This Article is From Dec 15, 2017

Modi Government's Triple Talaq Law Is Deeply Flawed

"White men saving brown women from brown men" wrote feminist scholar Gayatri Chakravorty Spivak in her seminal work "Can The Subaltern Speak?" What Spivak wrote in context of the larger colonial narrative, can be tweaked to reflect what's going on with the issue of Triple Talaq in India. It's a case of "Hindu men are saving Muslim women from Muslim men."

I have written earlier on the issue of Triple Talaq. There can be no two arguments over the practice as inhuman, illegal and un-Islamic. There is no defending that. This perverse interpretation of the Islamic way of divorce has been used by the patriarchal clergy and some men to suit their perverse ends. Great injustice has been done to a number of women in the instant talaq version of Triple Talaq.

It will also help to clarify in the beginning that instant Triple Talaq and Triple Talaq are not one and the same. The Islamic procedure of divorce is indeed Triple Talaq, but pronounced over a period of 90 days, with scope for reconciliation. Not the instant pronouncement of the three dreaded words orally or on WhatsApp or email. The Supreme Court has rightly declared this version of talaq as un-Islamic and unconstitutional. Though various courts had ruled in favour of women in individual cases over the years, this time the top court ruled on the concept as a whole and settled it once and for all. It was long overdue.

Now the union government is introducing a law to criminalise instant Triple Talaq. The law is indeed needed. For if a woman is subjected to the ignominy of instant Triple Talaq, under what law would the offence be registered?  But the draft law cleared by the Union Cabinet on the issue and its provisions as reported in sections of media make one wonder if the government has indeed thought through it.

The proposed law looks ill-conceived. Making Triple Talaq a non-bailable, criminal offence with a provision for three years in jail for the errant husband is thoughtless. The first question that comes to mind is: when instant talaq does not result in the dissolution of the marriage, as ruled by the Supreme Court, can its pronouncement be criminalized?

Further, in its zeal to save the Muslim women from 'barbaric' Muslim men, the drafters of the law have overlooked the consequences of the one-step criminalization of instant talaq. If the man is jailed for three years, without any chance at reconciliation or remorse, what happens to the aggrieved woman and her children? The draft law says the woman will be entitled to maintenance from the errant husband. But how is a jailed man supposed to give maintenance? Most sufferers of bad practice of Triple Talaq are very poor, uneducated women. How are they supposed to provide for themselves and their children when their husbands are pushed into jail for three years? Doesn't it amount to indirect punishment to wronged women, whose cause this government claims to champion?

A marital discord is primarily a civil dispute. Why not treat it as such?

This is not an argument against a law to deal with cases of instant triple talaq. A number of cases of instant talaq have been reported even after the Supreme Court order. This makes a legal remedy for women all the more pressing. So we need a law. But not the kind that is being presented by this government.

Many legal experts and activists have suggested making instant triple talaq an offence within the ambit of the already existing and effective Protection of Women form Domestic Violence Act, 2005.  This will open up the possibility of relief provided under the Act for a victim. The provisions of the Domestic Violence Act are civil in nature but the procedure followed is the one prescribed by the Code of Criminal Procedure (CrPC). This seeks to ensure speedy justice (ideally, the magistrate's order should come within three months of the case being placed before him/her) and is in sharp contrast to criminal prosecution which is expensive and take years.

Under the Domestic Violence Act, the magistrate's "protection order" will make it clear to an errant Muslim husband that by resorting to triple talaq, he has committed an illegal act, that the marital relation remains intact, that the wife remains entitled to stay in the marital home, and receive maintenance from her husband in addition to monetary compensation where applicable.

The husband will face jail or a fine if he chooses to dishonour the court's order. Thus, the Domestic Violence Act gives an opportunity to the errant husband to correct himself and it's only his failure to comply with the court's order that invites the penal provisions.  

So ideally the government should be amending the Domestic Violence Act to bring instant triple talaq under its purview and not rush with a half-baked law that won't serve its purpose.

The government needs to hear varied voices. It should not be guided by political motives while framing a law that will have far-reaching consequences. For the BJP, the issue of triple talaq has always been a political one. It presents itself as the champion of the Muslim women's rights. Fine. But why a special law only for deserted Muslim women? Aren't Hindu or Christian or Sikh women deserted by their husbands left with little legal recourse? What about their rights and equality? Desertion of women is more of a gender issue, not merely a religious one. Isn't the life of every woman unilaterally separated or abandoned by a spouse equally pathetic?

The council of ministers will be well advised to take suggestions from a cross section of society and come up with a legal remedy that will really help its intended beneficiaries. Right now, the government's approach is full of brawn: that it can bulldoze a law as it has a majority. It needs to pause and also apply some brain power.

(Mohd Asim is Senior News Editor, NDTV 24x7)

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