July 30 is the day when one of our many historic bills – Protection of Rights of Marriage of Muslim Women Act or what is popularly known as the Triple Talaq Bill was finally approved in the upper house of the parliament. Actually, we can say that a long wait and struggle for justice and empowerment which was laid by a group of Muslim women, received its due. The fundamental motive of the act is to have women placed equally with men when a decision regarding dissolving or continuing a marriage needs to be taken.
The husband will not have any authority of leaving his wife simple by pronouncing the world talaq (divorce) three times without following a legal procedure. However, it is important to understand each and every aspect of the act in order to find out how efficient this is going to be in empowering women and freeing them from marital atrocities.
This is a process of verbal unilateral divorce followed by the Muslim community in certain instances. However, it has been confirmed that this system of dissolving marriages does not find any mention in The Qur’an or any other holy scripture of Islam. Also, it has been stated a number of time that Islamic Laws do not sanction the practice of triple talaq.
Though the Muslim Personal Law in India confers to the legal system of divorce, it did not nullify the enforcement of triple talaq until August 2017 when the Apex Court of Law termed it illegal and unconstitutional outrightly in the case of Shayara Bano.
Historically, the case came to court back in 1985 when Bano decided to take the refuge of law in order to combat the injustice that she faced due to this system of triple talaq. This was not just the victory of one woman but many such Muslim women who were in the same boat. Till now, the verdict had been absolutely appropriate as this also acted as a response to the numerous petitions filed in favour of nullifying the law.
Right after this, the BJP government under the leadership of Narendra Modi, decided to introduce an ordinance that would make unilateral oral talaq a criminal offence. Since then, this has faced quite a great deal of counter reactions on account of flaws in the terms of the bill and also regarding its alignment with the actual cause of protection of women’s rights. Some of the salient features of the law are as follows:
1) Talaq-e-Biddat will be considered completely illegal.
2) Men who indulge in this practice will be charged under the criminal code and can be subjected to arrest without a warrant.
3) The aggrieved woman will be the main complainant in every case, however, the same rights will lie with any of her immediate family members.
4) The law criminalises a declaration of divorce by any form written, verbal or media-based pronouncement.
5) The accused will be sentenced to a rigorous imprisonment of three years.
6) The accused can be granted bail by the magistrate only after the court hears both sides.
7) The aggrieved woman will be entitled to a lifelong compensation that resembles divorce alimony in a regular case.
8) The magistrate will have the discretion to decide which parent will have the custody of the children.
So if we closely analyse the principal pointers, we shall see an odd deviation from the usual trial system. For any other religion, a unilateral divorce or desertion is a civil offence, however, this becomes criminal offence for the men of one particular religion. There can be an argument justifying this, i.e. other religions do not follow any instant divorce system but then any man can choose to disown or desert his wife even without legally divorcing her. How will that kind of cases be dealt with? So as per this law, only Muslim men will be termed criminal for doing so but for others it will just be a civil offence or may not be an offence at all.
Next, when the Supreme Court has clearly deemed triple talaq void then what is it that’s actually been criminalised? It clearly states that an action will be taken only when the instant divorce happens, so how is this actually addressing the agony and plight of the woman who has been oppressed by her husband in the name of marriage? Is it just the utterance of the word but that subjects to penalty? But then, that anyway has no existence and validity after August 2017!
Or would also the intent to torture and divorce be taken into consideration? Well, the bill says nothing on this aspect. Even if physical and mental torture are addressed, the point here is, why isn’t this done as an extension to Section 498 A: “a woman subjected to cruelty by husband or relatives of husband”? This would have been a more firm and assured way of getting justice.
Then, let’s understand if the law is actually serving the purpose of protecting rights under marriage. If we assume that the right of marriage means to stay with the husband in the same family, then what will be the course of action if the husband intentionally deserts the wife without uttering talaq? Is this not a violation of the marital rights of the woman? But as the law states, no case can be filed in this scenario.
Census data states that a large number of women have been abandoned by the husband without being divorced legally and this holds good across all religions. Surprisingly, the number is the highest among Hindu women (20 lakh) which easily outnumbers the same in Muslim women (2.8 lakh) followed by Christians (90,000) and then other religions (85,000). The law clearly dismisses the reality of the kind of households in which this system is practiced because no act of cruelty gets recognition beyond the fallacy of an instant oral divorce. Then, where does women empowerment lie?
The biggest ambiguity of the law lies with one its important features, that is, the complainant can claim maintenance from the husband. But, how is that going to happen when the accused is serving a sentence of three years? In that case, a woman who is completely dependent on her husband financially, will have no source to take care of her livelihood. So, this aspect is actually detrimental to her practical need and interests.
It is also extremely important to understand the intent of the woman when she files the case. If she does not want the marriage to dissolve then she may not want her husband to be imprisoned for three years and if she wants to file a criminal case, then she she would neither have her husband’s company nor financial compensation – so her fight will not have any effective result. Again, the question of the validity of this law comes into the picture.
So, is what otherwise looks to be a strong move made in the interest of women actually nothing more than a political gimmick? To me, it seems more like a petition used as a tool to make a law to create a strong vote bank without thoroughly scrutinising the loopholes. These are actually points of serious debate and we as a society must come forward to raise these questions. It does not mean that I or any person who raises these questions are against the Act. Neither are we here just to find out flaws with everything the government does. There cannot be anything better than overruling redundant religious myths with strong legal intervention. But, it should truly serve the purpose.
By no means the sentiments and misery of Muslim women or of women from any community be misused for political benefits, is what we have to be sure of. The government must understand and acknowledge the fact that law making and politics are two completely distinct concerns and when an overlap happens, it does anything but good. An ordinance when passed should never target a particular faith and should be uniform for everyone. And things would be even better if women from every religion are served this kind of justice rightly.