In India, the passing of the law by the BJP, otherwise seen as anti-minorities due to its Hindutva orientation, may be seen as discriminatory.
With its dogged pursuit of its agenda to ban triple talaq, the BJP created history when it got the Triple Talaq Bill through the Rajya Sabha, where the ruling party doesn't have a majority, on Tuesday. The bill had already been passed in the Lok Sabha, where the BJP has an overwhelming majority, and only awaits the President's assent to become law.
The way the balance of forces in the Rajya Sabha played out suggests that those in the Muslim community who are strongly opposed to the measure are unlikely to succeed in raising their opposition to it on the street in any significant way. This is despite the fact that banning triple talaq (talaq-e-biddat) interferes with the personal law of Muslims in India.
In Islam, a marriage is a civil contract. Can a breach of contract through the use of unlawful or irregular means (like triple talaq), which is against gender justice, be a criminal offence? The bill as passed by Parliament makes talaq-e-biddat a cognisable offence punishable with a jail term up to three years (although in some circumstances it does allow bail).
Union law minister Ravi Shankar Prasad ducked the question in the Upper House. He compared apples with oranges when he said that there were “penal provisions” in the Hindu Marriage Act as well as the Dowry Prevention Act, implying that this was sufficient ground to criminalise a practice under Muslim personal law in India too. But neither of these is a contract, and the difference is crucial.
The triple talaq law breaches Muslim personal law, and yet is likely to have many takers among Muslims, especially women, but also others due to the gender justice aspect — as talaq-e-biddat is a cruel medieval practice and is banned in most Muslim countries, including Pakistan. But in those exclusively Islamic societies where the ban on triple talaq has come into being as a matter of natural evolution in the progressive direction, it is not a criminal offence.
In India, the passing of the law by the BJP, otherwise seen as anti-minorities due to its Hindutva orientation, may be seen as discriminatory. However, in a 2017 ruling, the Supreme Court declared triple talaq illegal, and as not being a part of the integral aspect of Islam. This has given the government some ground to enact on the issue.
What is illegal should not be permitted to happen. That’s quite clear. But should it be made a cognisable criminal offence? Perhaps this matter should be taken to the Supreme Court. A practical way out is that it must be made legally mandatory to exclude talaq-e-biddat while drawing up the Musliam nikahnama, or marriage contract. In fact, the regressive All India Muslim Personal Law Board had promised to canvas the idea, but did not eventually bother.