The BJP-led government’s decision Wednesday to promulgate an ordinance to ban the practice of instant triple talaq drew sharp criticism from the Opposition Congress and sections of the Muslim community, but for different reasons.
While the Congress said there was lack of clarity on the subsistence allowance clause in the proposed law and criticised the provision that puts the onus of proving pronouncement of instant triple talaq on the woman, Muslim leaders like Asaduddin Owaisi said it was wrong to make instant triple talaq a penal offence.
Incidentally, the Congress made a perfunctory mention of the penal provision in the ordinance. When the Bill was listed for consideration in Rajya Sabha earlier this year, the party had expressed reservations over the provision for a three-year jail term for a Muslim man giving instant triple talaq to his wife. It has diluted its position since then after the government made it clear that it will add a provision of bail for the accused before trial.
On Wednesday, the Congress argued that the government had not defined subsistence allowance or quantified the amount.
“What is the definition of Subsistence Allowance for Muslim women and children? What is the method of calculating it and how would it be quantified? Will Subsistence Allowance be in addition to maintenance granted to a Muslim woman under Section 3 and Section 4 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 or will such ‘maintenance’ be deducted from subsistence allowance or will a Muslim woman be entitled to only one of the two?” Congress communication department head Randeep Surjewala said.
Besides, the Congress asked why should the onus of proving instant triple talaq be on women.
“Post Supreme Court judgement in Shayara Bano’s case, pronouncement of instant triple talaq is void and illegal. The Modi government has now proposed that the onus of proving the pronouncement of instant triple talaq would be on the victim. For a hapless woman undergoing the rigours of social inequity, it will remain the subject of a long drawn-out litigation because the accused husband will always deny the pronouncement of instant triple talaq,” he said, adding this is one more way to “harass Muslim women and children”.
“Why can’t this law envisage a ‘presumption in favour of the woman’ putting the onus of proof on the husband to establish that instant triple talaq was not pronounced by him? But the Modi government won’t do it, for it wants to keep the triple talaq issue alive as a vote-catching exercise,” he said.
Referring to the penal provision, the Congress said women’s groups have raised a question on who will pay the maintenance or subsistence allowance once the husband is in jail and asked “why should the woman and children not have a right to proceed against the estate, movable and immovable property, of the husband?”
Owaisi, on the other hand, said the ordinance is “anti-Muslim women” and called it a violation of the right to equality enshrined in the Constitution.
“If a Muslim is going to be charged under this ordinance and if the courts find him guilty, he will be sentenced for three years… whereas a non-Muslim man, if he is charged under a different Act, he will be sentenced for one year. Isn’t this a grave violation of the Constitution?”
Owaisi, chief of the AIMIM and MP from Hyderabad, said the burden of proof also lies on a “poor Muslim woman” and asked “who will come and give evidence in favour of her”. On subsistence allowance, he said “in which world is this government living… he will be in prison and he will give allowance?”
“In Islam, marriage is a civil contract and putting a penal provision… making it a criminal offence is completely wrong. It is disproportionate,” Owaisi said. “If someone kills someone by rash driving, the sentence is two years… This is going to cause more injustice,” he said.
He said he hopes the All India Muslim Personal Law Board challenges the ordinance in a court of law. The Supreme Court, he said, has said that pronouncement of triple talaq will not mean divorce. “What then are you punishing the man for? Where will he pay maintenance from if he is in jail?” Owaisi said.