, where the marriage was not dissolved and the errant husband was jailed, the rights of conjugality stood violated apart from causing financial hardship to the wife and children. The Bebaak Collective wrote to several Members of Parliament pointing out that various laws for women such as the PWDVA, the Sexual Harassment of Women at the Workplace (Prevention, Protection and Redressal) Act, 2013, and the Criminal Law Amendment Bill, 2013, were an outcome of the struggle of women’s movements and that the framing of such laws had been preceded by discussions and consultations. The organisations, which are not against reform in Muslim personal laws, maintained that all laws needed to be tested against the constitutional mandate, and in the event of contradictions, the principles of equality should prevail. The Bebaak Collective mooted amendments to the Muslim Personal Law (Shariat) Application Act, 1937, as it held the view that all personal laws were discriminatory against women in varied ways. Hence, new laws and amendments to existing laws were required in the framework of guaranteeing the fundamental rights of equality and non-discrimination, it said. While the court repealed instant talaq, it failed to provide any guidelines to ensure its implementation.

The Bill, in its present form, is inadequate as it does not address the other aspects of marriage and divorce. Even though its title includes “Protection of Rights on Marriage”, it does not really offer economic and other forms of protection. All forms of talaq continue to be unilateral as they vest powers in the hands of the man, with the wife having little control over her marital status. Women’s groups said this should have been done away with as well. The Bill, inasmuch as it penalises the husband, did not address the issue of nikah halala, wherein a Muslim woman has to get remarried and consummate her marriage to another man if she wants to remarry her former husband. This, women’s organisations have argued, was a form of physical, sexual and emotional abuse that needed to be a punishable offence. It has been pointed out that women, in order to seek divorce, had to seek recourse from the courts under the Dissolution of Muslim Marriages Act, 1939.

Community-based arbitrations and extrajudicial arbitrations exercised on behalf of the community within the framework of personal laws did not always work to the benefit of the aggrieved woman. It has been argued that a court of law should be able to give a decree of divorce wherever applicable and also deal with matters of dower, maintenance of the wife, custody of children, right to reside in the matrimonial home, etc., with the overall interest of safeguarding the rights of women and children. These were the real issues that affected Muslim women, all issues of basic survival.

Whose Shariat?

Zakia Soman, co-founder and president of the BMMA, told Frontline that while Parliament had codified Bills pertaining to other religious denominations, the legal discrimination faced by Muslim women in the absence of codified laws was an issue. The Muslim Personal Law (Shariat) Application Act, especially the parts pertaining to the “lived realities” of Muslim women, which included rights within marriage and post divorce, was not reformed. “Whose Shariat?” was a question Muslim women had been grappling with, she said.

“The entire political class has failed in its obligation to secure legal justice for Muslim women all through,” she said. She said the judgment was a straightforward order setting aside triple talaq but refrained from laying down any guidelines. “In our petition, we had prayed against triple talaq, halala and polygamy. But the court said that it would deal only with triple talaq. So, after 70 years of Independence, only triple talaq was dealt with. Yet we welcomed it,” she said, adding that it would have been better had the judgment dealt with several nuanced aspects. The BMMA, she said, had been demanding a codified law for Muslim women for over a decade, and it was nowhere its contention and belief that Hindu or Christian women had emerged from the stranglehold of patriarchy despite having codified personal laws.

The BMMA had prepared a draft Muslim personal law and sent it to all political parties and government commissions. “We made it public in 2013 and made three or four amendments and sent it to one and all in the political firmament. We have not received any response from the government on this. We were there all the time, demanding the abrogation of talaq-e-biddat for more than a decade, but were more proactive over the past four or five years,” Zakia Soman said. “So, we were happy when we heard about the Bill as we were demanding a comprehensive codified family law. We welcomed the government’s move to bring in a law. But no one got to see the draft Bill. Even those who were writing on it had not seen it. We saw it only when it was tabled in Parliament. There are some amendments that are absolutely necessary. The first is that we want that the Bill should lay down an elaborate procedure for divorce according to the Talaq-e-Ehsaan method in the Quran, which involves mandatory efforts towards mediation and reconciliation for a minimum period of 90 days. At the end of it, either they get together, or, if it is irreconcilable, they part, but the parting has to be just and fair to the wife. The Bill needs to have greater clarity in a post-divorce scenario, about allowance and other things. Thirdly, marriage and divorce are matters of civil law. If the husband violates the law, no doubt he should be punished. But it has to be a non-cognisable offence and bailable. If you see the other laws, bigamy is punishable up to four years but is bailable and cognisable. While we say that the husband should get some punishment, that punishment in itself will not serve the cause of gender justice. But it looks once again as if the political class is working towards sabotaging Muslim women’s legal rights. We are a democracy; there is a process of lawmaking. It is the duty of the government to take everyone on board and the opposition to collaborate and cooperate. Both have taken extreme positions and at what cost?” she said.

Zakia Soman said the opposition parties, especially the Congress, needed to share the blame for the state of affairs. “No one knew the official position of the Congress in this matter. Its individual leaders were tweeting but that does not make it a party position. Does fighting for the rights of Muslim women make one less secular? Of course, the government has not followed democratic norms—that is there for everyone to see. It has suited everyone to get the Bill stalled,” she said.

“They want to gain political mileage out of this. By selectively picking on talaq-e-biddat, they want to claim credit. The BJP is taking advantage because of the patriarchy that already exists in Muslim society. But it was owing to the efforts of Muslim women that public opinion was generated in support of the abolition of triple talaq. There have been five or six judgments in high courts which had declared triple talaq null and void. But those cases were fought in isolation. No one knew about them. The case in the Supreme Court was fought as a public interest petition. Our argument was that gender justice was a fundamental component of Islam. The entire world should know that it is not because of Islam that women are subjugated but because of patriarchy. The demonisation of Islam is not justified. We are demanding our Quranic as well as constitutional rights,” said Zakia Soman.

It was apparent that women’s organisations in general were not convinced about the sincerity of the government despite the media hype. As of now, only the government and a handful of its Muslim women supporters projected by it in the media seem convinced about the benefits of the Bill. Even the BMMA and the Bebaak Collective are unhappy with the limited framework of the Bill, the absence of consultation and the punitive clauses. The government does not seem to have followed the democratic process of consultation, or referring the Bill to a standing committee. No one seems to be rejoicing barring the government and its few supporters in the minority.

All this then raises the question, Who benefits?

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