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Home Politics Triple Talaq Ordinance: Split Wide Open

Triple Talaq Ordinance: Split Wide Open

Triple Talaq Ordinance: Split Wide Open
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Above: Muslim women celebrating after the passage of the instant triple talaq bill in the Lok Sabha/Photo: UNI

The centre has cited “compelling reasons” for taking the ordinance route to criminalise instant divorce among Muslims, but the political gains can’t be ignored 

By Puneet Nicholas Yadav

With political consensus proving to be a hurdle in the passage of the controversial Muslim Women (Protection of Rights on Marriage) Bill by Parliament, the centre on September 19 chose to criminalise instant triple talaq through an ordinance.

Instant triple talaq was declared “illegal and unconstitutional” by the Supreme Court last year. The ordinance now makes this an offence punishable with a three-year jail term for Muslim husbands. It is a replica of the Bill that the government had hoped to get passed by Parliament in the monsoon session, but couldn’t due to Opposition protests in the Rajya Sabha. The ordinance will now have to be converted into an Act of Parliament in the winter session. However, if Opposition disruptions again prevent enactment of the legislation in the session, the centre will push for re-promulgation of the ordinance.

The ordinance retains other provisions of the Bill (which in turn was an amended version of the original draft legislation that had been passed by the Lok Sabha last year). It proposes that only the “victim wife” or her blood relatives can file an FIR against the erring Muslim husband and his kin in a case of talaq-e-biddat and that only on the insis­tence of the wife can a magistrate order arbitration in the case.

Additionally, the ordinance stipulates that the husband and his kin can be granted bail only after the magistrate hears the “victim wife” and that the woman would have the liberty to seek custody of minor children and maintenance from the husband. Questions have been raised about the hurry in criminalising talaq-e-biddat. The winter session is just two months away and the centre could have used the time to reach a political consensus on the Bill and have it enacted by Parliament.

Union Minister for Law and Justice Ravi Shankar Prasad justified the need for an ordinance by stating that the Opposition, particularly the Congress, was “deliberately stalling the passage of the Bill by Parliament for pure politics of vote-bank”. He told reporters that there was an “overpowering urgency and compelling necessity” to criminalise instant triple talaq as “there were 430 instances of such cases between January 2017 and September 13 this year of which 201 cases had come to the knowledge of the government after the SC declared talaq-e-biddat illegal in August last year, proving that the barbaric practice was continuing unabated”.

SC aids acid attack victim

The Supreme Court has directed the UP government to ensure the protection of Shabnam Rani, a petitioner against nikah halala, and provide her adequate medical care. Shabnam was allegedly attacked by her brother-in-law and a friend of his in Bulandshahr district of UP for refusing to perform nikah halala with him.

A Delhi resident, Shabnam was married to Muzammil of Bulandshahr. She was given triple talaq by him. He told her to undergo nikah halala with his brother but she refused. She said she recently went to her in-laws to sort out some issues and the two men threw acid on her. She was taken to the district hospital where she was provided treatment. After the attack, Shabnam moved the apex court for security.

A three-judge bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud directed the Senior Superintendent of Police, Bulandshahr, to provide “adequate security to the petitioner”. He was also ordered to provide Shabnam a police escort “if she makes a request” whenever she chooses to go outside the state. The bench took note of Additional Advocate General Aishwarya Bhati’s submission that an FIR had been lodged in the incident and that the state had also provided her with some security, but directed that “if any additional security is required, the applicant may submit a representation to the concerned Superintendent of Police who shall scrutinize the same and do the needful”.

The chief medical officer of the district was told to ensure proper medical treatment for her. Senior Advocate Sajan Poovayya asked for compensation for Shabnam as an acid attack victim, but the bench said the Court’s earlier orders on compensation for acid victims would apply here and no separate orders were required.

Shabnam is one of the four Muslim women, all victims of triple talaq, who have filed petitions before the Supreme Court challenging the constitutional validity of polygamy and nikah halala. The other three are: Nafisa Begum, Sameena Begum and Farzana. Two advocates—Ashwini Upadhyay and Mohsin Kathiri—have also challenged the provision, while the Jamiat Ulama-i-Hind supports the practice. Keeping in mind the risk such women petitioners face, the bench advised all of them to approach the police for security.

—Atul Chandra in Lucknow

While the centre and BJP President Amit Shah argue that the ordinance “will make Muslim women fearless”, no solutions have been offered for the legal complications that its provisions will give rise to. Doubts linger over whether the threat of a jail term will make the husband live amicably with his wife. The ordinance doesn’t specify the amount of subsistence allowance a wife is entitled to. It also gives no answers about how and why a Muslim man will provide for his wife and children if he is in jail.

The law minister felt it prudent to assert repeatedly that the centre’s motives behind taking the ordinance route were born out of the need for “gender justice, gender dignity and gender equality” and that there was “no political agenda” in it. The Opposition is not buying this, though.

Congress media cell chief Randeep Singh Surjewala said the ordinance “is fundamentally flawed as it puts the onus of proving pronouncement of instant triple talaq on the wife, makes reconciliation nearly impossible. It creates a situation wherein the woman will be forced out of her husband’s home with no guarantee of a maintenance and subsistence allowance because a jailed husband will neither be willing nor capable of providing for the wife or their children.” Congress sources say that despite the centre’s assertions that there is no politics behind it, the fact is that “Modi and the BJP see instant triple talaq as a tool for splitting the Muslim community in the name of ensuring justice while actually ensuring that the law puts Muslim men behind bars and women on the roads”.

The timing of the ordinance too raises grave doubts as it coincides with RSS chief Mohan Bhagwat suggesting that the saffron parivar was willing to reach out to the Muslims, a community it has sought to persecute for decades. Bhagwat’s Muslim outreach was preceded by Modi’s uncharacteristic  presence at a congregation of Dawoodi Bohra Muslims in Indore. The sudden love and concern for Muslims by the torchbearers of hardline Hindutva is being witnessed at a time when the “secular” Congress is increasingly adopting a soft Hindutva line. Its party president, Rahul Gandhi, has been shown doing the rounds of temples, trekking to Kailash Mansarovar and being hailed in party posters as a “Shiva Bhakt”.

This aside, the BJP’s Muslim outreach comes months ahead of assembly polls in Rajasthan, MP and Chhat­tisgarh where opinion polls have so far suggested a saffron rout and Congress revival. The possibility of the Lok Sabha polls, due in April-May 2019, being brought forward to coincide with these polls is also being speculated.

In such politically charged times, the government’s urgency over the anti-triple talaq law cannot be divorced from electoral considerations, irrespective of the claims of the BJP leadership. It is difficult to predict whether the BJP will reap political dividends from the anti-triple talaq law. What is certain, however, is that the political slugfest over it does not guarantee justice to Muslim women who have been victimised by this word uttered three times. Justice for them may well be a mirage.

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