Divorced from reason

Advocates of women’s rights should be relieved that the debate over the triple talaq Bill was washed out in the Upper House on Monday after its swift, near-debateless passage through the Lok Sabha last month. This should not signal, as the ruling party seeks to portray, opposition politicians’ approval of the practice of this instant form of divorce, which has uniquely endured in the South Asian Muslim community. Triple talaq, or talaq-e-biddat, has no place in 21st century India. On this point, it is heartening to see that most major political parties are on the same page. Indeed, the Congress agreed to support the introduction of the Bill in the Lok Sabha. By rights, then, the ruling party should earn kudos for seeking to empower the rights of Muslim women, even as it highlights the failure of the so-called pro-minority Congress to do anything meaningful for the community it purports to champion.

But a closer look at the Muslim Women (Protection on Marriage) Bill suggests a degree of overkill, which makes the ruling party’s intentions somewhat suspect. Contrary to the intent of the legislation, it would weaken the position of Muslim women. Many have questioned the need for a law when the five-judge Supreme Court Bench had outlawed the practice in a landmark 3-2 judgment in August 2017. The government may argue that in introducing the legislation, as it initially did in December 2017, it was merely following the dictates of the apex court to make a new law on triple talaq within six months of the verdict. It has chosen to overlook the fact that the court also stated that if a law did not come into force within six months its injunction would continue. The fact that the first Bill was defeated in the Rajya Sabha, where the ruling party lacks the requisite numbers, should have convinced the government to let the matter rest. Even so, it chose to pass an Ordinance in September last year.

But the Ordinance and both versions of the Bill are deeply flawed. Clause four stipulates a three-year prison sentence and a fine. Clause seven in the original Bill states that the offence would be non-bailable, reduced to a bailable offence in the latest version. First, it is unclear why a civil contract should carry a criminal penalty. Second, the imprisonment clauses emphatically do not protect the rights of divorced Muslim women. Both Bills stated that a Muslim woman on whom talaq was pronounced was entitled to receive from her husband a subsistence allowance for her and her dependent children. How a man who is incarcerated for three years — which would likely mar his chance to earn a livelihood for the rest of his life — can be expected to pay his wife and children a subsistence allowance is an issue that no supporter of the Bill has answered. This remains the sticking-point between the government and the Opposition, and as Parliament reconvenes after the New Year break, it is hoped that this version of the Bill is appropriately modified so that Muslim women are genuinely empowered instead of becoming pawns in an electoral game.

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