The new and controversial law is anything but divorced from the ground realities of the nation

The new and controversial law is anything but divorced from the ground realities of the nation
16 Aug 2019

Cover Story


The new and controversial law is anything but divorced from the ground realities of the nation


 Not long after the Bill criminalising triple talaq was passed in the Parliament late last month and received President Ram Nath Kovind’s nod at the start of this month, a handful of cases under the new triple talaq law were reported from almost all sides of the country.               

The Odisha police lodged its maiden case of instant divorce on August 10 in the Pattamundai town of Kendrapara district. But over a week earlier, on August 2, the Mumbai Police had already lodged a case in Maharashtra that was filed by a woman against her Mumbai-based husband. Up in New Delhi, on the same day, a 29-year-old woman filed a police complaint alleging that her husband had given her "talaq" thrice verbally as well as on Whatsapp. Not far from there, another case was registered in Mathura, Uttar Pradesh, where a man allegedly pronounced triple talaq on his wife in the middle of a road.

Three days later, on August 11, news about Muslim women in Varanasi sending 'rakhis' to Prime Minister Narendra Modi in appreciation of his government’s efforts to criminalise instant divorce was flashed across nation.

Huma Bano of Rampura said: "It was only because of Modi that triple talaq is criminalized. He is like an elder brother of all the Muslim women in the country. We have made rakhis for our brother."

But the triple talaq issue and its resolution has been anything but straightforward.

The Indian Union Muslim League (IUML) dismissed the ‘rakhi’ gesture from Varanasi as hogwash.

"The Muslim subsidiary of the RSS is carrying out such activities. They have hired Muslims to do this. This is done under the pressure of people in power. It's the government's propaganda," State President of the IUML Matin Khan said.

The triple talaq had been contentious issue right from the time its abolition was discussed and debated a few years earlier.

On July 25 this year, when the Muslim Women (Protection of Rights on Marriage) Bill, 2019, was tabled in the Lok Sabha, many parties staged a walkout arguing that it would foment communal tensions. This included members of the Congress, the Trinamool Congress and even the Janata Dal (United), a BJP ally.

"We do not support this Bill as our party believes if passed it will create distrust among a particular community," said Rajiv Ranjan Singh (JD-U) said at the debate. "Nobody wants to see a husband and wife getting separated. But if such a situation occurs, a couple takes the decision after due consent and trust. You can't take decisions on their behalf by imposing such a law,” Singh had contended.

S. Jothimani of Congress party accused the BJP government of playing a "divide and rule policy" among women.

"Irrespective of religion, women are subjugated to injustices and have been going through this for years. Rape and marital rape are also important issues that Parliament should take up with the same interest," she said, rejecting the Bill as an infringement of the rights of Muslims and Muslim women.

In response, Law Minister Ravi Shankar Prasad countered that the legislation was not about politics or religion, but about "women's dignity".

Three years of imprisonment for a husband pronouncing triple talaq on his wife was needed for gender justice and equality, a core philosophy of the Constitution, Prasad asserted.

Pointing out the Supreme Court’s observations that 20 Islamic countries including Pakistan, Afghanistan, Malaysia, Indonesia, Jordan, Egypt and Tunisia had outlawed triple talaq, Prasad asked: "If they could do it, why cannot it be done in India which is a secular country?"

Eventually, the Bill was passed in the lower house with 303 votes in favour and 82 against.

Five days later, the Bill was hotly debated in the Rajya Sabha. It was bound to be, considering the BJP does not enjoy majority support in the upper house the way it does in the Lok Sabha.

Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad called the Bill politically motivated, saying there was nothing in it to protect Muslim women, for their subsistence allowance and their children.

Javed Ali Khan of the Samajwadi Party also joined in saying there were women in the country who had been abandoned by their husbands. "I want to know if the government is planning to bring any law to ensure the abandoned wives receive allowance from these husbands," Khan asked.

Once again Prasad defended his government’s move by insisting that the proposed law had nothing to do with religion but was only meant to do away with a social evil. Quoting a book by an Islamic scholar, the minister said if Prophet Mohammed disapproved triple talaq centuries back, "why are we in 2019 debating whether it is right or wrong?"

Countering the Opposition’s criticism about making triple talaq a cognizable offence, the Law Minister sought to remind all that no questions were raised about the penal provisions when the Hindu Marriage Act of 1955, Dowry Act of 1961 and section 498A of the Indian Penal Code were brought.

Recalling the time when the Hindu Marriage Act was brought, in which the minimum age for the bridegroom and bride was set at 21 and 18, respectively, with a two-year jail term put in place for those violating the law, Prasad said no one at the time had decried those changes as interference in the marital institution of the Hindus.

Yet the Opposition set in motion a proposal to send the bill to a Select Committee. But it was defeated by 84-100 votes. And finally, the Bill was passed in the Rajya Sabha by 99-84 votes, and was headed straight for the President’s signature of approval.

Even after triple talaq became a law, the debate over it has been far from been over. Public interest litigations (PILs) against the law’s implementation have been filed both in the Supreme Court as well as Delhi High Court. The one from Samastha Kerala Jamiathul Ulema, a religious organisation of Sunni Muslim scholars and clerics in Kerala, has requested the apex court to strike down the new act as it violate Articles 14, 15 and 21 of the Constitution.

Some politicians have also refused to accept the triple talaq legislation saying it would "deprive Muslim women of their rights". Siddiqullah Chowdhury, Mass Education Minister in the Mamata Banerjee-led Trinamool Congress government of West Bengal and the President of the Jamiat Ulema-e-Hind's West Bengal unit, stated that the law was an "attack on Islam".

"It is impossible to accept this at any cost. In fact, we dislike the move. This will not secure the safety and rights of women," Chowdhury thundered at a press conference in Kolkata.

There have been others like him in other parts of the country.

This debate is unlikely to conclude anytime soon. However, a look at the cases that were registered early this month do seem to answer the issues raised in the debate.

In the case registered with the Odisha police, the complainant accused her husband of divorcing her on phone from Hyderabad after one year of marriage.

Claiming that the couple were in love for the past seven years, the woman said: "We had a registry marriage in February 2018 and he took me to Hyderabad. We stayed there for six months. When I got pregnant, he brought me to his home in Pattamundai.”

In her complaint she has alleged mental and physical torture by in-laws for dowry during her stay in Hyderabad before she was shifted to her father's house and delivered a boy three months back.

"After delivery, I called up my husband and asked him to take me to Hyderabad. But he refused to recognise me. When I insisted, he pronounced triple talaq over the phone,' the woman alleged.

In the case registered at Bara Hindu Rao police station in the North Delhi, a relative of complainant Raima Yahya has revealed that the financial situation of Atir Shamim – Raima’s husband who is a resident of Azad Market – was not good and he was repeatedly forcing her to get money from her parents.

"When she refused, he pronounced triple talaq on her on June 23 and threw her and their son out of the house”, later leaving a message regarding triple talaq to her brother over WhatsApp.

In the Mathura case, the man allegedly divorced his wife in the middle of a road for refusing to arrange a dowry amount of Rs 1 lakh. There had been a history of dispute between the families of the couple over the dowry amount. And the dispute was already being heard in the women police station in the city.

If there is any truth to the details of these cases, the necessity and desirability of the triple talaq law in India seems to be rather unquestionable.

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