In September 2015, I tweeted the following: “Dear All India Muslim Personal Law Board: The instant triple talaq is a horrible interpretation that sets our community back. I reject it.” I wanted the AIMPLB to raise awareness about the undesirability of instant triple talaq. Instead, they fought to have the Supreme Court uphold it. A few months ago, the Court held the instant triple talaq unconstitutional. This was, certainly, a step forward for women’s empowerment. But even then I didn’t imagine that the apex court’s progressive judgment would become a pretext for the Narendra Modi-led government to put forward a Bill that would not only do little to advance the interests of Muslim women, but could end up harming the interests of both Muslim women and men.
Last week, the government introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2017, in the Lok Sabha. There was no real discussion and the government’s brute majority in the Lower House ensured that the Bill took only a few hours for it to be passed. All proposed amendments were rejected. Shouldn’t a Bill of this nature have required a discussion? After all, aren’t we in favour of empowering Muslim women? Should we not be happy that Muslim women won’t now have the spectre of a regressive divorce procedure hanging over their heads? So why am I now writing this piece opposing the Bill, after first coming out strongly against instant triple talaq? Let me explain.
In reading its contents, it becomes clear that the Bill was prepared without proper due diligence or regard for its consequences. The justification supplied in the “statement of objects and reasons”, arguing that the Supreme Court judgment “has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims,” is frankly, ludicrous. The Bill goes on to add that, therefore, “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.” But the government has simply not been able to provide any evidence in support of its assertion that the Supreme Court’s order has had no impact. In a country where we don’t even have basic jobs data, are we supposed to believe that the government has a divorce database so efficient that the triple talaq impact can be analysed within a few months of the judgment?
The Bill proposes that in light of the judgment, the pronouncement of talaq-e-biddat (instant triple talaq) will be “void and illegal”, meaning it would have no legal effect. So whether a Muslim man utters the word ‘talaq’ three times or a million times, it will have no legal effect and the marriage remains intact. Certainly, the woman in question will be deeply disturbed. But she retains all her legal rights and remedies.
The Bill further proposes to make the utterance of talaq, talaq, talaq a criminal offence, punishable by up to three years in prison and a fine that remains undetermined. This is important. For saying something that has no legal effect, the government proposes to send the offending man to jail. Worse, the offense will be cognizable and non-bailable. That means anyone can accuse a Muslim man of violating this law (not just the wife) and the police has to take cognizance, make an arrest and hold the man without bail. Any man with half a brain would realise that the proposed law would land him in jail for saying something that has no practical impact as far as his marriage is concerned.
Wouldn’t it be easier to just separate from his wife if he didn’t want to go through the normal divorce process? How are the woman’s interests preserved in such a scenario?
In an environment in which Muslim men are being killed on the mere allegation of possessing beef (Mohammed Akhlaq), smuggling cattle (Pehlu), or loving a Hindu woman (Afrazul), how difficult is it to imagine that this proposed law could be subverted to incarcerate Muslim men on a mass scale? Lives of countless mothers, wives, sisters, and daughters could become collateral damage.
The share of Muslim men in jail is already disproportionate to their share in the general Indian population. In some large states such as Maharashtra, West Bengal, Gujarat, and Rajasthan, this share is glaringly disproportionate. The proposed bill could make these ratios worse and have adverse consequences for Muslim society.
This situation is becoming increasingly similar to the situation of African American men in the US — they constitute 13 per cent of the US population, but 34 per cemt of all those incarcerated are black men. In American society, the African American male is seen as someone to be feared. He is the “other”. This prejudice has had serious adverse consequences for African American families and it is a key reason for ongoing protests against a culture of racism that continues to roil American society.
By its own admission, the government did not consult anyone, not even women’s organisations, in the process of drafting the bill. No Muslim women MP spoke during the “debate” in the Lok Sabha.
This is not a good way to draft laws that can have an impact on millions of families. This Bill needs a comprehensive review and a careful assessment its consequences for Muslim men and women. If we put our heads together in good faith, I am certain we can find a way to stop the practice of instant triple talaq, protect women’s rights and mitigate risks of abuse from this piece of legislation.