On Thursday, the Lok Sabha passed the triple talaq bill amid a walkout by the Opposition, which had demanded that the bill be referred to a ‘joint select committee’.
While the Bharatiya Janata Party (BJP) and many supporters have lauded the passage of the bill, the Congress has termed it unconstitutional. Even women activists have criticised it and termed it a “political move” aimed at polarising the country before the general election next year.
A group of 40 women rights activists has released a statement detailing their concerns over the Muslim Women (Protection of Rights on Marriage) Bill, 2018, in its present form.
They have urged the members of Rajya Sabha to withdraw the bill and and significantly re-draft it in the interest of Muslim women.
The bill is pending in the Rajya Sabha.
The group termed the bill “arbitrary, excessive, and violative of fundamental rights enshrined in the Indian Constitution.”
They further said that if this bill is passed, it would make Muslim women more vulnerable to violence, as well as harm their economic, household and social security.
The statement was signed by activists and women’s groups, including Ayesha Kidwai of Jawaharlal Nehru University (JNU), Kavita Krishnan of All India Progressive Women’s Association (AIPWA), Shabnam Hashmi of Anhad and Nivedita Menon.
It has also been signed by groups like Bebaak Collective, Kashmir women’s collective, Mahila Sarvangeen Utkarsh Mandal (MASUM), Women’s Research & Action Group and queer feminist LBT collective LABIA, among others.
The activists have raised concerns including that the bill takes a step backward in terms of providing economic and social support for aggrieved Muslim women. Here are the broad concerns raised by the activists:
This Bill disregards the very fact that its objective — to protect the rights of married Muslim women and to prohibit divorce by pronouncing ‘talaq’ by their husband — has already been achieved by the judgement of the Supreme Court.
The Supreme Court in Shayara Bano’s case held that the practice of ‘talaq-e-bidat’ is manifestly arbitrary, and therefore, unconstitutional. An act that has no legal consequences being made a criminal offence, cognizable and non-bailable is manifestly arbitrary and therefore, violative of Article 14.
There is no rationale to criminalise the practice of talaq-e-biddat and imprison Muslim men. The effect of the Supreme Court’s judgment is that the marriage is legally valid and the persons continue to be lawfully wedded. Now, if the law is passed, the Muslim men will be incarcerated, thus violating the rights of conjugality of these two persons. Criminalising the husband would also lead to unwanted separation between the couple, against the wishes of the wife.
Since Muslim marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature. Penal action to discourage the practice of instant triple talaq is a myopic view as it leaves many other issues of economic and social security of women unaddressed.
Using penal actions to leading to imprisonment to discourage the practice of triple talaq will not help in getting justice for women. The government should strengthen the negotiating capacities of women by providing them economic and socio-legal support rather than criminalising the pronouncement of triple talaq.
Penal provisions in the bill will make Muslim women more vulnerable to violence from their matrimonial household, as the marital family members would be hostile and blame the woman for the husband being in jail.
The pronouncement of triple talaq having no legal consequences on the marriage means that such a proclamation by a Muslim man is essentially a desertion of the wife. In any of the Personal Laws, the desertion of wife by a man is not a criminal offence. Therefore, while the bill aims to criminalise the pronouncement of talaq, in effect, it is only criminalising the act of desertion of a Muslim wife by her husband. Criminalising desertion by Muslim men, which constitutes only a civil offence for men of all other religions, is discriminatory under the Constitution.
If there is violence within the marriage in addition to the pronouncement of triple talaq, the woman could use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. These two laws, taken together, represent a wide spectrum of legal options available for women survivors of domestic violence, encompassing both criminal and civil provisions.
No economic and socio-legal support is provided by the government in the bill to women, children and other dependents, when the erring men are put behind bars. The bill therefore, does not provide anything by way of additional rights to the existing laws already in place. In fact, the bill takes a step back in only providing for subsistence allowance for the woman.
The bill talks about providing “subsistence allowance” for the aggrieved Muslim woman. Subsistence allowance is not defined and is open to interpretation.
The bill allows for the aggrieved woman as well as anyone related to her by blood or marriage to be the complainant. There is no provision for a relative to seek the consent of an aggrieved woman before filing a complaint. The problem becomes particularly acute in the case of inter-religious marriages of Muslim men with a woman of another religion.
The punishment prescribed in the Bill is up to three years, and makes the offence a cognizable and non-bailable one. The same is draconian and disproportionate. A punishment, to be just, should have only that degree of severity which is sufficient to deter others.
Law Minister Ravi Shankar Prasad has said that the practice is still “continuing unabated”. He has pegged the number of divorce cases pronounced by way of triple talaq to 400 in 13 months. This data, for a country as large as India, is not enough to draw conclusions and create a criminalising bill.
The Law Minister also said that there is an urgent need to criminalise triple talaq, and hence the Ordinance was passed. If it was as urgent, why was no legislation passed against it until after the SC judgement? This is a move to serve political ends than truly meeting the needs of Muslim women.
The move to imprison Muslim men will add to the prevailing insecurity and alienation of the Muslim community. Criminalisation of instant triple talaq will further stifle the voices of Muslim women instead of offering them avenues for justice.
(With PTI inputs)