Criminalising triple talaq: Will it liberate women?

The judgment by the Constitution Bench of the Supreme Court on the triple talaq issue in August this year was hailed as “historic” by one and all. It was projected as if the ruling would change the power dynamics of Muslim marriages; husbands would automatically stop uttering the word “talaq” in conflict marriages and the marriages will continue happily ever after. The fact that a Muslim woman will have to move a judicial authority that can declare the talaq invalid and claim her civil rights such as maintenance, residence in the matrimonial home or custody of children in the same way as all other women, since the pronouncement of Shamim Ara by the Supreme Court, was undermined in the euphoria after the judgment.

However, just three months later, we are told that despite the judgment, triple talaq has continued unabated and thus there is a need to bring in a statute to criminalise triple talaq, that alone can act as a deterrent. This seems a rather shortsighted view.

Granting the police an additional handle to incarcerate Muslim men may fit in perfectly well with the anti-Muslim agenda of a right-wing government. When the entire community is pushed to the wall and the lynching on a mere suspicion of possessing beef can cost a poor Muslim his life, how will this move empower the community or Muslim women within this community? If the ultimate goal of Muslim women is to save their marriage, even a violent marriage, from the husband’s power of arbitrary divorce, a criminal prosecution against the husband will surely aid in ending the marriage without securing her economic rights, which she is in dire need of.

It will be a similar remedy as filing a criminal complaint under Section 498A (anti-dowry provision) of IPC enacted in 1983. This provision empowered the police to arrest the husband and his relatives without a warrant, and for this reason it got flak from the Supreme Court, which brought a restraint on the immediate arrest of the husband and his family members and directed that the parties should undergo counselling as a preliminary step. The women’s movement too realised the futility of this provision. They realised it didn’t stop the menace of dowry-related violence and women need a civil law to protect their rights. Hence, after two decades of sustained campaign, in 2005, the Protection of Women from Domestic Violence Act was enacted. This is a uniform statute that all women can use to enforce their civil rights, including Muslim women who have been given oral talaq. But we saw hardly any discussion on this issue in the media or even by women’s groups during the hyped-up media campaign during the two years preceding the Supreme Court ruling. The situation remains the same even today. But since triple talaq has continued, it is now presumed that incarcerating the husband will be an effective curb — another quick-fix remedy!

But how will a poor illiterate Muslim woman, who has been deprived of her shelter and sustenance, be able to follow up a rigorous and daunting criminal prosecution against her husband and secure a conviction? And, more important, what will the conviction give the aggrieved woman? Convicting the husband for three, seven or even 10 years cannot ensure that this woman has food on the table to feed her minor children, clothe them and educate them.

If the ultimate desire of a Muslim woman is to save her marriage rather than break it, and ensure that her civil rights such as shelter and maintenance are protected, criminalising triple talaq may not be the answer. It will just be another gimmick to fuel anti-Muslim sentiments in society. Using the provisions of the Domestic Violence Act along with the 1986 Muslim Women Act or challenging the talaq using the recent Supreme Court judgment will ensure that the woman isn’t deprived of her shelter and sustenance. This can even compel the husband to arrive at a lumpsum settlement.

The opinion, even among those campaigning for Muslim women’s rights, seems split on this issue, with a section, backed by secular women’s rights organisations, sending out a clear signal that they oppose this move by a right-wing government. If a large segment among campaigners against triple talaq does not support such a move, then what is the justification for enacting such a law in haste? Something seems to be amiss here.

According to Abusaleh Shariff and Syed Khalid, the publicity that triple talaq got during the campaign is next only to demonetisation, which affected the majority of Indians, while the issuing of triple talaq affects a miniscule minority of Muslims. Commenting on the manner in which this issue was used by the Prime Minister during the election campaign in Uttar Pradesh, the authors, relying upon 2011 census data, highlighted the fact that the number of deserted Hindu women who live in deplorable conditions far exceeds the number of Muslim divorcees and deserted women. The numbers are staggering — out of 2.3 million separated and abandoned women, around two million are Hindus, while only 2.8 lakh are Muslims. Yet no attention is paid to them. Drawing on the 2001 census report, they pointed out that despite the hype, divorce among Muslims is much lower than in the majority community. If deserting the wife is not a criminal offence, how can discarding her through triple talaq be seen as one, when the impact of both upon victims is similar?

Giving the issue communal flavour, the then new chief minister of Uttar Pradesh, Yogi Adityanath, compared triple talaq to the disrobing of Draupadi. Another of his Cabinet colleagues, Swami Prasad Maurya, commented that Muslims resort to talaq to keep “changing wives” to “satisfy their lust”, and leave their wives to beg on the street, which aroused the wrath of members of the Muslim Women’s Personal Law Board, who demanded his resignation. The fact that this group also campaigned for the abolition of triple talaq and intervened in the Supreme Court reflects the tightrope walk that Muslim women who are demanding a change in their personal laws are faced with.

It is against this political backdrop of Muslims being pushed to the status of second-class citizens that we must examine the exaggerated interest in the triple talaq issue by the media and the government’s eagerness to reform the Muslim personal law.

The demand for a new statute is problematic under the current political dispensation, with its stated anti-Muslim agenda. In a recent article, former Congress MP Mani Shankar Aiyar asked a pertinent question: whether this government, with the lowest Muslim representation, just 4.2 per cent, is in a position to legislate on matters of Muslim marriage and divorce which the community considers are important markers of its identity? What Muslim women need is not another legislation or criminalisation of triple talaq, but more legal awareness about their rights within the community and adequate legal representation to avail of their existing rights.

The writer is a women’s rights lawyer