Firstly the bill was conceived, drafted and adopted without any discussion at all with those who are affected. The bill is titled "The Muslim Women (Protection of Rights on Marriage) Bill", yet at no stage were Muslim women, their representatives or women's organizations consulted. It is Muslim women, not the Modi government, who petitioned the Supreme Court against the obnoxious arbitrary and instant practice of triple talaq. It is women's organizations who have fought for years for the rights not only of Muslim women, but women of all communities governed by personal laws on the slogan of "equal rights for women of all communities" through reform of personal laws. It is a mockery and travesty of justice that the opinions of those in whose name a legislation is proposed were ignored by this government. What then is the credibility of the claims made by government representatives that this was all done to help Muslim women?
In the past, all bills connected with women's rights have been discussed threadbare. For example, soon after Independence, parliament considered the Hindu Code Bill which suggested radical reforms in personal laws applicable to Hindus. It took over ten years of discussions before it was finally adopted, although in a diluted form as far as women's rights are concerned.
The 2004 Bill on Amendments to the Hindu Succession Act to establish equal rights to ancestral property for Hindu women was referred to a Standing Committee which suggested certain amendments. Women's organizations had an opportunity to appear before the committee with their recommendations. It was adopted only after the report of the Standing Committee had been considered. The law on protection of women against domestic violence also went through the Standing Committee. The 2010 Bill to amend marriage laws to include irretrievable breakdown as a ground for divorce was also sent to the Standing Committee. Ultimately, the bill lapsed. There are numerous such examples. The question is why was the same procedure not adopted for the present bill?
This bill has been pushed through with hardly a day's discussion. The ruling party misused its single party majority in the Lok Sabha, bulldozing the demand of the opposition to refer it to a Standing Committee for further discussion. This authoritarian method undermines democracy and the parliamentary form of governance. Secondly, on substantive grounds too, the bill raises questions which require further discussion. The bill, by including a three-year jail sentence for any Muslim man who divorces his wife through the practice of talaq-e-biddat or instant and arbitrary triple talaq, criminalises what is essentially a civil matter. It makes the "offence" "cognisable and non-bailable." This is in sharp contrast to the government's approach to an existing criminal law against domestic violence under Sec 498A. Here, the Modi Government wants to dilute the law and make it non-cognizable and bailable. In one case, it wants to make a civil matter a criminal offence and at the same time, in another matter of concern to women of all communities, it wants to eliminate punishment for a criminal offence of domestic violence or dowry demands. Women's organizations are fighting the government's moves on this count.
The right to divorce or the act of divorce itself is not a criminal offence. Personal laws of all communities give the right to divorce to both men and women. The issue is what is the method of divorce accepted by law. In the experience of women's organizations in India who are working with women who are traumatized because of domestic disputes or domestic violence, the fear of abandonment or divorce is very real and this cuts across communities. For various reasons, including financial and cultural, women rarely move for divorce. Easy divorce procedures almost always favor men. There are no level playing fields in patriarchal societies like India. Therefore, women who face divorce threats require mechanisms and procedures, whether through conciliation or counselling, which they believe can help prevent arbitrary divorce and save their marriage. Arbitrary and instant triple talaq was thus opposed by most women's organizations.
In August this year, the Supreme Court in its welcome judgement held that the practice of instant and arbitrary triple talaq known as talaq-e-biddat was invalid. Contrary to common public perception, it did not strike down all forms of triple talaq as being invalid, but only one specific form, that of talaq-e-biddat. The 395-page judgement of ends with a short order: "In view of the different opinions recorded, by a majority of 3:2 the practice of talaq-e-biddat - triple talaq is set aside." It is signed by all the five judges involved, namely Jagdish Singh Khehar (Chief Justice), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and S Abdul Nazeer. Nowhere in the judgement or even in the differing opinions recorded by the judges does even one of them refer to the practice as a criminal offence. The main argument put forward by the majority was that it was not an essential part of the Koran, it was not practiced in a majority of countries governed by the sharia or where there were large Muslim populations. The judgement actually went against the Modi Government's arguments which were essentially against Muslim personal laws in favour of a uniform civil code.
The minority judgement of Chief Justice Khehar and Justice Nazeer argued against any legal intervention on grounds that it was not for the courts but for the legislature to decide. However, their comments made it very clear that while they suggest that a "suitable" law be adopted, they uphold the validity of practices which in their opinion are an essential part of religion, including triple talaq. It is therefore completely misleading on the part of the government to claim sanction of of the Supreme Court in pushing through the bill. In fact, what the minority judgement said is "If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining 'talaq-e-biddat' (three pronouncements of 'talaq', at one and the same time) - as one, or alternatively, if it is decided that the practice of 'talaq-e-biddat' be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate."
In several countries governed by the sharia, when the talaq is given three times at one and the same time, it is by law considered as only one talaq. This is the practice referred to by the then Chief Justice Khehar when he stated "that three talaq is redefined as one." In this method of divorce, there has to be a minimum period of a month, or one menstrual cycle, before the second talaq is pronounced. And then another month before the third talaq. This also provides time and space for reconciliation procedures. This is far from the criminalization approach which is the main thrust of the Modi Government bill.
In some countries like Pakistan and Bangladesh, there are provisions for imprisonment of the husband for between three months to one year. But this sentencing is enforced if the husband seeking divorce violates any of the legal procedures for divorce which include mandatory counselling and reconciliation discussions by designated authorities and so on. Mechanisms are provided for these procedures. But the present bill provides for no such procedures or mechanisms. These are issues which require further discussion and consultation.
Thirdly, the bill is self-contradictory. While the stated purpose is to invalidate talaq-e-biddat, it actually recognizes the talaq-e-biddat victim as being divorced as it speaks of custody of the children. Why should the issue of custody of children arise if the divorce is invalid and the woman is still married?
Further, the bill speaks of a subsistence allowance for the woman and her dependent children to be decided by a magistrate. If the man is in jail for three years, who will pay the allowance? Will the Modi Government do so? And when the man comes out of jail, will the government guarantee that he will live with his wife? Obviously not. Then in what way does the woman benefit? There are laws in existence which guarantee better rights for women including the civil law against domestic violence which guarantees a portion of the shared home. The bill does not mention anything about the right to residence.
It is precisely because there are many issues which require further discussion including the question as to whether such a bill is required at all that the demand for reference to a Standing Committee should get wide public support.
The credentials of the Modi Government in being concerned about women's rights are questionable. The haste with which it wants to push this bill has more to do with narrow sectarian agendas than with the rights of Muslim women.
(Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha.)
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