M. Raghuram examines the impact of the Triple Talaq bill on women’s rights in this well researched article.
At a public function held in Hyderabad soon after the Union Government sponsored bill on triple talaq received the assent of the Lok Sabha, the supremo of the AIMIM Assaduddin Owaisi said “The anti-triple talaq bill brought in by the central government was a grave injustice meted out to Muslim men”, political analysts and women’s organisations had retorted, “what about women’s rights?” Is it good to throw women on to the street by just uttering Talaq three times? Why should Muslim men be absolved of the duties that matrimony entails?
The Bill itself has created a gender divide in the Muslim community though the divide is not exactly down the middle, with progressive Muslims in support of it, though apprehensive of its penal clauses.
The Supreme Court verdict that changed it all
In August 2017, a constitutional bench of five judges of different faiths, pronounced Triple talaq, the controversial Muslim divorce law that allows men to leave their wives immediately by uttering "talaq" (divorce) thrice, illegal, retrograde and unworthy. Calling the practice "bad in law", a constitution bench of five judges said that triple talaq "is not integral to religious practice and violates constitutional morality" and banned it. Triple talaq is legal for Muslims according to the constitution, but several Muslim women who have been divorced, including by Skype and on WhatsApp, had challenged the 1400-year-old practice. Five judges of different faiths - Chief Justice JS Khehar, Justice Kurian Joseph, Justice Rohinton Fali Nariman, Justice Uday Umesh Lalit and Justice S. Abdul Nazeer - heard the case over five days from May 12 to May 18.
"Triple talaq may be a permissible practice but it is retrograde and unworthy. Since triple talaq is instant it is irrevocable and the marital tie gets broken, it violates the right to equality," said the court. Two judges - including the Chief Justice - however differed and said while triple talaq "may be sinful", the court can't interfere in personal laws that are considered a fundamental right by the constitution.
During the arguments, Muslim organisations like the All India Muslim Personal Law Board (AIMLPB) opposed the court's adjudication in Islamic matters, maintaining that these practices stemmed from the Holy Quran and were not justiciable. On March 27, the AIMPLB told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of the judiciary. The government backed the petitioners, declaring triple talaq unconstitutional, and derogatory and discriminatory for women. But it had argued that the court should first pronounce its decision on the constitutional validity of triple talaq, only then it would bring a law.
The verdict came two years after Shayara Bano from Uttarakhand approached the top court. Petitions of four other women were tagged with Ms Bano's petition. The Centre filed an affidavit against the practise based on her petition. The Bharatiya Muslim Mahila Andolan (BMMA) was the sixth petitioner in the case.
Here's a look at the petitioners:
36-year-old Shayara Bano's husband gave her triple talaq in October 2015 and a year later, she approached the Supreme Court. Ms Bano's husband Rizwan Ahmed, a property dealer in Allahabad, also took away her two kids. She asked the court to declare talaq-e-bidat (in which Muslim men utter 'talaq' thrice instantly -- sometimes via a written talaqnama, or even by phone or text message -- while not adhering to the three-month iddat period, which is meant for reconciliation and arbitration), polygamy and nikah halala (which involves the woman marrying someone else, consummating the marriage and then getting a divorce - after which she is able to remarry her first husband) illegal and unconstitutional. Ms Bano's husband opposed her plea saying they were governed by the Muslim Personal Law and all three discriminatory practices are sanctioned by the law. She also alleged that her in-laws forced her to have six abortions and she had suffered much physical and mental stress.
Ishrat Jahan from Howrah, West Bengal, was divorced by her husband on the phone. In April 2015, Murtaza, her husband of 15 years, called from Dubai, said "talaq, talaq, talaq" and disconnected. He had allegedly married another woman and took away their four children. Ms Jahan now wants her children back, and maintenance from Murtaza. "I don't accept the talaq by phone. I want justice. I want my three daughters and one son back from my husband who snatched them away and I want maintenance for their upbringing. That's why I have gone to court. I will fight to the finish," she said.
Gulshan Parveen of Rampur in Uttar Pradesh received a talaqnama or divorce notice on a Rs. 10 stamp paper when she was visiting her parents in 2015. "My husband felt like it one fine day and suddenly both my two-year-old son Ridan and I were homeless," said Ms Parween. She refused to accept the notice, after which her husband approached a family court. Ms Parveen also alleges she was subjected to domestic violence over dowry. "My husband felt like it one fine day and suddenly both my two-year-old son Ridan and I were homeless," said Ms Parween. She refused to accept it, following which her husband approached Rampur family court asking for dissolution of marriage based on the talaqnama.
Aafreen Rehman married in 2014 after meeting her husband through a matrimonial portal. "After two-three months my in-laws started mentally harassing me, demanding dowry," ANI news agency quoted her as saying. "Later they even started beating me and in September 2015 they asked me to leave their house." She went back to her parents' home and received a letter via speed post announcing a divorce, she said. "This is completely wrong, unfair and unacceptable. I've filed a petition in Supreme Court seeking the court's intervention in the matter," she had said last year.
Atiya Sabri, married in 2012, was also divorced on a piece of paper. She approached the Supreme Court in January challenging her divorce. She has two daughters aged four and three. "Talaq given to me cannot be justified. I need justice as I have to raise my daughters," said Ms Sabri.
Bharatiya Muslim Mahila Andolan
A petition, titled 'Muslim Women's Quest for Equality', was filed by the Bharatiya Muslim Mahila Andolan (BMMA). The BMMA argued that Allah says men and women are equal. Zakia Soman of the BMMA said, "We have reproduced verses from the Quran about talaq, negotiations and how it should happen over a minimum period of 90 days. The second argument is about gender justice. There is no ambiguity in the Constitution of India about all citizens having equal rights."
The Triple Talaq Bill
After the majority judgement in which the apex court set aside instant talaq as a "manifestly arbitrary" practice the Union Government introduced and passed in the Lok Sabha, where it has a majority, a bill that sought to end the practice. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 however got stuck in the Rajya Sabha, where some opposition parties want it referred to a joint select committee especially in regard to its penal clauses. The Government hopes to have it clear parliament in the Budget session which is now in recess.
Some salient features
It makes the pronouncement of talaq-e-biddat "void and illegal." According to clause 3 of the Bill, "Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal."
There are however punitive measures attached to this illegality which are now at the heart of the political controversy.
A man who pronounces talaq on his wife will be punished with a jail term and a fine. This Bill also makes the pronouncement of talaq-e-biddat a non-bailable offence. Clause 4 of the Bill states, "Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine." Clause 7 says, "an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the Code." (The Code of Criminal Procedure, 1973)
So how does this uphold women's rights?
The woman upon whom talaq is pronounced will have to receive an allowance from her husband, and she retains custody of her children. Clauses 5 and 6 of the Bill say, "a married Muslim woman upon whom talaq is pronounced, shall be entitled to receive from her husband such amount of subsistence allowance for her and dependent children," and "shall be entitled to custody of her minor children in the event of pronouncement of talaq by her husband."
Law Minister Ravi Shankar Prasad, in the statement of objects and reasons attached to the Bill says that this legislation will, "help in ensuring the larger Constitutional goals of gender justice and gender equality of married Muslim women and help sub-serve their fundamental rights of non-discrimination and empowerment."
What do the stakeholders say?
Zubieda (name changed) is a resident of Azizuddin Road of old port area. 33 years old with three kids, she now leads the life of a recluse. It was the day she heard her husband Althaf (name changed) shout those dreadful words thrice -’Talaq’ her fate and her future changed irrevocably for the worse. In the next hour he and his parents threw her and her three kids aged 6 to 11, out and they were on the streets with nowhere to go. Though this happened in 2017 August her relatives feel that it was too quick and too brutal on Althaf’s part. All this was a ploy to marry another woman who would bring a fat dowry for Althaf. Such cases are many in Mangaluru, Kasargod, Udupi and Chikkamgaluru, but the families do not report it say women’s activists.
Scholars of the Iqra Arabic School in Mangaluru however say that the triple talaq ban may not be amenable with the men folk as it becomes a hurdle in their pursuit of polygamy for various social reasons. But it may not be the case with the scholarly people who look more at bringing reforms in the Islamic social order. There are many students in the school with fathers with only one wife.
Do men of the Muslim community prefer the triple talaq methodology to divorce or do they not? Mohammad Ishaq a successful businessman in Mangaluru says, “There is no reason why men do or do not like polygamy or a ban on triple talaq. There can be no other reason for following polygamy but for more procreation and may be more so for social reasons. But with the new economic order coming to the fore all around the world many Muslim men are looking towards greater family stability and better prospects economically and consequently social stability for their family. I am sure this new understanding and awakening may still be on the surface level but many of my friends have said smaller the family better the chances that they will have better lives”.
Muslim women students of sociology at Mangaluru University told this correspondent on condition of anonymity that religious scholars take their learnings too far. They influence the men folk mostly from the uneducated classes on practicing polygamy and talaq. No woman likes to share her husband with another woman or live in poverty stricken family due to many mouths to feed. The ban on Triple talaq comes as a welcome measure which makes divorce difficult and remarriages even more difficult for men, which condition is good for women.
Law evolves from Practices, and practices evolve from necessity. With changing times, come the need for new practices and thence the need for a new law. But conservatives, hark back to the old, despite this. But hopefully they will embrace it with time.