Three months after the Supreme Court declared the practice of instant triple talaq or talaq-i-biddat unconstitutional, the government has decided to pass legislation making it a criminal offence. News reports have stated that a committee of ministers has been constituted to finalise the details of the legislation, comprising of Home Minister Rajnath Singh, External Affairs Minister Sushma Swaraj, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad and Minority Affairs Minister Mukhtar Abbas Naqvi.
The landmark judgement declaring triple talaq unconstitutional was passed on August 22nd by a Consitution bench comprising of then Chief Justice of India J.S. Kehar, Justice S Abdul Nazeer, Justice Rohinton Nariman, Justice U.U. Lalit and Justice Kurien Joseph. The majority judgment which declared the practice unconstitutional was given by Justices Rohinton Nariman, U.U. Lalit and Kurien Joseph, and declared that the practice was un-islamic and disagreed with the claim that it was an integral part of Muslim personal law. The minority judgement by CJI Kehar and Justice Nazeer on the other hand declared that the practice was protected under the Constitution and beyond the scope of judicial scrutiny.
While the judgement had been celebrated as progressive, there are several members of civil society who were part of the cause but are sceptical of the government’s agenda behind passing such a law.
Bebaak Collective, petitioners in the case, championing the cause of declaring triple talaq unconstitutional, have released a statement expressing their reservations on the government’s decision to criminalise the practice. Senior Advocate Indira Jaising represented Bebaak Collective in the case.
Implementing the triple talaq judgement: A vicious ploy of the BJP government to criminalise Muslim men
The BJP government has announced its plan to legislate on the practice of instant triple talaq and to make it a criminal offence. We dreaded this moment, and we shall speak up. Although we knew that the incarceration of Muslim men was the implicit agenda of the BJP government, we did not anticipate this move so quickly.
While women’s groups are demanding for the rights of Muslim women and looking for civil redress mechanisms, the BJP government is hell-bent on appropriating the rightful claims of Muslim women for its exclusionary and polarising agenda.
On 22nd August, the Hon’ble Supreme Court of India struck down the practice of talaq-e-biddat. According to this judgment it is unlawful for a Muslim man to pronounce talaq three times in one sitting, and if he does so it will not be recognised by the law. In effect, the marriage continues to be legally recognised. This judgement not only provides relief to individual women, it also opens up the possibilities to challenge all the Personal laws, which are discriminatory against women. Hence, this judgment is a milestone in the direction of ensuring gender equality in marital and familial relations.
In the particular case of Muslim women, who are still at the receiving end of instantaneous triple talaq, there is much that needs to be done. Not the least to spread awareness about the judgement itself among Muslim men and women.
Bebaak Collective, as one of the interveners in the Supreme Court, along with several women’s groups working at the grassroots level with the Muslim community, approached the Ministry of Minority Affairs in New Delhi, as well the State Women’s Commission in Mumbai, to proactively allocate budgets and take initiatives to ensure the implementation of the judgement. We urged them to provide pecuniary relief and socio-legal aid to women who are affected by the violation of this judgment.
In our meeting with Mr. Mukhtar Abbas Naqvi, the Minister of Minority Affairs and other officials, we reiterated in no uncertain terms that we — as women’s groups working to ensure the rights of women and marginalised groups — do not believe in retributive justice. We do not seek criminal proceedings against Muslim men who continue to exercise the prerogative of unilateral decision-making so as to end the marriage. It is important to think of civil redress mechanisms and restorative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage.
Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature. There are several recommendations in this direction. First, the Dissolution of Muslim Marriages Act, 1939 should be made gender neutral. Even a Muslim man should go through the court, if he wants to divorce his wife. This is important because the above mentioned judgement has only struck down talaq-e-bidat (instant triple talaq) and not talaq-e-ahsan (talaq over a period of three months), while the latter is also unilateral with some possibility of reconciliation. Second, the provisions of the Domestic Violence Act, 2005 should be applied, even after the Muslim woman has been given talaq instantly, if the Muslim woman is facing any form of domestic violence or ousted from her matrimonial home, and approaches the police station.
One of the shortcomings of the judgement itself was that the 5 judges of the Constitutional bench did not provide any guidelines for the safeguard of women, if the practice continued. A minority of 2 judges passed the buck to the Parliament to formulate a law with regard to the practice of triple talaq. This is now being used by the BJP government to criminalise Muslim men. We resist this ploy to incarcerate Muslim men, while the government projects itself as the messiah of Muslim women.
The question to ask is what has the government, both at the state and national levels, done to ensure the implementation of the Supreme Court’s judgment in the past three months. What proactive measures have been taken to discourage the practice of instant talaq and what safeguards are created for Muslim women who still struggle to receive maintenance and exercise their right to stay in their matrimonial house. We resist this government’s vicious ploy to appropriate Muslim women’s struggles for their electoral gains and exclusionary politics.