The Lok Sabha on Thursday passed the contentious Muslim Women (Protection of Rights on Marriage) Bill, 2019, also referred to as the Triple Talaq Bill. The bill had been passed in 2018 and 2019 by the Lok Sabha, but lapsed after not being passed by the Rajya Sabha. It has been hailed as a step in providing legal recourse to Muslim women from the practice of talaq-e-biddat, where a Muslim man could divorce his wife by uttering the word talaq’thrice. This was preceded by the Supreme Court judgment in 2017 where it had declared the practice “unconstitutional”.
During the course of the hearings, the Centre had told the bench that it would come out with a law to regulate marriage and divorce among Muslims if Triple Talaq is held invalid and unconstitutional by the apex court. A clause in the bill criminalises this practice, with a jail term of three years for the husband.
The debate surrounding this practice is layered and has many facets to it, each affected by political or ideological leanings and incidents. The issue of a ‘Uniform Civil Code’ (UCC) was also added to the discussion, as a means to bring all religions under a supposed secular ambit (vis a vis the personal laws). There is a divide among the groups who are involved in the crusade to secure women’s rights about which ‘side’ they have found themselves to be in. Considering the fact that Muslim personal law is an integral factor in the discussion, the position of many women’s rights groups on the validity/sanctity of the personal laws is divided.
From Shah Bano To Shayara Bano
The mainstream debate on triple talaq has shifted and taken on many more dimensions from the time of Shah Bano to the current scenario with the ‘landmark’ judgment of the Supreme Court following the petition put forth by Shayara Bano in 2016. I will say that it has always remained entrenched in a protectionist ideology buoyed by ‘Hindu chauvinism’, of “saving Muslim women from Muslim men” (Pathak & Rajan 1989). There is no real concern about what the women want, but to suit electoral and communal battles.
The debates around this form of giving divorce, popularly referred to as triple talaq, as it involves the husband uttering ‘talaq’ thrice, has raked up much furor with the spotlight being put on the current government keeping in mind their track record when it comes to the treatment of religious minorities.
It is important to understand the mechanism(s) of marriage and the personal laws it is governed by, in order to understand the areas where the divide between feminists’ stem from. On the creation of personal laws, Pathan and Rajan (1989) state that “Most rulers, including the British, recognising that interference in religious issues could be explosive in its consequences, respected the traditional laws of religious communities in personal matters relating to family and inheritance rights. As a result, matters relating to the family (such as marriage, divorce, maintenance, succession to property, inheritance, and custody and guardianship of children, as well as adoption), which came to be known as “personal laws” and would vary from one religious community to another, remained uncodified.”
From this, we need to examine the intricacies of Muslim personal laws and their functioning. “Unlike Hinduism and Christianity where marriage has been traditionally viewed as a sacrament, under Muslim law, marriage is a civil contract based on consent as spelt out in the utterance of qabul. The ideal form of dissolution of this contract, based on the Prophet’s tradition, is considered to be talaq-ul-sunnat pronounced in ahsan form.” Under this, once the husband pronounces talaq, there has to be a three-month iddat period. This time is meant for reconciliation and arbitration and if during this period any kind cohabitation occurs, the talaq is considered revoked.
The fact that marriage is a contract according to Muslim personal laws is pertinent, and one should note how the provisions made under the personal laws for women from Mehr to obtaining a Khula are not brought up in debates on divorce and marriage under the ambit of the Muslim personal laws.
This is not to dismiss the experiences of women who have been subject to triple talaq, but a nuanced debate needs to look at all provisions of personal laws. We cannot deny that undertones, rather over-currents, of Islamophobia (an understatement), have colored debates on triple talaq.
Point-Counterpoint: Perspectives From Within The Feminist Movement
“It’s one step at a time; we cannot expect a drastic momentum. Talaq-e-bidat is the most barbaric of practices. Once it is outlawed, gradually reform in all aspects of Muslim personal law can happen. This is the reason why we have been demanding a comprehensive, codified Muslim personal law,” said Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan (BMMA), a mass organisation of Muslim women in India. BMMA’s report ‘Seeking Justice Within Family: A National Study of Muslim Women’s Views on Reforms in Muslim Personal Law, 2015’ played an important role in buoying the rather frenzied debates on triple talaq and the rights of Muslim women. The report is based on interviews with 4,710 women flagged instant triple talaq (along with polygamy and nikah halala) as the pressing concern of Muslim women.
The report acknowledges the fact that the way Muslim Personal law is understood in India, legal rights of Muslim women are “mired in much ambiguity, obfuscation, and gross apathy to the least”. This report has been criticised for only having a sample size of around 4,700 participants and being termed a national study. Out of these women, “92 percent wanted a ban on triple talaq” the report states, but this was taken (by media reports) to mean 92 percent of all Muslim women.
The Shamim Ara judgment by the Supreme Court in 2002 has invalidated arbitrary triple talaq and held that a mere plea of talaq in reply to the proceedings filed by the wife for maintenance cannot be treated as a pronouncement of talaq. The Supreme Court in ‘Shamim Ara v. the State of UP and Another’ has held, though not in so many words, that triple talaq lacks legal sanctity. However, following the filing of the petition by Shayara Bano and BMMA’s report in 2015, triple talaq was brought to the fore again. The criticism given by most women’s groups against the criminalisation of triple talaq and the ‘tampering’ with laws is that this 2002 judgment already invalidates the ‘sanctity’ of this kind of divorce.
Will criminalisation necessarily work as a deterrent or will it help in the persecution of Muslim men, and leaving the abandoned women at crossroads? Many legal experts, especially those involved in the women’s movement, have questioned giving more power to the ‘enforcement machinery’ through the enactment of more laws. The position some feminists take is that triple talaq is not as widespread a practice as it has made out to be. The sensationalism of the frequency and method, especially during the hearings in the Supreme Court, has only added to the already (communally charged) atmosphere in the present-day context. “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,” wrote Flavia Agnes in an article in The Economic and Political Weekly.
She goes on to question how the women who were interviewed by BMMA were expected to approach the courts to seek redressal for triple talaq, when lack of resources becomes a major stumbling block. “The study conducted by the BMMA reveals that 53% of women interviewed were subjected to various forms of domestic violence. Though each of them was 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?” she asks.
At this juncture, I feel it is important to arm women with the knowledge and know-how of existing laws as well as provisions under personal laws. Rather than highlighting only the ‘helplessness’ of the situation (which led to the attempt to criminalise triple talaq and which is alarming the very groups who fought for it), it is important to let not only the women but the different stakeholders know that there are provisions like Section 498(a) of the CrPc which criminalises’ cruelty’, as well as the Protection of Women from Domestic Violence Act (PWDVA), 2005 which provides civil redressal for physical, mental, emotional and economic violence against women.
As such, women hesitate to approach the legal or criminal justice system unless it is the absolute last recourse, with this, will the creation of more legislation and criminal laws do their intended work? The family as a site of violence is a complex notion and is one where formal laws of any kind do not easily pervade inside.
Who Speaks For Whom?
There is a parochial way of seeing and interpreting the provisions mandated under the personal laws as well as the constitution, the IPC and civil laws. I strongly feel that the debate on triple talaq and UCC has largely centered around the opinions of men in the judiciary, the men on the personal law boards, (mostly male) politicians, and the few women petitioners. The question of who speaks for whom is pertinent at this juncture. This protectionist view plays out like a strategy to curb the religious freedom of the minority community in question and to establish the superiority of the “progressive” majority community (its men).
What is highlighted here is the “sense of crisis (that is) produced in society through a woman’s issue and the possibilities for change that it may provoke,” write Zakia Pathak and Rajeshwari Sundar Rajan in their article ‘Shahbano’. It is not allowed to remain only a ‘Muslim woman’s’ issue as political and religious actors appropriate it to forward their own agenda of ‘protection’ which inevitably means control of the women concerned.
The ‘Home And The World‘
By making this into an issue that pertains to “women” and sidelining their religious identity, there is the danger of simplifying the issue and ignoring the (complicated) intersections of religion and gender. What needs to be seen is if this interference is for the common good of those who are the main stakeholders in the structure, or if this ‘interference’ will prove to be counterproductive. Many within the women’s movement have criticised this provision within the bill as being too much of a punitive punishment related to a civil offense.
“The relationship of state or secular law to personal or religious law has always been a vexed one in India,” note Pathak & Rajan. The state is reluctant to act on matters that pervade into a woman’s private sphere, that is the home. Likewise, the private realm of women that is situated within the domain of the family acts as a gatekeeper to allow or not allow laws constituted by the state to enter. The benevolent protectors of Muslim women deny agency to them, and this ideology of protectionism has no space for the voices of Muslim women.
The partial codification of Muslim personal law in the ‘Muslim Women (Protection of Rights on Divorce) Act’, 1986 that came in the aftermath of Shah Bano’s case transferred the dependence of women from the hands of their recalcitrant husband(s) to either their natal homes or to the WAKF board. I strongly feel that the criminalisation of triple talaq also serves a very tokenistic purpose and rather than looking at the lived experiences of the women and the required foresight, seeks to imprison Muslim men for a civil offense that is also prevalent in other religious communities. Abandonment or desertion of wives is not a religion-based problem and is something even men belonging to positions of power have indulged in. Legal recourses that guarantee certain provisions that maintain the wellbeing of these women (as is provided for under the personal law) should be charted out in such a way that does not allow the women to remain as ‘victims’.
The stakeholders in the debate on triple talaq who are most affected are the Muslim women. The political hands that have tried to sway the deliberation to suit its electoral agenda (like any government before) has painted itself and its leadership as the progressive savior for the women. In the same breath where this practice is decried, (implicit) support to the lynchings of those who allegedly possess beef and discrimination of those belonging to (religious) minority communities are uttered with ease.
“A powerful state conversely means weaker citizens, which includes women. And the weaker the women, the more vulnerable they will be to male violence. The cycle is vicious” wrote Flavia Agnes in 1995. This holds true two decades on, with increasing interference in the personal laws especially at a time when a spillover of communal tensions is constantly looming over us, being egged on by political (and electoral) leaders.
At this critical juncture in political, feminist and legal history it is vital for the women’s movement to consolidate differing viewpoints and strategies to bring about change that is in consonance with the needs of the women they are fighting for and make sure that representation of the stakeholders is adequate.