After tainting Muslims as terrorists, BJP has used many such tactics to diminish Muslims in the name of love jihad, population blast, beef politics and lynching. And now BJP has found its new way in portraying Muslims as violators of women’s rights. The recent bill which was passed in Lok Sabha, criminalising triple talaq has once again proved that BJP in a bid to portray itself as saviour of Muslim women has landed them in a problematic situation in the name of gender justice. BJP did not face much opposition except few including RJD, AIMIM.
This bill is being opposed by many women’s rights groups, for it has many contradictions to the verdict of the Supreme Court pronounced four months ago, declaring triple talaq as unconstitutional and invalid. And if passed in the Rajya Sabha with the same subtle attitude of opposition, it will result in a law that will not only harm Muslim women but the whole Muslim community. Now the question arises if triple/instant talaq is invalid, for what crime would be a Muslim husband is criminalised.
Faizan Mustafa, a renowned legal expert and Vice Chancellor of NALSAR University of Law, Hyderabad, said, “The purpose of criminal law is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests.”
And according to the verdict of the Supreme Court, instant talaq holds no effect and marriage would continue to subsist. Thus criminalising an offence which has no legal effect is totally illogical and absurd.
It is very clear that with this bill all possibilities of reconciliation between the couple would come to an end if the husband is criminalised and a Muslim woman has to look up to others for maintenance of her and her dependants. In the Indian patriarchal society there are all possibilities of a woman being ill-treated by the society in general and by in-laws in particular when her husband is sent to jail. How a woman as a single parent would lead her life is a fact well known to all.
This bill is bound to leave many consequent impacts on husband-wife relationship and children and the Muslim society as a whole. It will not only make woman homeless, maintenance-less and estranged though the bill says that she has all right to stay in her matrimonial home, how many will abide and what treatment will be rendered to her is a question. And when the husband returns from jail, what impact will be on his social and economic life is also in question. And the most consequent impact will be on the children of the couple who will be labelled as children of a ‘criminal’ which will not only hinder their personality growth but would also land up many daughters and sons in a state of insecurity and jeopardise their future. It will not only destroy the very essence of the family institution but also add to the prevailing alienation among the Muslim community.
Another backdrop is that this bill makes triple talaq a cognizable and non-bailable offence which will give all chances to any third person having personal grudge to file an FIR against the husband and the police will need no warrant to arrest him and there is no provision of wife taking back the case.
As also pointed by Abhishek Sudhir, founder of Sudhir Law Review, a legal education website, “When an offence is non-cognizable, it is considered a private wrong and prosecuting the offender is left to the initiative of the individuals actually aggrieved by the offence. The rationale underlying such restrictions is that the world at large should not be allowed to prosecute an errant husband, especially when the aggrieved wife has no desire to see him punished.” For instance, in case of marital rape {section 376B of IPC} and bigamy {section 494 of IPC}, the police will probe an investigation only when wife wishes to do so, whereas in case of triple talaq wife has no such authority.
The fact that needs to be pondered upon is that if the present government really wants to empower Muslim women as said by the Law Minister in the Lower House they should empower them by increasing education and employment facilities so that no matter according to correct procedure or instant talaq a woman should be in a position of maintain herself and her dependants. Why the present Govt bent upon proving that Muslim women are leading a life of insecurity and at the mercy of their husband with a sword of divorce swaying over their head always.
The bill of this nature, having attracted so many contradictions from many right thinking intellectuals, should have been discussed and interpreted with the Shari’ah experts, women rights activists as well as legal luminaries before getting it passed it in the Lok Sabha which witnessed hasty and hurried free passage. Now the onus is on all the right thinking individuals and organisations to confront this bill with logic and pave a possible way for giving justice to Muslim women in real terms.
[The writer is Asst. Professor, Department of Women Education, Maulana Azad National Urdu University, Hyderabad]