THE right to divorce is not a criminal offence. Personal laws of all communities give right to divorce to both men and women. The issue is what is the best method of divorce accepted under the law.
Four months after the Supreme Court (SC) delivered a verdict quashing the practice of instant triple talaq, an absurd and politically contentious bill criminalising instant triple talaq has now been passed in the parliament. The Muslim Women (Protection of Rights on Marriage) Bill – which was pushed through the Lok Sabha with hardly a day’s discussion and amid a demand by the Opposition to refer it to the standing committee for further discussion – not only makes instant triple talaq illegal and void but introduces criminality in a civil matter.
In its judgement the SC had declared that instant triple talaq – talaq-e-bidaat – is un-Quranic and unconstitutional. The SC judgement was indeed historic. But the same can’t be said about the bill, which makes instant triple talaq a cognisable and non-bailable offence, which can result in imprisonment of up to three years, though law minister Ravi Shankar Prasad, who introduced the bill described it ‘historic’ amid opposition to its introduction by members of different parties. The minister also said that the bill is about justice and respect for women and is not about any religion or community.
The SC judgement of August 22 was a result of years of efforts by individuals, rights groups and civil society. It started as an endeavour on the part of a few aggrieved Muslim women and their supporters, but became a movement for abolition of instant triple talaq. The crux of the fight against an unjust and arbitrary practice was welfare and protection of women. But if the bill becomes a law, it will not only jeopardise the welfare and protection of women but, socially and financially, it will make them even more vulnerable.
The five-judge SC bench that delivered the 3:2 majority judgement did not arrive at a consensus as regards religious freedoms guaranteed under Article 25 and individual rights enshrined in Article 14. Though, there appears to be a conflict between religious freedoms and individual rights in absence of a consensus and clarity as to whether Article 14 should have precedence over Article 25 or vice versa, the SC held triple talaq to be violative of Article 14 and said that it was ‘manifestly arbitrary’. The court also observed that triple talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi School which tolerates it.
The SC further stated that triple talaq forms no part of Article 25. “Merely because the practice has continued for long, that by itself, cannot make it valid if it has been expressly declared to be impermissible…What is held bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.” Instant triple talaq is indeed socially, morally and ethically wrong and undesirable. The fact that it was challenged by a few Muslim women and the SC delivered a favourable judgement needed a progressive response from the government to improve the well-being of Muslim women.
Instead, the government has proposed a drastic measure to discourage the practice of talaq-e-bidaat, which has already been outlawed by the SC. Therefore, what is hard to comprehend is: when triple talaq is no more legal, how does it become a criminal offence? And by making it a criminal offence, does it not kill the possibility of any reconciliation between husband and wife? Nowhere in the judgement or in the differing views recorded by the judges, did even one of them refer to the practice of triple talaq as a criminal offence. The right to divorce is not a criminal offence. Personal laws of all communities give right to divorce to both men and women. The issue is what is the best method of divorce accepted under the law.
When the man, often the sole breadwinner in the family, is sent to jail for three years, not only he will not be able to provide subsistence allowance to his wife, but the woman will be left alone to fend for herself and her children. Since survival is the key issue, it can easily leave woman vulnerable to some kind of exploitation. The proposed bill will not only force the woman to stay in marriage despite the husband not wanting her, but serving a prison term will make the man even more bitter towards his wife. How it will help the aggrieved woman is beyond comprehension. When the husband is sent to jail, how does the government expect the man to return to his wife after completion of his prison term?
Making triple talaq a criminal offence is in sharp contrast with the government’s approach to an existing law against domestic violence under Section 498A which the government wants to dilute by making it non-cognisable and bailable. Domestic violence is a criminal offence; so is demand for dowry. The matter of concern is: in one case, the government wants to make a civil matter a criminal offence, while in another, it wants to eliminate punishment for criminal offences. The threat of divorce and fear of abandonment cuts across all communities in India. Often, in absence of a level playing field, women opt for divorce in the most difficult circumstances. In a patriarchal society like India, reconciliation is always a preferred option for women. Criminalising arbitrary divorce like triple talaq closes the window of reconciliation.
The bill is not only badly conceived, but is a flawed piece of legislation. For instance, while the stated purpose of the bill is to invalidate triple talaq, it actually recognises the woman as being divorced as it speaks of custody of children. Though, the government claims the bill will benefit Muslim women, it was conceived, drafted and adopted without any discussion with those who are affected. The voices of Muslim women, nor their representatives or women’s organisations, who have fought for years for the rights of women – and not just Muslim women – have not been heard. There are many issues with the bill which need further discussion and whether such a bill is required in the first place. Already, there are enough laws to protect the rights of women and the proposed bill does not give any additional rights to Mulsim women. Hopefully, these issues will be addressed when the bill comes up in the Rajya Sabha where the government is likely to face a tough test.
The writer is an independent senior journalist.