Amid Politicisation of Triple Talaq, Let's Not Forget Why the Law Is Really Needed

The question of gender justice for Muslim women remains mired in patriarchy and politics.

After failing to push the triple talaq Bill or the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Rajya Sabha during the monsoon session, the Union cabinet has approved an ordinance making instant triple talaq a punishable offence. A law against triple talaq is the need of the hour. However, it would have been ideal if both houses of parliament had passed the Bill unanimously. This was very much possible, especially after some crucial amendments were made to the original draft.

Before examining the Bill, we must state why a law is required despite the Supreme Court setting aside triple talaq last year. The argument that following the SC judgment, triple talaq is a non-issue does not hold water. We have received 50 cases of women in the last one year. On cursory analysis, the scenario is typically this: The husband throws his wife out instantly after uttering talaq. Now, where would she go for help? Where would she reside? How will she get custody of her children? Who will help her retrieve her belongings? From where will she get maintenance? The judgment gives her no protection against this arbitrary treatment in practice.

The husband continues to behave as he pleases despite the judgment. There is no accountability mechanism for a man who indulges in unilateral action, breaking the marriage in an instant. The proposed law enables the aggrieved woman or her blood relative to file a complaint in such a scenario.

Secondly, the proposed law has made the offence of triple talaq compoundable – at the behest of the wife – leaving scope for dialogue, reconciliation and reunification between the couple. It seeks to address a highly unequal situation by granting certain powers in the hands of the wife. It attempts to make the husband accountable for a serious relationship such as marriage. The magistrate can grant bail should the compromise take place and should the wife so desire.

It is unprecedented that the wife will have a say in her own divorce. The right to khula largely remains on paper in our country.

Thirdly, the wife will get custody of her children as well as maintenance. The argument about how can a jailed man provide for his wife’s maintenance needs scrutiny. This argument is based on a patriarchal assumption that a wife intends to send her husband to jail. In reality, the overwhelming number of women who approach us are extremely eager to save their marriage. They go to great lengths and are willing to make compromises if the husband is willing to continue the marriage.

Most women would register an FIR only when they have exhausted all means of negotiation and compromise. We have found women getting overwhelmed when the husband “allows” her to keep her children. They do not want to pursue any further action after that. We have often seen a woman forgiving her husband saying it is her bad luck or destiny.

It is only on the rarest of rare occasions that a woman wants to see her ex-husband behind bars. The conservatives are projecting Muslim women as villainous characters when they voice their concerns about the “poor jailed husbands”. Ideally, we want the law to lay down a procedure of divorce based on the talaq-e-ehsan method. Ideally, we want a codified Muslim personal law governing all aspects of marriage and family. Hindu community got the Hindu Code Bill 60 years ago but Muslims are deprived of a Muslim Code due to various reasons.

Aspect of criminalisation

The brouhaha over criminalisation needs to be addressed here. Another way of looking at it can be how do we bring about parity to enforce accountability in a highly tilted relationship? Besides, criminalisation is not new in women-centric laws. The laws against dowry and bigamy too send men to jail. And these are not Muslim men. The bigamy law is applicable to Hindu marriages.

Sometimes, we can be patriarchal without even realising it. Or is it that we are so obsessed with the fact that the ordinance is being brought by a BJP government that we do not mind throwing the baby out with the bathwater? But the Muslim woman struggling hard for years thinks somewhat differently. The liberals must appreciate that it has been a long arduous and mostly lonely battle for her. Besides, BJP has been in power for only four years now; needless to say, Muslim patriarchy precedes BJP government. Appreciating a good move of the government (although ordinance is not law and we wish the government collaborates with opposition) does not make one less secular. Besides, the central character here is the Muslim woman and not so much the government or political parties. The climate brought about by the political rise of Hindutva forces has led some to conclude that the time is not right. But the time for women’s equality is never right.

The question of gender justice for Muslim women remains mired in patriarchy and politics. There are many hurdles in the path of Muslim women seeking gender justice which is their Quranic as well as constitutional right. The biggest barriers are the conservative clergy opposed to reform in personal law apart from the political parties with their narrow electoral calculations.

On the one hand, there is little or no democratic engagement by religious or voluntary groups with Muslim women. This has led to a lack of understanding of the realities in her life and inadequate appreciation of her condition. The weariness in some activist circles towards all things religious has not helped the Muslim woman either. But this loss is more than made up by the overwhelming support of the general public to the Muslim women’s’ movement which is based simultaneously on Quranic and democratic rights. This highlights the brilliance of the Indian constitution.

The conservative personal law board is openly adamant about its unjust position based on a patriarchal view of women and religion. They are supported by a couple of legal luminaries who have been working overtime to trivialise the Muslim movement for gender justice. All their complicated arguments and legal-speak aim at preserving the male-dominated status quo and to make light of the suffering that women are undergoing.

Perhaps consensus among political parties on such a “sensitive” issue will remain a distant dream. The BJP understandably wants credit for the law but it defies logic as to what prevents the Congress from owning it.

Zakia Soman and Noorjehan Niaz are co-founders of Bharatiya Muslim Mahila Andolan.