It is a historic moment for this country. The arbitrary, unconstitutional and unreasonable practice, generally called triple talaq, has become a practice of past and now, an offence. India has moved on from an era when the name of movie was changed to Nikah because there was a danger that if a husband asked his wife to watch a movie named “Talaq Talaq Talaq”, she may suffer a heart attack as uttering talaq, talaq, talaq was considered as divorce.
The present legislation comes in the backdrop of an evolving society, which has influenced even Islamic states to make corrective changes by legislation to Muslim personal law. I congratulate our Muslim sisters for getting their due right of equality, an issue of paramount importance for the present government. Eradicating the unfair practice of triple talaq has ended their insecurity and uncertain future.
The fight against instant talaq was the fight of every Muslim woman, though it was started by an ordinary Muslim woman. Talaq-e-biddat left women insecure since it was generally accepted and practiced by the community, when a man wanted to correct his mistake. There was no reason for a woman in a civilised society to go through this trauma. This fight, being the fight of ordinary women against inequality and injustice, deserved the support of the government that considers equality, as outlined in the Constitution, its guiding principle.
Bringing the law that declares triple talaq an offence is a victory for the civil society; it should not be seen as a political victory. It is surprising how anyone can oppose such a progressive law, which was essential for the women of one particular community, who were facing discrimination due to this arbitrary practice. It is disheartening to see how those who have been talking about the Beijing declaration were against the passing of this much-needed law to ensure women’s dignity.
Instant talaq concerns gender justice. The law banning it is about ensuring human rights and providing liberty to women to live with dignity. Many criminal offences have civil consequences, for example, rash driving. Crime involves punishment by the government while a civil wrong is a wrong against an individual that calls for compensation to the wronged person.
Generally, civil action can provide only compensation. What compensation would be appropriate for a woman like Shah Bano, who was divorced by her husband at 70? There was need for a law, which may act as a deterrent and prevent people from resorting to instant talaq. In short, criminalising instant talaq was the only option.
Triple talaq was not only a wrong against an individual, but it was an attack on the society in general. The government deserves appreciation for bringing a law that terms it as offence; declaring it a punishable offence makes it an effective law. The deterrence theory of criminology is shaping the criminal justice system in various countries.
We also cannot ignore the constitutional morality. The Supreme Court has held that the practice of triple talaq is not protected under religious freedom and the same is against the dignity of women. Gender justice is an important constitutional goal and without accomplishing the same, half of the country’s citizens would not be able to enjoy their rights in reality. When Article 51-A (e) of the Constitution talks about renouncing practices derogatory to the dignity of women, how can a government not bring about an effective law to end the practice? Articles 14, 15 and 21, which are a part of the basic structure of the Constitution, make it clear that there was a need to bring a law, particularly since the Court had declared that the ambit of religious freedom does not cover triple talaq. Democratic values will survive only when people are guided by the constitutional parameters.
It is also important to note that it is not the first law to declare an unreasonable and arbitrary act as an offence. There are so many examples. For example, from the ancient time, polygamy was permitted amongst Hindus. But in 1860, the Indian Penal Code made “polygamy” a criminal offence. Next was The Hindu Marriage Act, 1955, which provides the conditions for a valid Hindu marriage. One of the conditions introduced was that neither of the parties to the matrimonial alliance should have a living spouse at the time of marriage. Clearly, the practice of polygamy among Hindus was eradicated by legislation and the same was made a criminal offence through law. So the law criminalising triple talaq is not the first instance of personal law being changed to ensure gender justice in India.
So many reformative laws have been introduced by the state. One such law was the Hindu Widows’ Remarriage Act. The issue is not about religion or faith but the concern for gender justice and gender equality. In order to fully emancipate Muslim women from an unjust and discriminatory family law, their unique position and experience at the intersection of gender discrimination and religious discrimination must be taken into account.
The present government deserves appreciation for ensuring equality of women in letter and spirit. What is held to be bad in the Holy Quran cannot be good in sharia. Or, what is bad in theology is bad in law as well.