TRIPLE TALAQ BILL: DIVORCED FROM REALITY?

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

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