By Tufail Ahmad
Jan 04, 2018
The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in the Rajya Sabha on 3 January. The Bill, which criminalises Talaq-e-Biddat (instant triple Talaq) was passed by the Lok Sabha on 28 December without debate and discussion. There are serious issues with the Bill. Rajya Sabha must amend the Bill, or send it to dustbin in its current form. It fails Muslim families in the following ways.
The Bill provides for the maintenance of a wife divorced via instant triple Talaq. It does not provide for the maintenance for a wife divorced via other forms of triple Talaq. It also doesn't provide maintenance for the wife divorced via any other means, notably when a Muslim woman is granted divorce by a court. The Bill also doesn't invalidate the infamous Shah Bano law, which was passed by the Rajiv Gandhi government in 1986, denying alimony to divorced Muslim women.
There are serious questions on the Bill's maintenance clause. Take two scenarios: first, a security guard who earns a daily wage totalling 10,000 rupees a month utters instant triple Talaq; second, a university lecturer who earns Rs 60,000 a month. In the first case, the security guard who will be jailed will earn around Rs 8,000 a year in prison. (Sanjay Dutt earned 38,000 over a five-year period in jail). Even if he gives all the money, what benefit it brings to the affected woman? Under Section 125 of the Code of Criminal Procedure, a Mumbai court even rejected a maintenance of Rs 1,500 to a woman who was earning Rs 8,000.
In the second scenario, if the lecturer's wife too is a lecturer or earns a decent salary in another high-paying job, there is no reason why she should be given maintenance. Her claim for maintenance can be effectively challenged on the grounds of the fundamental right to equality under Article 14 since she has a decent source of income. Courts have rejected maintenance to educationally qualified women married under the Hindu law. Courts have also granted maintenance to husbands where the wife was working and the husband was jobless – even for regular litigation expenses.
The bulk of cases of instant triple Talaq involve the lower income groups of Muslims, affecting families in which men are mechanics, labourers, tailors, and so on. In cases affecting them, the major problem is for the woman because she will be required to go to court to prove that the husband divorced her via instant triple talaq. In cases of oral instant triple Talaq, it will be almost impossible for such a woman to prove any case against the husband, who will languish in jail before finally being acquitted. Therefore, the triple Talaq Bill is badly drafted.
The sole purpose of the Bill seems to imprison Muslim men, not to help the affected women. The Bill ensures that a Muslim husband will be jailed for up to three years. By the Supreme Court order of 22 August, the instant triple Talaq is already illegal. So, a question arises: why to jail the husband when the divorce hasn't taken place under the laws of India. Marriage and divorce must remain within the civil law. If the unwritten purpose of the Bill is to create another domestic violence law, the government can incorporate the instant triple Talaq in the Domestic Violence Act of 2005, though I do not favour any civil matter to be criminalised.
Under the Bill, the woman will get the custody of children. Irrespective of religious consideration, this is unfair on fathers. In all cases of separated and divorced families, children must be under joint custody. Fathers have a beneficial role in a growing child's life. The Bill punishes children. Its biggest flaw is that it assumes that the instant triple Talaq has taken place. The Bill basically agrees with Islamic clerics' view that instant triple Talaq is valid – this is a violation of the Supreme Court's 22 August order which set aside this form of divorce. In a fine piece on legal inaccuracies of the bill, journalist Ajay Kumar argues: "If the Talaq itself is void, there can hardly be a question of maintenance or custody. They only come into play post a divorce."
The Bill is definitely not a reform in Muslim family laws. It doesn't address the essential question of unilateral divorce by Muslim husbands. Even after it becomes a law, a Muslim husband will be forced to use his unilateral power of divorce through two other forms of triple Talaq: one, he must send one Talaq to his wife and wait for three months for the divorce to take effect; two, he must send one Talaq each month to his wife for three months, making the marriage invalid. Since the Bill doesn't make unilateral divorce invalid, how is it even a first step towards reform?
Most non-Muslims don't grasp the fact that a Muslim husband is effectively barred from going to court for divorce. At present, a Muslim woman can go to courts, Islamic clerics, or community elders to seek divorce. However, Muslim husbands cannot go to court to seek divorce. The Rajya Sabha must amend the Bill, or write a new legislation, to enable Muslim husbands to go to court. The Supreme Court had reminded the government that Muslim husbands don't have a judicial forum to seek divorce. On 15 May, the then attorney general Mukul Rohatgi informed the Supreme Court that if instant divorce is struck down, the government would bring a law "to regulate marriage and divorce" among Muslims. The Bill that was passed by the Lok Sabha has failed to fulfil this promise.
When the Bill was introduced in the Lok Sabha, the Leader of the Congress in the House, Mallikarjun Kharge, and other Opposition MPs requested that the Bill be sent to the standing committee on law and justice. However, since the government has brute majority in Lok Sabha, it rejected this request. In democracies, the opposition serves as a catalyst for positive change. It doesn't appear that despite its own assurance to the Supreme Court, the government is interested in reform among Muslims with regard to marriage and divorce laws. Let's not forget: Muslim women who went to the Supreme Court against triple Talaq did so in order to save their marriage because Indian society looks down upon divorced women.
In its current form, the Bill is designed to keep alive the triple talaq issue, as I have argued, for electoral and political purposes. There are also other concerns that Muslim men can be harassed by cops, especially when communal leaders win in a certain region. Under this Bill, the instant triple talaq is cognisable offence, which means – as noted by the writer Rana Safvi – a policeman does not need a warrant to arrest, nor does the complaint have to be filed by the Muslim woman. Any person can file a complaint against a Muslim husband leading to his arrest. This Bill is arbitrary in nature.
The Rajya Sabha, therefore, must introduce amendments in the Bill or consign it to dustbin and write a new expanded legislation that addresses numerous questions surrounding Muslim family laws. This is essential for reform among Muslims and their integration in the emerging social order of India. A Muslim family reform bill must outlaw all unilateral forms of divorce by a Muslim husband. It must also outlaw practices such as Mehr, Halala, polygamy, two Muslim women's testimony being equal to one man's, the girl's inheritance being half of a boy's, the guardianship of male over female, and so on. These are real issues facing the Muslim families.
Tufail Ahmad is Senior Fellow for Islamism and Counter-Radicalization Initiative at the Middle East Media Research Institute, Washington DC