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Above: Muslim women protesting against the triple talaq Bill/Photo: UNI

Despite diluting the Muslim Women (Protection of Rights on Marriage) Bill that criminalises instant triple talaq, the centre failed to get the draft law passed by Parliament while doubts linger over the real agenda behind it

~By Puneet Nicholas Yadav

A year ago, a historic verdict by a constitution bench of the Supreme Court had outlawed instant triple talaq or talaq-e-biddat, terming it “arbitrary, unconstitutional, illegal and even un-Islamic”. The minority verdict delivered by then Chief Justice JS Khehar and Justice S Abdul Nazeer had favoured legislative recourse for banning talaq-e-biddat. The Narendra Modi government latched on to this minority verdict and declared that such a legislative framework would be brought in soon. It is a different matter that the majority verdict—delivered by Justices Kurian Joseph, Rohinton Nariman and UU Lalit—had overruled the minority verdict and outlawed instant triple talaq with immediate effect, thereby rendering futile the need for a legislative ban against talaq-e-biddat.

But the Modi government went ahead with its plan anyway. It set up a five-member group of ministers that, within three months of the Supreme Court’s verdict, drafted the Muslim Women (Protection of Rights on Marriage) Bill and then sought to have it cleared by Parliament during the delayed and curtailed winter session that was convened in January.

The draft law which reiterates instant triple talaq as illegal (the top court had already done so unequivocally) and a criminal offence punishable with a three-year jail term for the erring husband, had sailed through the Lok Sabha but got stuck in the Rajya Sabha.

Six months after that embarrassment, the cabinet recently approved amendments that diluted various provisions of the Bill ostensibly to accommodate the Opposition’s concerns. The centre may have hoped that doing so would enable passage of the amended draft legislation during Parliament’s recently concluded monsoon session. This was not to be.

Listed in the Rajya Sabha’s legislative business curiously for discussion and passage on August 10—last day of the session which was also a Friday (normally reserved for Private Member Bills and resolutions)—the Bill was not introduced by the centre. The chairman, M Venkaiah Naidu, announced that disruptions would not enable a debate on such crucial legislation. The Bill has thus been deferred to the winter session.

Predictably, the Treasury benches were quick to blame the Congress and other Opposition outfits for “deliberately” stalling the passage of the Bill due to “vested interests”—a view also voiced by the prime minister in his Independence Day address. The optics—a hardline Hindutva party fighting the “secularists” to ensure justice for thousands of wronged Muslim women—make for an interesting narrative in an election year. The political machinations behind the Bill are, thus, just as important as the provisions of the draft law.

There are three key differences in the revised Bill, although the contentious issue—of making instant triple talaq, an essentially civil dispute in a marriage contract, a criminal offence—has not been resolved.

PM Narendra Modi in his Independence Day speech took credit for trying to end triple talaq and blamed “some people” for stalling it/Photo: UNI
PM Narendra Modi in his Independence Day speech took credit for trying to end triple talaq and blamed “some people” for stalling it/Photo: UNI

The draft law passed by the Lok Sabha during the winter session had made pronouncement of talaq-e-biddat a non-bailable offence. The amendments approved by the cabinet allow a magistrate to grant bail after hearing the victim. Secondly, while the earlier draft allowed anyone to file a complaint against a Muslim man for divorcing his wife through three consecutive talaq pronouncements, the amended draft says that only the wife or her relatives can do so. Lastly, the new draft makes the offence compoundable—a magistrate can allow withdrawal of the case if the wife seeks reconciliation and the husband agrees.

The changes in the proposed law reflect some of the concerns raised by Opposition parties and stakeholders from the Muslim community against the original Bill. However, they also raise new doubts. The most vociferous protests against the Bill continue to come from members of the All India Muslim Personal Law Board (AIMPLB) and Muslim politicians like Hyderabad MP Asaduddin Owaisi. Owaisi has maintained his criticism of the Bill being “a tool to imprison Muslim men” and demanded that it be sent to a select committee of Parliament for further deliberations. Various Opposition parties too favour a greater scrutiny of the Bill by a Parliamentary Select Committee.

Why the Modi government is reluctant to do so is inexplicable, even worrisome, as conventionally, governments refer crucial Bills to different parliamentary panels so that disparate views are factored in before arriving at a consensus. Even progressive Muslims who have been demanding a strong deterrent against the abhorrent practice haven’t wholeheartedly lapped up the proposed draft Bill despite the changes.

Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan (BMMA) which fought hard in the apex court to have talaq-e-biddat declared illegal, believes that the changes are better than the earlier provisions and wants Opposition parties to support the Bill’s passage. However, she insists that a better way out would have been to bring in a codified Muslim Personal Law. “The changes to the Bill leave scope for reconciliation, unlike the earlier draft. However, our demand for a codified law still exists. There is no guarantee that attaching criminality will act as a deterrent and the issue of desertion of the wife, something common even in other communities, remains unresolved. A codified law could deal with such issues better,” Soman told India Legal.

Professor Faizan Mustafa, vice chancellor of Hyderabad-based National Academy of Legal Studies ad Research (NALSAR), was blunt with his criticism. “I firmly believe that a civil matter like marital dispute should not be made into a criminal offence. A better way out would have been to work within the means of civil jurisprudence. The government could have brought a law which said that a husband pronouncing instant triple talaq will have to pay the wife five times the agreed mehr (dower) and face jail upon non-payment.”

Mustafa says that the three-year jail term is “extremely disproportionate to the offence”. “If you look at the Indian Penal Code, offences like culpable homicide not amounting to murder, printing and smuggling of counterfeit currency, certain categories of sedition charges, etc., attract a lesser penalty. The provision is bizarre,” he told India Legal.

The Congress party, which has to take the blame for forcing Muslim women to continue facing the ignominy of being forced out of marriage due to talaq-e-biddat because of its legislative reversal of the 1985 Supreme Court verdict in the Shah Bano case, has now been backing the move to ban instant triple talaq. However, it is still opposed to the Modi government’s Bill.

Sushmita Dev, All India Mahila Congress chief, told India Legal: “We support any move to declare instant triple talaq illegal. However, the draft Bill is unacceptable because it doesn’t ensure that the wronged wife gets the means to sustain herself and her children after being abandoned by her husband following an illegally pronounced divorce. Where is the guarantee that the husband will provide financial assistance? Why will he or his family pay the wife if he is imprisoned?”

While Modi and his law minister, Ravi Shankar Prasad, have been quick to blame the Opposition for stalling the passage of the Bill, the events that unfolded in the monsoon session tell a different story. For a better part of the  session, the Bill was not listed for discussion and passage in the Rajya Sabha. Then, days ahead of the session’s conclusion, the cabinet approved changes to the Bill and listed it for passage on August 10—the last day of the session.

Disruption in proceedings of the Rajya Sabha had been witnessed through the session. It was evident that the last day would be no different given the Opposition’s relentless attack over the alleged Rafale deal scam. Even if the Rajya Sabha had cleared the new version of the Bill, it would have to be sent back for discussion and passage by the Lok Sabha—something that was unlikely to happen within a day.

Why didn’t the government show greater sincerity and urgency in getting the Bill passed by Parliament if the interests of Muslim women was a subject “close to the heart” of the prime minister? Perhaps BJP leader Subramanian Swamy gave the game away long before the changes were even made to the draft Bill. More than a month back, in candid interviews to a news agency and portal, he claimed that the BJP raked up the issue of banning triple talaq to “divide the Muslim community’s vote, gain votes of Muslim women while continuing to consolidate its Hindu support base”.

Promises of social reform, even unfulfilled ones, are a good gamble for winning elections. The next Lok Sabha polls are less than a year away. Muslim women may, however, need to wait longer for the actual reform to happen.

The journey for justice is still far from over.

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