The practice of Instant Triple Talaq is a manifestation of a larger malaise, one from which every community suffers- patriarchy. And when The Muslim Women (Protection of Women on Rights of Marriage) Ordinance, 2018, or the Triple Talaq Ordinance was promulgated on September 19, 2018, it symbolized patriarchy – a unilateral decision imposed on a minority community by an all-knowing state without any consultation with the actual stakeholder.
On August 22, 2017, when the Supreme Court, in a landmark judgment set aside the practice of instant triple talaq by a 3:2 majority, and held it invalid for all practical purposes, it did not leave a void. Quran has, since time immemorial prescribed a procedure for undertaking talaq, which is a necessary extension of the principle that marriage, as per Islamic Law, is a contract between two consenting parties and can be brought to an end when either or both parties withdraw their consent. Instant triple talaq, or talaaq-e-bidaat, as the name suggests, is an invention, a play on the Quranic injunctions which prescribe a much more robust and equitable talaq-e-ahsaan method. It is true, however, that in practice the procedure prescribed in Quran may not be followed in letter and spirit and the rights of the parties involved may not be protected. This is the reason that many countries, including many Islamic countries have codified the practice of talaq in order to bring a semblance of certainty, uniformity and parity between the genders.
But, it is noted with extreme caution that the government has now criminalized the pronouncement of instant triple talaq with imprisonment as well as fine. It is very problematic that a matter of civil discord is being treated as an offence and if we did not guard against such attempts, then before we know it, such a law will become an instrument in the hands of the majoritarian government to target members of the minority community. It is true that women, of any community, must not be subjected to arbitrary practices which have a direct bearing on their mental, financial, physical and emotional well-being, and the state must vigorously pursue the agenda of upholding the rights of women, of every community. That should not, however, translate into efforts which are ill-perceived and set a dangerous precedent of blurring the lines between civil disagreements and criminal acts.
A year before the historic Supreme Court judgment, on August 5, 2016, I introduced a private member bill in Rajya Sabha to completely overhaul and replace the Dissolution of Muslim Marriage Act of 1939 (an Act which provides grounds and procedures for Muslim women to seek divorce by approaching courts). The Bill was drafted, over a period of one year, in consultation with Muslim women organizations, experts and scholars on Islamic laws as well as a team of lawyers.
The Bill prescribes two procedures for dissolution of marriage – one which is initiated outside the court and one which is initiated through the court – and parties are given the option to choose either of the procedures.
Both the procedures provide mechanisms for protection of rights of all parties, especially women and children, as per the Shariat. Simultaneous proceedings can also be initiated under other laws like Section 125 of the Code of Criminal Procedure, 1973 (for maintenance) or the Protection of Women from Domestic Violence Act, 2005. The Bill invalidates, and not criminalizes, any procedure for pronouncement of talaq other than the one prescribed in the Bill. And thus Instant Triple Talaq, or the pronouncement of talaq, three times, in quick succession will be of no effect.
Recently, the Supreme Court also decided to take up constitutional review of practices like nikah halala, nikah muta, etc. I would like to mention that the Bill I have introduced also invalidates the practice of temporary marriages, or muta marriage, which leads to automatic dissolution of marriage after a set time period. The Bill, however, attracts penal sanction for all those who force a woman, who has been given Talaq, to consummate a marriage with another man, before she can remarry her previous husband. This practice, commonly known as halala, is nothing but sexual exploitation of women and must be treated as an offence. Otherwise, the Bill treats matters of marriage and divorce as falling within the realm of civil discords and prescribes access to the civil judicial machinery of the state to either of the parties.
This struggle against the practice of Instant Triple Talaq is also an emotive subject for me as it was my elder brother, Hamid Dalwai (now deceased), who spearheaded this movement way back in 1966. Accompanied by seven Muslim women, including his wife and our sister, my brother took out a protest march against the ills of the practice of Instant Triple Talaq, in which I had also participated as a young and eager 25-year-old man. After the unfortunate demise of my brother at the age of 44, I carried on the work of advocating for reforms focusing on education and gender justice, and the Bill introduced by me is a step in that regard.
I understand that any process of change takes time to seep in and it is my belief that the state must facilitate the change in a fair and peaceful manner, rather than using such heavy-handed measures to further alienate an already marginalized community. I have been urging the Government to undertake specific steps to spread awareness about the ills of this practice among the community by involving organizations working for the welfare of women, religious leaders, political representatives, etc.
The Bill introduced by me is also not perfect, but it is a beginning and I am open to suggestions from the community on how to make it even better. The government must also shun the idea of criminalizing the practice and look for effective alternatives. It is disappointing to note that instead of engaging in a constructive debate, Government has chosen a short-cut. When the government-drafted Triple Talaq Bill was brought to Rajya Sabha, I supported the demand to refer the Bill to a Select Committee because any and every provision and amendment needs to be thoroughly debated and deliberated. The end result of this churning should be a law, which truly represents the ambitions of the community going forward instead of a hurried patchwork put together to assert a political point.