Why Modi Government is Wrong About Triple Talaq

When the Muslim Women (Protection of Rights on Marriage) Bill, popularly known as the Triple Talaq Bill, was first introduced in Parliament in November 2017, we met the Minister for Minority Affairs, Mukhtar Abbas Naqvi, and also the National Minorities Commission members. We suggested that the Bill should be sent to a Select Committee as it required amendments. It wasn’t clear why the government wanted to criminalise the pronouncement of talaq three times in one go, which the Supreme Court had struck down.

But the ruling Bharatiya Janata Party (BJP) did not consult the minority community on the Bill. It went through Parliament just the way the amendments to the Right to Information (RTI) Act, 2005 and the National Investigation Agency Act, 2008 were passed in a tearing hurry, without a sliver of debate or discussion.

The Opposition, too, was found wanting – some staged a walk-out when the Bill was taken up for voting. The Opposition’s job isn’t to rant and shout in Parliament. The Congress, the Nationalist Congress Party, the Janata Dal (United), the Telangana Rashtra Samithi (TRS) etc., did not use the votes they command to counter the Bill.

When we went to court on triple talaq, we were warned that we were giving BJP an agenda, an opportunity to exploit the issue of Muslim women to create an environment against Muslims by raising the issue of Muslim women. Why did so many Opposition members abstain from voting on the Bill at a crucial juncture when it would have made a difference? 

Yes, there are many restrictions on Muslim women and they are fighting for their identity. But they are also fighting for their lives. Even the attacks that take place on Muslim men in the name of ‘Jai Shri Ram’ have an effect on Muslim women. People fear stepping out on the streets to protest. Ever since the BJP came to power in 2014, Muslims have been targeted and lynched. This backdrop makes us suspect that they will use the Bill not to protect Muslim women, but to make them even more vulnerable.

The BJP’s focus on triple talaq reminds me of the United States of America’s attack on Afghanistan. The US led people to believe that the Taliban was being attacked. America’s role in the rise of the Taliban was ignored. The US said that its aim was to protect women from the Taliban when the real agenda was getting access to natural resources and becoming powerful. Gender protection was just their stated agenda.

Immediately after the Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted, BJP leaders started talking about a Uniform Civil Code (UCC). If that is what they want, they should bring forth a draft of the UCC they have in mind. In five years of power, they did not produce a draft. Is altering Muslim Personal Law their idea of UCC?

Our perspective is that when the Constitution gives individuals equal rights, a Muslim woman should have the same rights as Muslim men. We say that not just instant talaq, even the talaq that takes three months should go. This is not to say that divorce should be disallowed. Our position is that a legal form of divorce should be irrevocable. If for any reason a married couple wants to separate permanently, the law governing the process should be just and equal for both men and women. In Muslim personal law, the power to divorce is only with the male.

Our idea is to change the patriarchal system, which has such a strong hold on society that rights to property, adoption, surrogacy, etc., place woman on a lower pedestal than man. This happens in all personal laws, not just Muslim personal law. This is why triple talaq is not the frame of reference for us. Our fight for gender justice is to reform the patriarchal nature of personal law.

Apart from the Women (Protection of Rights on Marriage) Act not meeting our idea of gender justice, we never wanted instant talaq to become an offence. After the Supreme Court annulled triple talaq, its pronouncement has no legal effect. Ironically, the government’s Act makes such a pronouncement valid and gives weight to the minority judgement in the triple talaq case instead of the majority.

Before the Supreme Court judgement on triple talaq, when a man pronounced instant divorce, his motive was to get rid of his wife. The husband wanted to throw her out of the house because he knew he enjoyed the protection of Muslim Personal Law. The Act on triple talaq envisages her complaining to the police. Where will she stay for the duration that she is thrown out of the marital home?

It is unclear from the Act how long the process of going to the police, then the magistrate, who will summon the husband, and the final order in the case will take. What is the woman supposed to do between the time she is thrown out of the house and the final order? Will she return to the marital home? The Act is silent on all these questions.

In fact, the government claims that men will not resort to instant talaq out of the fear of punitive measures spelt out in the Act. It isn’t clear if the government wants to save a marriage or end it. Then again, the Domestic Violence (DV) Act clearly states that a complaint has to be processed within 90 days. We support the DV Act but we also know that the process takes much longer than 90 days.

Even in cases filed under 498A, which pertains to harassment of women for dowry, the police initiate counselling for the couple at the thana. Is it the job of police to provide counselling? Is a police station the right place for counselling? For a successful negotiation between an estranged couple, it is necessary that the women should have some negotiating power, which isn’t spelt out by any of the clauses of the Act. What then is the point of rejoicing that the Act will protect Muslim women?

Most of the petitioners in the triple talaq case have supported the Bill. Mostly, their arguments come from the position that triple talaq is an un-Quranic practice. To those who view triple talaq from the prism of religion, we say, do not always try to find solutions for women’s issues in religion. We believe that religion and women’s rights should be kept separate.

The Shah Bano case did not protect or bestow rights on women. Not much was gained from the Muslim Women (Protection of Rights on Divorce) Act. In 1993, while researching in the Bombay High Court, I discovered a woman who had been awarded, in 1989-1990, a sum of just Rs 20,000 as maintenance!  

This is why I feel that looking at the triple talaq issue within the framework of religion is problematic.

It also bears mentioning that the women who spearheaded the triple talaq case – Shayara Bano and Ishrat Jahan – are both with the BJP now. They are perhaps living up to the dictum, ‘the enemy of our enemy is our friend’. Sadly, this is what the struggle of Muslim women for their rights has been reduced to now.

In six months, we will all know what Muslim women have gained from the Women (Protection of Rights on Marriage) Act. My informed guess is that it will prove ruinous for many women: my simple point is that Muslim women are simply not in a social or economic condition to oppose or take on Muslim men even in their homes. The Muslim women will be rendered even more helpless before their families, as we shall see in the next six months. Muslim men will become even more powerful now.

The BJP and its supporters say that Muslim women can now make Muslim men afraid. The exact opposite will happen. Women will be coerced, arm-twisted and blackmailed, making them even more vulnerable.  

If the government wants Muslim men to be afraid of Muslim women, then it should give women education, jobs, security and safety. They should empower women to argue and oppose their oppression in their homes. But the government is not interested in taking this course. After all, if I am empowered and can go to the Bombay High Court and to the Supreme Court, I can also ask this majoritarian government for answers to the questions raised in this piece.

Hasina Khan is founder-member, Bebaak Collective, and petitioner in the Supreme Court case on instant triple talaq.