THE Lok Sabha has adopted the bill on talaq-e-biddat moved by the Modi government. The CPI(M) members of parliament had moved amendments to the bill and also demanded that it be referred to the standing committee. The bill is fundamentally flawed. There are several issues involved.

THE BACKGROUND

The issue of talaq-e-biddat or instant arbitrary pronouncement of divorce has been a privilege enjoyed by Muslim men in India at the cost of the dignity and security of Muslim women. In most countries with a substantial Muslim population including in those countries governed by the sharia, this form of divorce is not recognised. In the experience of women's organisations in India who are working with women who are traumatised because of domestic disputes or domestic violence, the fear of abandonment or divorce is very real and this cuts across communities.  For various reasons, including financial and cultural, women rarely move for divorce. Easy divorce procedures almost always favour men. There are no level playing fields between men and women in the domestic sphere in patriarchal societies like India. Therefore women who face divorce threats require mechanisms and procedures, whether through conciliation or counseling, which they believe can help to prevent arbitrary divorce and protect their rights and those of their children, if not their marriage. Arbitrary and instant triple talaq, a most cruel form of divorce was thus opposed by most women's organisations.

When all efforts at discussion by women’s organisations with so-called leaders of the community such as the Muslim Personal Law Board failed because of their retrograde mindset regarding women’s rights and their highly subjective and questionable interpretation of religious texts, Muslim women went to the Supreme Court for justice. In August 2016, the Supreme Court ruled in favour of Muslim women’s petitions although on differing grounds. The entire issue arose because of the struggle of Muslim women and women’s organisations which approached it as an issue of women’s equal rights within the framework of personal laws reform.

CPI(M) SUPPORT

The CPI(M) has supported personal law reform within communities. The Party welcomed the Supreme Court judgement. The main concern is that in the name of tradition or patriarchal interpretations of religious texts women of any particular community governed within the present framework of personal law cannot be denied justice or face discrimination compared to women of other communities. Thus the approach is based on an approach of personal law reform while expanding the ambit of secular laws applicable to women of all communities.  The  law for example on protections given to women against domestic violence which also provides civil remedies such as right to residence is an important legislation which gives equal rights to women of all communities. This twin approach, namely personal law reform combined with expansion in secular pro-women laws, in the particular circumstances prevailing in India will benefit women of all communities

In contrast, the BJP-RSS framework is premised on diluting the constitutional provisions for religious freedom on the pretext of protecting Muslim women’s rights. At the time of the court hearings, the Modi government made it abundantly clear through its various statements, that it saw the issue as an opportunity to score a political point against the community as a whole. The arguments of the then attorney general to expand the scope of the court intervention to other aspects of Muslim personal law and also for a uniform civil code were not accepted by the court. In fact, the then chief justice specifically referring to the AGs arguments warned against a “cascading effect.” Justice Kurien held that the “power of the legislature has to be exercised within the constitutional parameters without curbing religious freedom guaranteed by the constitution.” The court thus cautioned the government against a sectarian approach.

FUNDAMENTALLY FLAWED

But the Modi government has flouted the balanced and constitutionally guided approach of the Supreme Court and brought a bill which is fundamentally flawed on several grounds.

Firstly the bill was conceived, drafted and adopted without any discussion at all with those who are affected. The bill is titled The Muslim Women (Protection of Rights on Marriage) Bill, yet at no stage were Muslim women, their representatives or women's organisations consulted. It is a mockery and travesty of justice that the opinions of those in whose name a legislation is proposed, were ignored by this government. What then is the credibility of the claims made by government representatives that this was all done to help Muslim women?

In the past, all bills connected with women's rights have been discussed threadbare. For example, soon after independence, parliament considered the Hindu Code Bill which suggested radical reforms in personal laws applicable to Hindus. It took over ten years of discussions before it was finally adopted, although in a diluted form as far as women's rights are concerned.

The 2004  Bill on Amendments to the Hindu Succession Act to establish equal rights to Hindu women in ancestral property was referred to a standing committee which suggested certain amendments. Women's organisations had an opportunity to appear before the committee with their recommendations.  It was adopted only after the report of the standing committee had been considered. The law on protection of women against domestic violence also went through the standing committee. The 2010 Bill to amend Marriage laws to include irretrievable breakdown as a ground for divorce was also sent to the standing committee. Ultimately the bill lapsed.  There are numerous such examples. The question is why was the same procedure not adopted for the present bill?

This bill has been pushed through with hardly a day's discussion. The ruling party misused its single party majority in the Lok Sabha bulldozing the demand of the opposition to refer it to a standing committee for further discussion. This authoritarian method undermines democracy and the parliamentary form of governance.

Secondly, on substantive grounds too, the bill raises questions which require further discussion. The bill by including a three year jail sentence for any Muslim man who divorces his wife through the practice of talaq-e-biddat or instant and arbitrary triple talaq, criminalises what is essentially a civil matter. It makes the "offence" "cognisable and non- bailable." This is in sharp contrast to what the government approach is to an existing criminal law against domestic violence under Sec 498a. Here the Modi government wants to dilute the law and make it non cognizable and bailable. In one case it wants to make a civil matter a criminal offense and at the same time in another matter of concern to women of all communities, it wants to eliminate punishment for a criminal offense of domestic violence or dowry demands. Women's organisations are fighting the government moves on this count.

While making it cognizable and non-bailable there is no mention in the bill as to who is recognised as the complainant and within which time framework the complaint would be valid? In the absence of such a definition it would mean that any third party could without any time restriction, complain that such a pronouncement has been made and this would lead to arrest of the “accused” with no possibility of getting bail. This is a draconian clause which cannot be accepted.

The right to divorce or the act of divorce itself is not a criminal offence.  Personal laws of all communities give the right to divorce to both men and women. The issue is: what is the method of divorce accepted by law. The Supreme Court in its judgement held that the practice of instant and arbitrary triple talaq known as talaq-e-biddat, was invalid. Contrary to common public perception it did not strike down all forms of triple talaq as being invalid, but only one specific form, that of talaq-e- biddat. The 395-page judgement ends with a short order: "In view of the different opinions recorded, by a majority of 3:2 the practice of talaq-e-biddat - triple talaq is set aside." It is signed by all the five judges involved, namely Jagdish Singh Khehar (chief justice), Kurian Joseph, Rohinton Fali Nariman, Uday Umesh Lalit and S Abdul Nazeer. Nowhere in the judgement or even in the differing opinions recorded by the judges, does even a single one of them refer to the practice as a criminal offence. The main argument put forward by the majority was that it was not an essential part of the Koran, it was not practiced in a majority of countries governed by the sharia or where there were large Muslim populations. The judgement actually went against the Modi government's arguments which were essentially against Muslim personal laws in favour of a uniform civil code.

The minority judgement of Chief Justice Khehar and Justice Nazeer argued against any legal intervention on grounds that it was not for the courts but for the legislature to decide.

However they made it very clear from their comments that while suggesting that a "suitable" law should be adopted, they upheld the validity of practices which in their opinion were an essential part of religion, including triple talaq. It is therefore completely misleading on the part of government to claim sanction of the Supreme Court to justify pushing through the bill. In fact what the minority judgement said is, "If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’ (three pronouncements of ‘talaq’, at one and the same time) – as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate."

In several countries governed by the sharia, when the talaq is given three times at one and the same time, it is by law considered as only one talaq. This is the practice referred to by the then Chief Justice Khehar when he stated "that three talaq is redefined as one." In this method of divorce there has to be a minimum period of a month, or one menstrual cycle, before the second talaq is pronounced. And then another month before the third talaq. This also provides time and space for reconciliation procedures. This is far from the criminalisation approach which is the main thrust of the Modi government’s bill.

In some countries like Pakistan and Bangladesh there are provisions for imprisonment of the husband for between three months to one year. But this sentencing is enforced if the husband seeking divorce violates any of the legal procedures for divorce which include mandatory counselling and reconciliation discussions by designated authorities and so on. Mechanisms are provided for these procedures. But the present bill provides for no such procedures or mechanisms. These are issues which require further discussion and consultation.

Thirdly, the bill is self contradictory. While the stated purpose is to invalidate talaq-e-biddat,  it actually recognizes the talaq-e-biddat victim as being divorced as it speaks of custody of the children. Why should the issue of custody of children arise if the divorce is invalid and the woman is still married?

Further, the bill speaks of a subsistence allowance for the woman and her dependent children to be decided by a magistrate. If the man is in jail for three years, who will pay the allowance? Will Modi government do so? And when the man comes out of jail will the government guarantee that he will live with his wife? Obviously, not. Then in what way does the woman benefit?  There are laws in existence which guarantee better rights for women including the civil law against domestic violence which guarantees a portion of the shared home. The bill does not mention anything about the right to residence.

It is precisely because there are many issues which require further discussion including the question as to whether such a bill is required at all, that the demand for reference to a standing committee should get wide public support.

The credentials of the Modi government in being concerned about women's rights are questionable. The haste with which it wants to push this bill has more to do with narrow sectarian agendas than with the rights of Muslim women.