Policy Matters, Jan '18
Shampa Sengupta explains why criminalizing instant triple talaq will not protect Muslim women’s rights
On December 28, 2017, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 was passed in the Lok Sabha – though it could not be discussed and passed later in the Upper House of the Parliament where the Opposition parties were keen to have the Bill referred to a Select Committee for significant changes.
The Bill was drafted in the aftermath of the Honourable Supreme Court of India’s decision in the case of Shayara Bano Vs. Union of India and Others (in August 2017), wherein the court declared the practice of instant triple talaq (talaq-e-biddat) as unconstitutional. The Statement of Objects and Reasons of the Bill says that the Supreme Court judgement was not working as a deterrent in bringing down the instances of instant triple talaq and the Minister of Law and Justice, Ravi Shankar Prasad, stated that several cases of instant triple talaq were reported even after the apex court’s verdict.
However, several women’s groups, including Bebak Collective, one of the interveners in the Supreme Court who supported the petition of Shayara Bano challenging the constitutionality of instant triple talaq, nikah-halala and polygamy came out with a media statement claiming that the Bill gave a “myopic view of the issue”.
In a media conference they said that the Bill was a vicious ploy by the Bharatiya Janata Party (BJP) government to criminalize Muslim men. Senior advocate Indira Jaising, who represented Bebak Collective in court, joined the media conference and expressed her dismay about the Bill in her tweets.
One needs to understand why women’s groups are angry and upset about the Bill, when in popular discourse, particularly among those who have not gone through the Bill, many consider it as a positive step taken by the present regime. Also, it is important to note that women’s groups welcomed the Supreme Court judgement on instant triple talaq – so opposition to the Bill may look like a contradiction. But when one looks at the nuances of the Bill, one can understand why women’s groups are apprehensive about its impact.
To quote from the media release issued by Bebak Collective (emphases in bold the author’s): “There is no rationale to criminalise the practice of talaq-e-biddat. Using penal actions leading to imprisonment to discourage the practice of triple talaq will not help in getting justice for women. When a woman reports a complaint about triple talaq, she wants to continue staying in the matrimonial home and draw financial support from her marital home. Imprisoning the husband will deprive her of both, making her and her children even more vulnerable.
“Since marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be civil [in] nature. We do not believe in retributive justice, which emphasises punitive measures instead of ensuring the rights of women. It is essential to think of civil redressal mechanisms and reparative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of marriage.
“The Bill is limited to triple talaq and does not address related issues of polygamy, the practice of halala and other issues of discrimination faced by women in marriage and family. We believe that piecemeal legislations will not address larger issues of subordination of women within patriarchal structures. The penal action to discourage the practice of instant triple talaq is a myopic view as it leaves many other issues of economic and social security of women unaddressed. In addition, in our present conjuncture, the move to imprison Muslim men will add to the prevailing insecurity and alienation of the Muslim community. Family and community members might create undue pressures on the woman not to report against her husband.
“Criminalisation of instant triple talaq will further stifle the voices of Muslim women instead of offering them avenues for justice. Our effort – as women’s groups and the government – should be to strengthen the negotiating capacities of women by strengthening their economic and social rights. In any case, if there is a need for criminal intervention, as in cases of domestic violence, or when triple talaq is construed as violence, in such cases, the aggrieved woman can use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. These two legal options for women encompass both civil and criminal provisions.”
Here again, we need to remember the reasons behind passage of the Domestic Violence Act in 2005. Domestic violence is a common occurrence, but many activists have seen that women usually don’t want to go to the police and complain against the husband. As a case-worker at a crisis intervention centre, this author has seen that a majority of women who face domestic violence are apprehensive of bringing a criminal case against the husband.
First, this is because they want to continue with the relationship, even though they want the abuse to stop. Second, the concept of police arresting one’s husband is difficult for a majority of Indian women to accept. Third, they worry that if the police arrest the husband, who will provide for the family. Hence the demand from women’s groups to pass a civil law whereby women can complain about violence within the family without depending on a criminal system. Now, it seems if the Muslim Women (Protection of Rights on Marriage) Bill, 2017 becomes an Act, Muslim women may lose all the remedies that the Domestic Violence Act gave Indian women irrespective of their religion. The Bill is completely silent about the Domestic Violence Act.
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In a letter to the Rajya Sabha, the Mumbai-based Forum Against Oppression of Women and a large number of other women’s groups and individual activists from all over the country pointed out, “There is no provision made for place of residence or physical protection under this Bill. As opposed to this, the Domestic Violence Act, 2005 provides under Section 19, Residence Orders provision not only for residence but also for physical protection. Thus, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 nullifies rights ensured by the Domestic Violence Act, 2005.”
This letter also mentions: “Chapter III, which is titled as Protection of Rights of Married Muslim Women, provides that a woman will be entitled to get subsistence allowance for herself, children, as well as custody of children”. It is important to note that the reference to ‘subsistence allowance’ does not elaborate how the allowance will be calculated. Moreover, the mere word ‘subsistence’ deprives women of basic dignity, denying their well established rights as specified under the Domestic Violence Act, 2005.
On the other hand, Section 20 of the Domestic Violence Act speaks of monetary relief. It is stated within it that “The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed”.
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The most important point that women’s groups have raised is that there has been no consultation on the Bill with groups that have been part of the movement for long. All India Democratic Women’s Association (AIDWA) condemned the Bill arguing that it was passed in a hasty and extremely undemocratic manner (in the Lok Sabha), without any public discussion and discussion with women’s organisations and groups working with issues related to Muslim women. They said they were against the criminalisation of pronouncement of instant triple talaq.
AIDWA has been at the forefront of the struggle to get instant triple talaq declared null and void. It has now been declared as invalid in law. But, as AIDWA argues, “The consequences of pronouncing instant triple talaq should be worked out and the woman’s position should be strengthened. Her rights should be safeguarded. The welfare of the woman has to be ensured.”
The current government is keen to pass laws but doesn’t seem interested in public discussion. Consultations with affected groups are imperative when laws are passed apparently for their benefit. A similar negative attitude was seen in the recent controversy around the Transgender Persons (Protection of Rights) Bill, 2016.
With reports of Muslim men being targetted for varied reasons in India, this new Bill paves the way for another kind of discrimination. Even if its intentions are noble, it may not be helpful to Muslim women at all.
For more details on different forms of divorce (including instant triple talaq) practised by the Muslim communities in India, please see here – Editor.