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Is India’s Talaq bill really for Indian Muslim women?

minority Juggernaut
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Aateka Khan |

December 28, 2017 was an ominous day in the legislative history of India. It is the foreboding day that the Muslim Women (Protection of Rights on Marriage) Bill was cleared by India’s lower house, the Lok Sabha, mainly owing to the fact that the ruling party, the Bharatiya Janata Party’s (BJP) has an absolute majority in the lower house.

https://youtu.be/VV9gMpQdeTg

However, it proved to be a different matter in the upper house, Rajya Sabha, where it was introduced on 3 January 2018. The bill has provoked anger and protests both from the Muslim community and belatedly from the opposition parties, including the Congress party. The BJP, bereft of the requisite numbers in the Upper House to clear the bill, will now have to confront serious opposition. Even its usual allies such as the Telugu Desam Party, the AIADMK and the Biju Janata Dal have severely criticized the penal provisions of the Bill. The Congress party has now called for a parliamentary committee to be constituted so that the controversial bill can be revisited.

The Government has received widespread criticism for making misleadingly claims that the bill is catering to the current need of the hour, being done for gender equality and is a direct response to the Supreme Court’s directive to the government to ban the controversial practice – of triple talaq- through the enactment of the law.

Three of the four main schools of Sunni Islamic jurisprudence – Shafi’i, Maliki and Hanbali agree to a certain extent that the practice should be disowned. Ahle Hadees and Shias have also disallowed Triple Talaq and consider quantify what is said in one sitting as one pronouncement.

Read more: Disenfranchising The ‘Other’

Indian Supreme Court declares instantaneous triple talaq ‘null & void’

This August, a five member bench of the Supreme Court comprising of judges that belonged to different faiths had declared, with a split majority of 3:2 that the pronouncement of Talaq-e-Bid’at or the instant and irrevocable Triple Talaq in one sitting, was a “manifestly arbitrary” practice and was unconstitutional and therefore null and void. The Supreme court also said, “Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place.”

Subsequently, the ruling party, BJP, claimed there was an urgency in that despite the Supreme Court ruling Triple Talaq continues unabated. It has proposed a highly questionable parliamentary bill which seeks to criminalize an act [of triple talaq], which ironically now after the Supreme court ruling has no legality.

Ironically, what began as a purely punitive measure has now transformed into a mere act of concession. As a matter of fact, Talaq-e-Bid’at or Triple Talaq that transpires in one sitting has no Quranic authority. In fact, bid’at is Arabic for innovation which in itself is disapproved by Islam.

BJP’s Muslim Women (Protection of Rights on Marriage) Bill

The bill proposed makes the pronouncement of talaq-e-biddat “void and illegal.” According to clause 3 of the Bill, “Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.”

Clause 4 of the Bill states, “Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.”

And Clause 7 says, “an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the Code.” (The Code of Criminal Procedure, 1973)

Read more: Saudi women & Vision 2030: A test of Prince Salman’s reforms

Even while conceding that Triple Talaq is problematic and has the potential to take on menacing proportions in a few cases, the counter initiative is extreme to say the least. The Central Government’s so called proactive stand in support of the gender rights of a miniscule percentage of Muslim women reeks of sheer tokenism if not outright malevolence.

The Bill holds the spectre of being the last nail in the coffin should a Triple Talaq victim seek recourse under the umbrella of such legislation. It preposterously proposes punishment of triple talaq for the male of 3 year incarceration. It is not clear how this is a viable remedy that will help the couple to resolve their differences once the husband is forced to spend three years behind bars. In addition, the prolonged absence of the man, who in the vast majority of cases functions as the bread-winner of the family results in the destruction of the family structure.

The Bill, instead of keeping in line with the verdict of the Supreme Court to ensure the pronouncement of Triple Talaq is treated as invalid, uses the language of divorce, and speaks of the wife’s sustenance allowance as well as focusing on her custody rights.

Furthermore, if Triple talaq is not legal and not considered divorce then why do Clauses 5 and 6 of the Bill talk of, ” a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children,” and “shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband.”

If the bill is passed in its current form, it will lessen the struggle for a minority of wives who wish to separate with their husbands, since the only thing that will be required of them will be to incite their husbands enough to drive them to the pronouncement of Triple Talaq, setting the stage for the law to take its course. It will, however, serve no purpose for the majority of wives who actually seek reconciliation as opposed to a complete annihilation of the marriage.

 

It will, however, serve no purpose for the majority of wives who actually seek reconciliation as opposed to a complete annihilation of the marriage. This is also representative of the rising cases of rape that use a harsh punishment as a deterrent to no avail.

 

A Government Blindfolded on other Muslim rights

The government’s supposed support for Muslim women  through this bill is in stark contrast to the atrocity of acts and the absolute silence that follows from the Prime Minister when Muslims are lynched to death for alleged beef in their fridges, for wearing skullcaps on a train or for transporting cows is outrageous to say the least. In more recent times, the gruesome murder of Mohammad Afrazul – purportedly killed for marrying a Hindu woman- was being video-recorded while he was being hacked and burned to death in order to quite simply teach Muslims a lesson.

Given these incidences most Muslim women will naturally be circumspective towards the professed new-found love showered on them by their putative “brother” Narendra Modi. The bill illustrates BJP’s continued attempt to demonize Muslim men and confirms the severe reservations and suspicion harbored by Muslims towards BJP’s intent.

Read more: India’s Supreme Court Strikes Down ‘Instant Divorce’ for Muslims

Historical Context of the origin of Triple Talaq

Ironically, what began as a purely punitive measure has now transformed into a mere act of concession. As a matter of fact, Talaq-e-Bid’at or Triple Talaq that transpires in one sitting has no Quranic authority.

In fact, bid’at is Arabic for innovation which in itself is disapproved by Islam. Three of the four main schools of Sunni Islamic jurisprudence – Shafi’i, Maliki and Hanbali agree to a certain extent that the practice should be disowned. Ahle Hadees and Shias have also disallowed Triple Talaq and consider what is said in one sitting as one pronouncement.

The Hanafi school has a large following in India and continues to uphold Talaq-e-bid’at as completely valid despite its undesirable nature. The ulema belonging to this specific school of thought form the backbone of the resistance against the elimination of Triple Talaq.

The context in which the innovation of Triple Talaq acquired acceptance in the first place begs some serious reflection. History demonstrates that it was first allowed by Hazrat Umar, the second of the four main Caliphs, as a disciplinary measure that could serve as a check and balance procedure to provide protection against the misuse of the Talaq process.

Despite the fact that the words could be repeated without producing any particular performative effect, their illocutionary abusive potential is misused and exploited quite frequently.

Caliph Umar, who was known for his severity and harshness declared that such pronouncements of Triple Talaq should be treated as conclusive and actionable with immediate effect along with a punishment of 100 lashes for the husband performing it. The objective that this new practice aimed to achieve was the punishment given to erring husbands while at the same time attempting to dissuade flippant behavior.

In modern times, Triple Talaq has clearly outgrown its purpose and has shifted its purpose of serving as a deterrent to patriarchal maneuvers into unnecessarily victimizing the wife. The All India Muslim Personal Law Board (AIMPLB), instead of taking the initiative of repealing a practice that has become counter-productive both in its function and implementation, has chosen to defend it with conviction.

Its perpetual attempts at shielding this controversial practice not only stands in stark opposition to Quranic injunctions and go completely against the traditions of the Prophet but manages to revolt against the very essence of Islam which encourages patience and kindness.

Its perpetual attempts at shielding this controversial practice does not only stand in stark opposition to Quranic injunctions and go completely against the traditions of the Prophet but manages to revolt against the very essence of Islam which encourages patience and kindness.

The Minority Complex and Religious Patriarchy

India is home to the third largest Muslim population in the world, however the community still constitutes as a minority in the country. In deference to the deeply cultivated insecurities and divided sentiments of the Muslims in India, there has been a shameful unwillingness and a shocking lack of concern on the part of successive governments to tackle the tragic plight  faced by the community at large. Triple Talaq just happens to be one of the more prominent injustices done to Indian Muslims.

Read more: Muslim Women Welcome Govt’s Triple Talaq Stand, Want Ban At The…

India still continues to follow the Shariat Act of 1937 passed by the British, even after gaining independence. Since then there have been a few amendments to the Sharia Law but no decisive alteration has taken place that can be used to offer remedies to the tremendous difficulties that have been endured by the Muslims of India due to the sheer apathy and resentment of successive governments that have ruthlessly disowned the Muslims of India.

The religious patriarchs managed to successfully stall and delay all possible reforms by further harping upon the fear of the community’s identity which was already under threat. This adamant resistance put up by the ulema to endorse necessary reforms may come across as extreme when compared to other Muslim states. The fundamentally conservative Islamic Kingdom of Saudi Arabia, and India’s own neighbors’ such as Pakistan and Bangladesh have all managed to effectively curb and control the menace of Triple Talaq. Identity politics has undoubtedly magnified the inherent problem of a patriarchal stronghold over an antiquated and outdated practice.

Despite this, The AIMPLB has been both reluctant and ineffective in abrogating the practice of Triple Talaq, even circuitously, through a model nikahnama. The model nikahnamah that was created by the AIMPLB in 2005 briefly skims over the issue of Triple Talaq making it seem like something that is insignificant and without any considerable consequences. Moreover, the perusal of the model nikahnamah is neither binding in nature nor is it something of which others are aware.

It is generally believed in India that the BJP government, through their zealous advocacy of the ban of Triple Talaq, is following the Hindutva agenda of legalizing a Common Civil Code. However, in such a bill, Muslim women will once again be subject to a specific bill made for them.

Read more: Triple talaq unconstitutional, violates rights of Muslim women: Allahabad HC

No Redressal of Real Causes of Indian Muslim Backwardness

The severe lack of education and awareness is a central issue that works against the interests of Muslim women. Islam is the only religion in India that conceives marriage as a binding contract meaning that the terms of the contract can be drawn catering to the specifications of the parties involved. Finally, this brings me to the main contention of my article. Reform, in the form of a push from outside of the community, is not likely to be effectual in any given circumstance. When change comes from the top of the hierarchy it is in the form of a reflex impulse which culminates into an imposition. Such futile attempts at reform seldom gain acceptance or efficacy.

The root cause behind certain practices of gender aggression such as the Triple Talaq are the direct result of the existing social and economic discrepancies that faced by the entire community. The Sachar Committee report of 2006, was commissioned by the Indian government to study the social, economic, and educational conditions of the Muslim community of India. This report exposed the abysmally backward state of the Muslims in India, who were ranked even lower than the Scheduled Castes and Tribes with regard to the disabilities they faced. The Report also highlighted the widening gaps between the Muslim populations while demonstrating their disproportionate representation in a slew of developmental indices. Educational and economic backwardness are the key factors that are responsible for fostering gender inequality in the community. The causal nexus between illiteracy, economic dependence and gender disparity renders the females of the Muslim community susceptible to patriarchal manipulation in many different forms.

The causal nexus between illiteracy, economic dependence and gender disparity renders the females of the Muslim community susceptible to patriarchal manipulation in many different forms.

 

It has been more than a decade since the Sachar Committee Report identified the glaring under-representation of Muslims in all areas of development. Despite these findings, no steps or counter measures have been taken to address the plight of the Muslims not to mention that certain areas like the IPS (Indian Police Service) Muslim percentage has managed to drop even further. In the abysmal absence of a collective will within the community, the Supreme Court judgment seemed to offer some hope.

From a Controversial Verdict to a Warped Bill

Shayara Bano, who became a tragic victim of Triple Talaq in 2015 while visiting her parent’s home, became the symbol of the campaign against the iron fist of the patriarchy. She was finally vindicated when the Supreme Court of India ruled that the Triple Talaq is not only unconstitutional, but also against the very spirit of Islam in August 2017.

However, Faizan Mustafa, Vice-Chancellor of NALSAR University of Law in Hyderabad, made a valid point when he observed that the judgment was in fact a contravention of the constitutional right to freedom of religion which itself grants freedom to all peoples to follow any religious denomination and sect thereof. Therefore, even if I am in agreement with the abolition of the practice on account of being a Muslim, it is an infringement on the right to belief of a fellow Muslim nonetheless.

Many have contested images of some burqa clad women celebrating the ban on triple Talaq as something that is fake. The BJP think tank the Rashtriya Swayamsevak Sangh (RSS) which is a Hindu right-wing organization which floated the Muslim Rashtra Manch in 2002, has miserably failed in its efforts to reach out to Muslims in any capacity. There have been no signs of Muslim women considering the BJP as their well-wishers or care takers as a consequence of such malicious political propaganda. If the government really wants to appease the Muslim women it will have to think of more effective ways to accomplish this feat.

Indira Jaising, who is the sole female advocate who argued the case and hailed the Supreme Court ruling as merely taking baby steps towards gender justice represented many people when she expressed her disapproval at the tabling of the Bill. Many progressive women’s organizations like the Bebaak Collective, the All India Democratic Women’s Association and Bharatiya Muslim Mahila Andolan have also expressed their deep disappointment with the Bill which they view as a harrowing disservice to all the women belonging to the Muslim community. The handing over of the Damocles sword to the Indian Muslim wife by the Government of India does not exactly conjure up a picture of conjugal happiness or imminent prosperity for the Muslim minority that continues to live as a marginalized community whose rights are not only neglected but ruthlessly denied.

Aateka Khan is an Assistant Professor at Bharati College, University of Delhi. She has been engaged in teaching English literature to undergraduates since 2001. Before she started teaching, she was involved with Katha (a Delhi based NGO) where she had the opportunity to interact with underprivileged women and children besides doing editorial work. She has also won the Katha award for translation of an Urdu short story. She is currently pursuing research on the issue of disguise in the travel writings of Sir Richard Francis Burton and has presented papers in Oxford and Berlin on the same.

Aateka Khan is an Assistant Professor at Bharati College, University of Delhi. She has been engaged in teaching English literature to undergraduates since 2001. Before she started teaching, she was involved with Katha (a Delhi based NGO) where she had the opportunity to interact with underprivileged women and children besides doing editorial work. She has also won the Katha award for translation of an Urdu short story. She is currently pursuing research on the issue of disguise in the travel writings of Sir Richard Francis Burton and has presented papers in Oxford and Berlin on the same.


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