The great Indian rope trick is back. In its new avatar, it is called the Muslim Women (Protection of Rights on Marriage) Bill, 2017. The rope trick is said to be a display of spectacular achievement. This bill too has been projected as the ultimate emancipatory stroke that oppressed Muslim women desperately need. Like with all rope tricks, what appears as a masterstroke is at best illusory. The bill creates a vision of empowerment but fails to even secure women’s fundamental rights to survival and security.
In particular, what is the rationale and advantage of criminalising instant triple talaq? Especially when we know from decades of attempts to secure the legal rights of women that penal action does not resolve issues but may only create a few more.
One of the main arguments offered by the proponents of criminalisation (Point 4 of the Statement of Objects and Reasons in the bill) is that with triple talaq, the Muslim wife “does not have any say in severing the marital relationship.” It turns out that the bill does more or less the same. It also takes away her power over the modalities of dissolution of her marriage and instead hands it over to another patriarch—the State.
Neither does the bill empower her nor leave her in a better position. It is because, one, it is highly unlikely that a resentful husband would even consider the prospect of reconciliation with his wife who had him incarcerated. Two, having made it a cognisable and non-bailable offence, the husband can be arrested without a warrant.
And there are other possible implications—the fear of the husband going to jail may inhibit women from even reporting instant triple talaq, or the husband may simply abandon her after pronouncing other forms of unilateral talaq (talaq–ahsan or talaq-hasan).
What makes it worse is that it is not only the aggrieved wife who can file a complaint against her husband. Any third person can do so by claiming that the husband uttered triple talaq in one go. Clearly, there is ample scope for misuse of the bill.
Shockingly, not a word has been said on what the State will do to protect the rights of women, particularly their financial and social security. It is essential to think of civil redressal mechanisms and reparative justice to ensure that women can negotiate for their rights both within and outside of marriage.
For example, divorce by triple talaq can easily be placed within the purview of the Protection of Women from Domestic Violence Act, 2005. The Act provides civil remedies to the aggrieved wife while leaving scope for reconciliation. In fact, this would provide wider protection to Muslim women’s rights—the right to reside in a shared household, maintenance for herself and dependent children, protection orders, custody of minor children, etc.
For those who still think that a criminal aspect has the (arguable) effect of deterrence, there is Section 498A of the IPC to turn to. Unfortunately, the BJP government is trying to dilute it under the pretext of saving the family, even though the family in question may be a place of abuse and violence. Instead of strengthening this Section and monitoring it better, it is being decriminalised. What a paradox—for Section 498, the government argues for decriminalisation, but it proposes criminalisation for marriages that are based on a civil contract.
We also need to take a step back for a broader look at the polarised scenario over the criminalisation of triple talaq. The amnesiac Congress has no memory of its historical blunder of passing the Muslim Women (Protection of Rights upon Divorce) Act, 1986. Purportedly for the “protection” of Muslim women, the party took no responsibility for the discrimination it perpetrated against the women for whom it was made.
This law reverted the gains made in Shah Bano’s judgement of the Supreme Court and was in stark contrast to Section 125 of the CrPC. Moreover, the Congress party continues to rely upon and involve not the women’s groups or all representatives of Muslim women but religious bodies in its deliberations on the 2017 Bill. Is it not obvious enough by now that the power given by the Congress to the AIMPLB has never resulted in any progressive ideas or steps vis-à-vis women’s rights?
The BJP, the patronising messiah for Muslim women, has a far more extreme position. They are not only upturning the elementary reforms achieved through judicial intervention but thrusting unnecessary and draconian provisions on women seeking redressal. They too have eluded democratic processes, and not consulted women’s groups and the movements who have been the catalysts of the Indian Muslim women’s mobilisation. These groups worked among Muslim women for over three decades so they could approach the Supreme Court to demand equal rights.
Besides taking credit for the painstaking efforts of women’s movements, the BJP is diverting attention from issues which affect the Muslim community. The government has neither made any policy-level intervention for the security of the Muslim community nor any schemes/policies to improve the material conditions of Muslim women and girls. How about improving the socio-economic conditions of Muslims by implementing the recommendations made by the 2005 Rajinder Sachar and the Kundu Committees?
Sadly, those who take one or the other position on the Bill are seen with suspicion. Any dissent or disagreement with the government’s position means you must be a Congress supporter. Unless you cheered the Bill, which of course implies you have a soft spot for the BJP. Such simplistic and naïve perceptions have only divided the splintered voices.
The triple talaq debate is the latest in the trail of instances—such as the ‘love jihad’—where the patriarchal family controls ‘their’ women and decides for them. So great is the fear of women’s choices around marriage and sexuality that in the Hadiya case the help of the National Investigation Agency was sought. The frenzy of the triple talaq debate in the Parliament and television studios seems to surpass that in the political sphere, and appears to be treating the breakdown of marriage as a national security threat!
Just as the magician behind the rope trick does not talk about its details, the government refuses to discuss the Bill in a Select Committee. The Bill is hasty showmanship with little regard for gender justice. #KhabarLive