In Shayara Bano v. Union of India, the Supreme Court of India passed a landmark judgment which set aside the practice of triple talaq. Consequently, in the occasion that a Muslim man pronounces triple talaq in an attempt to end his marriage, the marriage remains unaffected. Despite that, if a person, not necessarily his wife complains against the man, he could be arrested on a cognizable, non-bailable offence. This contradiction can become a reality with the proposed Muslim Women (Protection of Rights on Marriage) Bill, 2017.
Women’s Rights Groups at a press conference, organized by Bebaak Collective on Thursday, 21st December appealed to the Centre to not pass the proposed legislation and hold meaningful consultations with a broad range of stakeholders, particularly women’s groups. They have called the Bill a ‘myopic view of the issue’ and rejected the present form of the Bill.
Section 3 of the Bill
Section 3 of the draft legislation reads,
“3. 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.”
The provision codifies the Shayara Bano Judgment also commonly known as the ‘triple talaq judgment’, and this development is welcomed by most women right’s groups as it aligns with motive of gender justice. Muslim husbands will no longer be able to divorce their wives through ‘talaq-e-biddat’. However, the remaining provisions of the Bill are being opposed by the very people it impacts, as they are bad in law and appear to be attacking men of a particular community. Senior Advocate and women’s rights activist Indira Jaising said in the press meeting “The Bill should end at Section 3”
Redressal mechanisms against any form of abuse or when triple talaq is construed as a form of domestic violence, already exists in Section 498A of Indian Penal Code and Protection of Women from Domestic Violence Act, 2005.
Is divorce a criminal act?
Section 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.”
All laws in India must be tested against a constitutional mandate and cannot be passed arbitrarily. Section 4 of the draft legislation criminalizes the practice of triple talaq, a practice which will stand null and void by Section 3 of the Bill. This contradiction in the Bill is highly problematic and fails to provide any safeguard to secure women’s rights. For any act to be criminal in nature, it must cause an injury or harm the community at large. In this case, the intended divorce will be held void, hence the question of harm does not even arise. Warisha Farasat, an advocate who represented Bharitya Muslim Mahila Andolan in the triple talaq case, emphasized the error and said, “You cannon create a crime, when none exists and this Bill does exactly that.”
Even if for this instance, we consider that the Centre has the best interest of women in mind, why are the subjects of the Bill only Muslim women? If a Hindu man wishes to end his marriage, will he be committing a crime? If no other law considers the act of divorce a crime and then what rationale does this Bill have is unclear. The discriminatory practice of triple talaq has already been addressed by the progressive judgment, but there is an implied rhetoric in this draft legislation, which suggests that only Muslim women need further protection from Muslim men. Every religion is known to host patriarchy, and one such aspect was set aside through the Shayara Bano judgment. The urgent need to over-legislate the issue raises serious concerns. In a secular country, even in the light of personal laws, treating divorce as a criminal activity is a bit far-fetched.
The language in the Statement of Objects and Reasons
The Statement of objects and reasons of the Bill, states;
“3. In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.
4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them.”
What data source has the Ministry of Law relied upon and why did the Centre take such a drastic measure on the “assurance” of a single group before deciding to draft a Bill against members of a religious community has not been addressed in any press release from them so far. The statement of objects and reasons in this Bill which will be relied upon for interpreting the statute does little more than attach stigma to the survivors of triple talaq while giving reasons for the prompt action on the judgment by stating that, “In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat urgent legislation is necessary to give some relief to them”. The tone and fervor of the statement is highly problematic and also appears to be patronizing towards the Muslim women.
The statement applauds the Government, and leaves out the other petitioners comprising of the women rights groups in saying that the,
“the Judgment vindicated the position taken by the Government that talaq–e-biddat is against the constitutional morality…and gender equity guaranteed…”.
Hopefully the Government will now also pay similar urgent attention to other pressing issues of gender justice such as freedom of Hadiya and the erroneous judgment of the Allahabad Court setting up Welfare Committees for complaints under section 498A of Indian Penal Code, on which there is a silence so far from the government.
The way forward
Women groups, who are the primary force behind the movement seeking the end of discriminatory practices and who welcomed the judgment, vehemently opposed the draft Bill. Hasina Khan, founder of Bebaak Collective said that, “We reject the Bill and we do not want a law passed in haste”. She urged the government to take positive measures to raise awareness among the women about the judgment, and the solution is not to send the men to prison or enable harassment.
In the circumstance, that few women continue to be affected by the practice, the need of the hour is to educate the community and not to demonize the men. There is also a lack of clarity on the issue, if a third party files a complaint and the wife does not wish to incriminate the husband, what powers does she possess. How does the prosecution prove the claim, can hearsay and rumor give way to frivolous litigation?
Ayesha Kidwai, a noted professor of linguistics at Jawaharlal Nehru University, told the press that, “This is not our version of Justice”.
To read between the lines
Senior Advocate, Indira Jaising, who has been a part of the women rights movement for over four decades speaking on the Bill, called it ‘privatization of justice’, if you continue to allow personal laws and religious bodies to have a stake in operational laws in a secular country. She has argued landmark cases against discriminatory personal laws and she added, “It is time to build a wall of separation between religion and law.” This draws the attention to the motive of the government, that if the key is gender justice, then other forms of talaq should first be set aside as well.
There is a culture of fear in the country, and with the pattern of attack on minority religious communities, in the form of cow vigilantism, attack on their right to food, it is hard to come to terms with the motive behind the proposed Bill. Ayesha Kidwai called it a “fifty-six inch Bill” and the writing is on the wall on what is the source of the brainwave, which is the Bill.
Dr. Sameena Dalwai, in an article had said, “We cannot allow the Hindu right wing to use the Triple Talaq judgement as a tool in fueling hatred against Muslims. The plight of women is an easy gimmick to elicit in order to malign a community – the British did it with the Indians by pointing to Sati, child marriage and widow tonsuring. The Americans did it with Afghanistan by broadcasting stories of the public lynching of women. Under the garb of sympathy towards women, the aim was to vilify the men and thereby justify the military attack or colonial expansion.” She points the reader to read between the lines of state action, when it is proposed to ‘save’ the women of a particular community. She asks the questions that, ‘When Muslim men are killed, do Muslim women get free?.”
The Bill almost reveals the motive of the Centre in participating in the fight against triple talaq through this Bill. There appears to be one agenda on the Bill, save the women from the Muslim men. The men are painted as the perpetrators of crime, a crime that is artificially created in this case and place a reason for the men to be vulnerable to arbitrary arrest. The narrative comes as a gross misuse of a progressive judgment.
The Bill is tabled too close to the Government inaction on violence against the religious minority and hopefully will not be passed in the light of the opposition of the women it impacts. As per the norm, the Government is urged to send the Bill to a Standing Committee, or hold wider consultations involving women groups and record the voices of the Civil Society. The current Bill was drafted without any advise from the community of women survivors of triple talaq, and if the Centre has relied upon any data or women’s voices then that should be made available in the public domain.
There is a lot of uncertainty on who the Bill serves, as the Muslim women are not in favor of the Draft. It is however clear that the Bill has legal contradictions within the body of the text and is deeply flawed. To sanitize the Bill of any identity politics, biased narratives of branding Muslim women or men, it should be sent for consultations to people with lived experience and not people with an agenda or patriarchal hangovers.
Shivangi Misra is a Delhi based lawyer working with Lawyers Collective