It is ironic that a government which pledges support to the concept of a uniform civil code, instead of strengthening an existing law which secures the rights of Muslim women, is proposing to place them under a special statute meant only for Muslim women in order to gain political mileage.
“When they have a brother like Narendra Modi, they do not need to be afraid of anyone,” BJP MP Meenakshi Lekhi assured Muslim women during discussions in the Lok Sabha when the Bill criminalising instant triple talaq was introduced and passed in great haste on December 28.
Yes, indeed. With Modi as their brother, they have nothing to fear. The might of the BJP government is with the Muslim woman when she is seeking protection against her husband. But not otherwise. Not when she is being attacked by rioting mobs during communal violence, when her house is torched or when she is threatened with gangrape. Not when she is the widow of a man lynched by cow vigilante mobs. Not even if she is a Hindu who wishes to marry a Muslim. Modi will not come to her aid even when she is beaten by her husband or thrown out of her home. But if her husband pronounces instant triple talaq, he will be there for her.
The prime minister has expressed his concern for the plight of the Muslim women who are victims of instant talaq time and again. During the election campaign in Uttar Pradesh, he shed tears over the plight of his poor ‘Muslim sisters’ and vowed to bring justice to them. He referred to their plight again while campaigning in Gujarat and declared that banning triple talaq is not a political question, but a matter of bringing justice to Muslim women and his government would soon enact a law criminalising triple talaq.
While introducing the Bill in the Lok Sabha, law minister Ravi Shankar Prasad reaffirmed: “Ye siyasat nahi, insaniyat hai (This is not politics, this is humanity)”. A draconian law was placed upon the plank of humanity – and the opposition was found floundering. After all, it is not easy to oppose a Bill clothed in the language of humanity. Anyone opposing it would risk being labelled a male chauvinist, unless one had a cogent and convincing argument to counter it. But objections raised by Asaduddin Owaisi could easily be brushed aside as the rant of a “firebrand Muslim fundamentalist”. A rudderless opposition caved in and despite protests by some members, the Bill was endorsed and the government won the day.
The Bill could not be countered on the plank of violating the human rights of Muslim men, though when you scratch the surface, that is exactly what the Bill is all about. Demonising Muslim men either as jihadis (terrorists) or love jihadis, beef eaters or cow baiters, or as being ‘anti-national’, has been an important political plank for the Modi government. Incarcerating Muslim men for pronouncing triple talaq fits in perfectly with this master plan. But the public at large was not convinced. This was pure rhetoric.
What needed to be exposed was the hollow claim that the Bill will protect Muslim women. Public opinion had to be generated, stripping the Bill of its veneer of gender justice. Triple talaq had already been struck down by a five-judge constitutional bench of the apex court. The judgement had not even hinted that a statute criminalising triple talaq be enacted. Yet the government projected as though there was an urgent need to enact this statue as per the Supreme Court mandate. However, it was not a cakewalk for the government in the Rajya Sabha and the Bill had to be deferred.
My concern is that after the Supreme Court verdict, uttering the words ‘talaq’ thrice does not dissolve the marriage, but filing criminal charges against the husband for pronouncing these words certainly will. An enraged husband will either pronounce talaq in the approved form over a period of 90 days or simply desert her as Hindu husbands do, leaving her high and dry.
The terminology of “sustenance allowance” used in the Bill adds insult to injury. We have moved far ahead since when ‘sustenance dole’ was awarded to deserted wives. Today, a married woman is entitled to an equal share in the family resources and has a right to reside in the dwelling house (matrimonial residence) free of violence or even the threat of it.
The provision granting right over her children is being hailed as a positive move since Muslim personal law denies Muslim women right over their children beyond a certain age. This is a fallacy. During custody battles, the courts are bound by one principle alone – the best interest of the child. Often courts decide that the best interest of the child lies with the mother. A Muslim couple is governed by the Guardians and Wards Act of 1890. In any case, when the marriage is intact, where is the question of deciding custody?
The words “sustenance allowance” and “child custody” tend to convey that utterance of the words talaq thrice has, in fact, dissolved the marriage, a position which is contrary to the Supreme Court verdict.
The Protection of Women from Domestic Violence Act was enacted in 2005 to protect the rights of all women and entitles them to claim rights during the subsistence of marriage. This statute is applicable to women across the religious divide. This is a uniform civil law. There is already a well-oiled machinery that is provided under this statute. Though it is not in the best shape, the challenge is to render it more receptive to the needs of women.
It is ironic that a government which pledges support to the concept of a uniform civil code, instead of strengthening an existing law which secures the rights of Muslim women, is proposing to place them under a special statute meant only for Muslim women in order to gain political mileage. There was no mention of this statute during the Lok Sabha debates.
What could the reason be – ignorance or design? Rather than protecting the civil rights of Muslim women, incarcerating the husbands appears to be the need of the hour. Hence, not just actual instances of instant triple talaq, but even a mere suspicion of it will suffice. Any busybody can approach the police. The offence is non-bailable and non-compoundable. Soon there will be talaq vigilante squads along the lines of cow vigilantes.
We are told that this is what Muslim women themselves have asked for. Some Muslim women have welcomed this Bill – Shayara Bano, Ishrat Jahan, Aafreen, Farah Faiz, Zakia Soman, Noor Jehan and members of their group the Bharatiya Muslim Mahila Andolan (BMMA). Of these, Jahan has recently joined BJP. Faiz, an intervener in the triple talaq case, is the president of RSS-affiliated Rashtrawadi Muslim Mahila Sangh. Bano was recently facilitated by the UP finance minister and earlier in Pune by BJP leaders, even while she is fighting a legal battle to get her children’s custody. These have become icons for the ruling party.
The co-founders of BMMA, Soman and Noorjehan Safia Niaz, had written a letter to the prime minister in December 2015 demanding codification of Muslim family law. They had flagged instant triple talaq and polygamy as the most pressing problems facing Muslim women overriding concerns of poverty, illiteracy and marginalisation. Rather than using existing legal provisions to help these women, they had asked for a new law. The argument then was that women are too poor and hence unable to approach the court. How will the same women now use the daunting criminal legal process?
There may be a few other Muslim women who are also not convinced that triple talaq has already been declared invalid by the Supreme Court. We saw them on television screens distributing sweets after Lok Sabha passed the Bill.
They were also shown distributing sweets after the Supreme Court verdict. Then what went wrong? Four months later, we are told that the court verdict has not stopped triple talaq and a criminal law is needed as a deterrent. The logic of a stringent law as deterrent is deeply flawed. It has not worked in cases of dowry murders, rape or child sexual abuse. How will it act as a deterrent in triple talaq cases?
If after initial arrest, the husbands are out on bail and cases drag on for years, what will the next demand be – instant justice by public flogging? Will this demand be raised on the basis that some Islamic countries have it? And will Modi as the brother and saviour of Muslim women come to their aid and formulate yet another Bill to address this problem on the ground that Muslim women are asking for it?
The Muslim community, like all communities, is not divided along gender lines – women, the helpless victims of triple talaq and the brutish men who pronounce triple talaq are part of the same composite community which is being increasingly pushed to a corner where survival is at stake. They lack a political voice. Economic development has bypassed them. Marginalised from the mainstream, they live a ghettoised existence. Muslim women campaigners need to remember that Modi is not just the brother of Muslim women, he is the ‘Big Brother’ of all Muslims.
Flavia Agnes is a women’s rights lawyer.