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Criminalising Triple Talaq: BJP Appears To Be More Interested In Playing Politics than Helping Muslim Women


By Tufail Ahmad

Dec, 05 2017

There Is Triple Talaq, And Then There Is The Politics Of Triple Talaq

The first concerns Muslim women's empowerment, the second is the politics – or public relations and propaganda – to drive votes to the Bharatiya Janata Party. In 2017, the BJP figured out that not fielding a Muslim candidate or talking about triple Talaq unites Hindu voters; the leadership is not quite interested in the welfare of Muslims.

The central government has drafted a bill which seeks to imprison a Muslim husband for three years and fine him for using the instant triple Talaq. It has sent the bill to states for their views. In the world's largest democracy, the elected government does not consider it necessary to release the bill for public discussion, nor does it think it useful to consult with women's rights groups on the issue. A clique of ministers can decide the fate of this nation without consultation.

There Are Three Forms Of Triple Talaq: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat

Talaq-e-Ahsan is the best form of divorce whereby a Muslim husband delivers one Talaq and waits for it to become valid after three months. Talaq-e-Hasan is the second-best form of divorce, authorised by the Quran, whereby a husband delivers one Talaq each month for three months. Both these forms of triple Talaq are valid in India. Talaq-e-Biddat, also known as instant triple Talaq whereby a husband can utter three Talaqs in one sitting, was banned by the Supreme Court on 22 August.

But, the government's entire strategy is focused on Talaq-e-Biddat, which is already banned – not on the other two forms of Talaq, which too are unilaterally delivered by a Muslim husband. Only the Talaq-e-Biddat, the instant triple Talaq, helps galvanise Hindu voters. So, the Modi government speaks on triple Talaq especially at the times of elections. And there are more of them coming soon in Karnataka, Madhya Pradesh and Rajasthan. The draft bill is about the instant triple Talaq, not about the other two types of unilateral divorce. If the BJP were not on the other side of electoral honesty, the bill would have considered all unilateral Talaqs.

Unfortunately, the doors of India's judiciary are closed to the Muslim husband. He cannot go to courts to seek divorce.

So, in the cases of marital breakdown, the Muslim husband is left to either go to Islamic clerics or to draft his own do-it-yourself divorce. Under the Dissolution of Muslim Marriage Act 1939, Muslim women can go to courts in India for divorce. But the Muslim husband has no option but to send a Talaq by letter, email, phone, SMS or other means – all of which are as of now legally valid. If the Modi government was serious about reform, it would draft a Muslim family reforms bill, enabling a Muslim husband to seek divorce in court.

Journalists have asked the government whether the Muslim husband will face simple or rigorous imprisonment. There is no answer. The draft is not open for discussion. It's enough that the prime minister and his cabinet have seen it. To my knowledge, there is no country in which marriage and divorce are part of the criminal justice system. By announcing that the husband will be imprisoned for three years, the government is harassing Muslim husbands for electoral purposes. One can support fines in the cases of civil matters, but one fails to understand how criminalising divorce benefits anyone. Laws on rape are part of criminal law, but they have failed to stem the rise of rapes right in the capital of India where the king's ministers sit and decide, for the party, not for the nation.

There are issues in the implementation of laws. If the Modi government's intention is to treat triple Talaq as a case of domestic violence and thereby punish the husband, India already has laws on this subject. Under India's social ethos, divorce is seen as unacceptable. Therefore, divorced Muslim women are already using both the Domestic Violence Act and the 498A law on dowry harassment to settle scores against husbands. It has been seen that both in the case of Talaq-e-Ahsan and Talaq-e-Hasan, Muslim women have filed 498A cases. Now, instead of addressing the issue at hand, the Modi government wants to bring in another domestic violence law on the instant triple Talaq.

The issue is not the instant triple Talaq. The real issue is that a Muslim husband is barred from seeking divorce through courts. Once this is addressed, the instant triple Talaq, or even a quadruple Talaq, doesn't matter if the same is delivered by a Muslim husband in court after approval from a judge. If the government is not electorally motivated on this issue, it should introduce a Muslim family reform bill which should outlaw all forms of unilateral divorce, Halala, Mehr ('dowry' given to the bride), and address issues such as maintenance to divorced wives and child custody. Or, it can stop playing Hindu-Muslim politics by enacting a Uniform Civil Code. For now, the Modi government is engaged solely in propaganda and electoral politics on the triple Talaq issue.

Tufail Ahmad is a Senior Fellow for Islamism and Counter-Radicalisation Initiative at the Middle East Media Research Institute, Washington DC