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Adding law to injury

If the earlier demand for the declaration of triple talaq as unconstitutional and or un-Quranic had united progressive Muslim women and men, the Union government’s declared intent to pass a law in the winter session of Parliament criminalising the practice has created a schism among them. Nothing illustrates this better than the sharply contrasting positions of the Bharatiya Muslim Mahila Andolan (BMMA), an all-India organisation of Muslim women, and the Bebaak Collective, an umbrella body of Muslim women’s groups across the country. Both had impleaded themselves in the petition filed by triple talaq victim Shayara Bano in the Supreme Court seeking a ban on triple talaq, halala and polygamy.

Though the 3:2 majority verdict of the highest court of the land which “set aside” triple talaq fell far short of expectations, progressive and liberal Muslim women and men had welcomed it as an important step forward in the fight for gender justice.

However, the court order left many questions unanswered. What if, the judicial pronouncement notwithstanding, a Muslim husband goes ahead and utters the dreaded words “talaq-talaq-talaq”? Where does an aggrieved wife turn to for justice? Would such an utterance count as a single talaq as enjoined in the Quran? Or, had the court verdict rendered these words meaningless, incapable of hurting or harming the wife? Or, are these words absolutely irrevocable and the wife becomes strictly prohibited (haraam) to her husband the moment these words are uttered, as the ulema insist? If triple talaq is declared illegal what will be a legally valid form of talaq (divorce)?

Progressive Muslims agreed there was a need for the legislature to speak on questions the judiciary had chosen to remain silent on. But now that the government plans to make triple talaq a crime punishable with three years in jail and a fine, the BMMA and the Bebaak Collective find themselves in opposite camps. While the former has welcomed the proposed penal measure as a “necessary deterrent”, the latter has denounced it as “a vicious ploy of the BJP government to criminalise Muslim men”.

 Also among the staunch proponents of criminalisation are women’s rights activist, lawyer and former MLA from Tamil Nadu, Bader Sayeed, and Islamic scholar, Zeenat Shaukat Ali of the Wisdom Foundation. On the same page as them are the expert on Muslim personal law and former chair of the National Minorities Commission, Tahir Mahmood (‘In the interest of justice’, IE, December 5) and former Union minister, Arif Mohammed Khan. In fact, it was Khan who had proposed a three-year jail term earlier this year while the argument on triple talaq was raging in and outside the apex court.

The pro-criminalisation progressives maintain that the prime intent behind enacting a stringent law is not to punish the offender but to act as a deterrent. The prospect of three years in jail is necessary, they argue, to warn the Muslim husband that the sword he had so far held over his wife’s head will henceforth hang over his own. Simple: No one gives triple talaq, no one gets hurt, no one goes to jail.

On the other side, Bebaak Collective is staunchly opposed to criminalisation, not only because it sees it as a “vicious BJP ploy”, but also because it is opposed to the idea “in principle”. It argues that since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature only. It favours “civil redress mechanisms and restorative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage”.

Many members of the organisation this writer represents too were inclined in principle to the criminalising of triple talaq as a necessary deterrent for an errant husband. However, the draconian provisions of the proposed bill make it unacceptable for several reasons. One, the harsh punishment defies the doctrine of proportionality.

Two, irrespective of the government’s intent three years in prison of the convicted husband will end up penalising the already aggrieved wife and children too. He will be fed, clothed and housed by the jail authorities. But minus his income, who will pay for the needs of his wife and children? Three, the draconian punishment cannot but aggravate the already acute insecurity and alienation of the Indian Muslim community — its womenfolk included — under the current regime. Four, given the widely acknowledged anti-Muslim bias in a section of the Indian police, where is the guarantee that the new law will not be deployed as yet another potent weapon against Muslim men?

All things considered, what would be in the best interests of justice to Muslim women is to invoke a secular law that already exists: Protection of Women from Domestic Violence Act (PWDVA), 2005. If justice to Muslim women rather than punishing Muslim men is the real objective, Parliament should pass a law unambiguously stating that the very utterance of the words “talaq, talaq, talaq” would amount to “domestic violence” as defined in the PWDVA.

Under the Act, the wide-ranging definition of domestic violence includes any act that “harms, or injures, or endangers the health, safety, life, limb or well-being, mental or physical, of an aggrieved person”. It protects women against “abuse”, whether physical, sexual, verbal, emotional or economic.

If calling a Dalit by his caste name with an intention to insult is an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, there is every reason for the utterance of talaq-talaq-talaq to be deemed an offence under the PWDVA. The PWDVA was conceived as a law that ensures speedy relief — ideally within three months — to an aggrieved woman: Right to stay in the marital home, protection against violence, right to maintenance etc. What’s more, she is provided the free services of a government-appointed “protection officer”. This saves her lawyer’s fees for which she often has no money.

The real beauty of the PWDVA lies in the fact that while civil in nature, it has a reasonably stringent penal provision built into it. Compliance with the magistrate’s order will ensure speedy relief for the wife and children. For the husband, too, it will mean saving on lawyer’s fees and avoiding the stigma of jail. Non-compliance with the magistrate’s orders will mean imprisonment of up to one year, or fine up to Rs 20,000, or both (Section 31 of the Act).

The writer is convener, Indian Muslims for Secular Democracy and co-editor, ‘SabrangIndia’

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