By mak­ing it pun­ish­able, triple talaq, ren­dered il­le­gal any­way, has be­come an of­fence greater than any in the Pro­tec­tion of Women from Do­mes­tic Vi­o­lence Act

India Today - - INSIDE - By Malavika Ra­jko­tia

In a bid to res­cue her per­sonal law from the grip of per­verse cus­tom, Sha­yara Bano pe­ti­tioned the Supreme Court of In­dia to de­clare talaq-e-bid­dat (in­stant triple talaq) il­le­gal.

None of the op­po­nents was in favour of triple talaq ei­ther, but they cau­tioned against po­lit­i­cal mo­ti­va­tions in the name of the ‘Mus­lim woman’s cause’. They ar­gued that strength­en­ing her eco­nomic rights would be more em­pow­er­ing than keep­ing her in a mar­i­tal bond that sur­vived only be­cause the hus­band could not de­clare talaq three times in quick suc­ces­sion. Such op­po­nents were de­clared ‘anti-abo­li­tion­ists’ or ‘pseudo-sec­u­lar’.

Even­tu­ally, the Supreme Court de­clared talaq-e-bid­dat as il­le­gal in a bal­anced judg­ment that main­tained the right to free­dom of re­li­gion even while trim­ming the per­ver­si­ties of cus­tom. Bano’s pur­pose was served by the judg­ment.

Now the gov­ern­ment has made good the con­cern of the ‘anti-abo­li­tion­ists’ with a pro­posed bill that does not just re­it­er­ate the Supreme Court judg­ment but also seeks to crim­i­nalise the pro­nounce­ment of triple talaq.

The ‘state­ment of ob­jects and rea­sons’ for the bill is mis­lead­ing: it claims the judg­ment vin­di­cates the gov­ern­ment po­si­tion. No bill re­quires such an as­ser­tion ex­cept for pro­pa­ganda, which is not the pur­pose of leg­is­la­tion.

The state­ment also pro­claims that the Supreme Court judg­ment has not been a deterrent to the prac­tice of “triple talaq” and that the cus­tom con­tin­ues. Thus, it is pro­posed that the of­fence now be made pun­ish­able.

There is no statis­tic or de­tail or ex­pla­na­tion as to the pur­pose served by crim­i­nal­is­ing an act that has no le­gal ef­fect after the judg­ment.

The bill es­tab­lishes the case of the so-called “pseudo-sec­u­lars”: it is not about Mus­lim women. In its pa­tri­ar­chal thick­ness, the bill re­duces the Mus­lim woman’s ex­ist­ing rights in the fol­low­ing ways.

First, it de­clares triple talaq il­le­gal (which it al­ready is), then pro­ceeds to com­pen­sate a woman sub­jected to it with a mere sub­sis­tence main­te­nance al­lowance from the hus­band. The bill thus lim­its her ex­pan­sive eco­nomic rights which, un­der the Pro­tec­tion of Women from Do­mes­tic Vi­o­lence Act, 2005, en­com­pass needs and rea­son­able wants in con­so­nance with the life­style in the mat­ri­mo­nial home.

Sec­ond, the bill awards women thus (non) di­vorced cus­tody of their mi­nor chil­dren. This pro­vi­sion be­trays an ig­no­rance of phe­nom­e­nal changes that have oc­curred in sec­u­lar cus­tody law. It in­fringes upon the in­her­ent parens pa­triae ju­ris­dic­tion of guardian­ship courts that are em­pow­ered to rule on cus­tody mat­ters in ac­cor­dance with the wel­fare of child prin­ci­ple.

Third is the ad­di­tional per­ver­sity of pun­ish­ing a man with im­pris­on­ment and (as op­posed to or) a fine for an of­fence that can­not be com­mit­ted since pro­nounc­ing triple talaq has no le­gal ef­fect any­how.

The ‘of­fence’ of say­ing talaq three times is treated as of the same grav­ity as con­tin­ual phys­i­cal, men­tal or sex­ual abuse of the wife, also pun­ish­able with a max­i­mum of three years of im­pris­on­ment un­der Sec­tion 498A of the IPC. In ad­di­tion, the bill makes such triple talaq a greater of­fence than any other un­der the Pro­tec­tion of Women from Do­mes­tic Vi­o­lence Act.

Con­sid­er­ing the noise around the “mis­use” of the law, the point of tar­get­ing Mus­lim men is made good when you con­sider that a man can now be con­victed based on the wife’s oral tes­ti­mony of him hav­ing pro­nounced triple talaq. Mean­while, mar­i­tal rape (which men of all com­mu­ni­ties com­mit) is not crim­i­nalised for fear of mis­use of law by wives since their al­le­ga­tion too would be sup­ported by her oral tes­ti­mony.

In keep­ing with the façade of skewed op­tics is the re­cent an­nounce­ment by the Gov­ern­ment of In­dia that women may now travel for Haj un­ac­com­pa­nied by men. The gov­ern­ment has ne­glected to men­tion that this is an ad­vi­sory from Saudi Ara­bia and noth­ing to do with In­dia. There would be no point in women trav­el­ling from In­dia and not be­ing al­lowed en­try in Saudi Ara­bia with­out a male es­cort.

The point is that the gov­ern­ment wants to tar­get the Mus­lim com­mu­nity while pre­tend­ing to be a mes­siah for its women. Were Mus­lim women truly con­sulted while draft­ing this bill?

Malavika Ra­jko­tia is an ad­vo­cate and au­thor of In­ti­macy Un­done, a book on the law of mar­riage and di­vorce in In­dia

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