Triple talaq back in focus as India prepares for a new government

Photo: Indian Prime Minister Narendra Modi and chief of India's ruling Bharatiya Janata Party (BJP) Amit Shah, greet each other before releasing their party's election manifesto for the April/May general election in New Delhi, India, April 8, 2019. The BJP has pledged to eliminate the practices of triple talaq and nikah halala, if re-elected. REUTERS/Adnan Abidi

As the issue of instant triple talaq has become a hot topic for political debates in India, with both ruling and opposition parties trying to gain political mileage from it, women activists say the issue of gender justice has taken a backseat.

“At present, politics has taken centre stage; justice for women can wait, unfortunately,” said Zakia Soman, founder of Bharatiya Muslim Mahila Andolan, a social organisation that was one of the petitioners in the triple talaq case in the Supreme Court.

Political parties are divided on the issue of instant triple talaq, with the BJP-ruled incumbent government pushing to enact a law with a provision for jail terms of up to three years for offenders.

But they are facing strong resistance from opposition parties and Muslim organisations that demand the issue be further discussed and debated both within and outside Parliament before being passed into law.

“What the government is doing is completely arbitrary. They are not ready to consult with people for whom they are making a law. It’s very strange,” said Maulana Khalid Saifullah Rahmani, an Islamic scholar and founder member of the All India Muslim Personal Law Board (AIMPLB). “If a serious government comes to power, we will engage with them and suggest what could be done to stop this practice.”

India has just completed the voting phase of its general election and results are expected on Thursday. Exit polls indicate that the incumbent Bharatiya Janata Party, viewed as a Hindu nationalist party, will return to power with a stronger mandate. Before the election, the BJP faced social and political opposition to the Muslim Women (Protection of Rights on Marriage) Bill, 2018, forcing it to issue an ordinance instead.

Even the ordinance faced resistance and had to be re-promulgated three times in less than a year, indicating that the government was determined to bring this measure into law. Under Indian law, an ordinance has a maximum validity of six months, after which it has to be made into a law by Parliament, or it lapses. It can, however, be reissued. The third promulgation will lapse on June 3, when the previous Parliament is officially dissolved to make way for the newly-elected MPs.

DILUTED BY CONTROVERSY

Women activists say their triple talaq movement had found a lot of support but was diluted by the controversy surrounding the ordinance. “Just when people were supporting it, [the government] made such a move [of bringing an ordinance],” said Soman.

Non-Muslims, intellectuals, lawyers and those working on matrimonial law have the same opinion, that “this ordinance is absurd and inappropriate”, said Uzma Naheed, social activist and founder of India International Women’s Alliance (IIWA). “The way the government has brought the ordinance without consulting the community people, ulema and muftis shows that they want to take a one-sided decision,” she said.

Prime Minister Narendra Modi, at a public rally on April 15, reiterated that the triple talaq bill would be tabled in Parliament once the BJP returns to power. In its published manifesto, the BJP has pledged to eliminate the practices of triple talaq and nikah halala, if re-elected.

On the other hand, the main opposition party, the Indian National Congress, and its ally, the Nationalist Congress Party, have vowed to scrap the triple talaq bill in its present form.

Once the new Parliament is formed, Soman said they would once again start a campaign and write to individual MPs. “We will try to bring this issue as much as possible into the public discourse.”

BY THE COMMUNITY, NOT BY LAW

Most Muslims seem to agree that instant triple talaq is the least preferred mode of ending a marriage and should be discouraged. But they want this to happen at the community level; not through a law.

“Triple talaq is a social evil that can be eradicated only through educating people and creating awareness about it,” Syed Mohammed Wali Rahmani, General Secretary of AIMPLB, had told Salaam Gateway in an earlier interview.

But that seems to have failed to stop this practice, claims Soman, who said AIMPLB has long refused to accept that this should be stopped and in fact, unsuccessfully defended the practice in the Supreme Court that banned instant triple talaq in September 2017.

The government’s move to bring an ordinance or law is also seen by many Muslims as an attempt to interfere with something that has legal sanctity under the Muslim Personal Law (Shariat) Application Act, 1937. “Most Muslims feel the government has no right to interfere with their religion. It’s their personal thing,” said Yasmin Ali Shaikh, a Mumbai-based criminal lawyer.

ALTERNATE METHODS

At the same time, some Muslims are getting around the triple talaq controversy by using talaq-e-rajai, which is not prohibited under law, to end a marriage, said Shaikh. In this form of talaq, she explained, the husband gives one talaq but it operates as final talaq after three months, if the husband and wife don’t cohabit or consummate in between.  

“So there are people who are using these tactics and if the wife wants to come back, they are not taking her back. At the same time, they are taking this protection of one talaq to avoid arrest but actually after three months it operates as final,” said Shaikh, who is currently arguing six cases of talaq-e-rajai in the court.

In such cases, she said they have to seek legal remedy under various other laws related to domestic violence and family maintenance to ensure the husband doesn’t throw his wife out of the house.  

But the Bombay High Court lawyer, who has handled thousands of cases of divorce and family maintenance during the 30 years of her career, admitted that instant triple talaq is a deep-rooted social problem that cannot be solved by passing a law.

“If a relationship goes bad, you cannot force a husband or a wife into staying married. If some law is formulated to prevent triple talaq, then we will have talaq taking place in other forms, just like it happens in other communities where they have to file for a divorce petition,” she said.

The real issue women face is welfare, shelter and maintenance, she added.

The ordinance has also been challenged in court. Advocate Zulfiker Ali P.S. had filed one such writ petition in March before the Supreme Court, challenging the ordinance on various grounds, including that it violates the constitution, interferes with Shariah law and discriminates on the basis of religion.

“The court said you can challenge it when it becomes a law,” Ali said, adding that the court “did not express any opinion on the merit of the case”. 

The lawyer clarified that he is not in favour of instant triple talaq but is against criminalising it. “[Instant triple talaq] can at the most be considered a desertion which, in any other community, is not considered a criminal offence. Then how can you make it a criminal offence for a particular community through an ordinance?”

Ali pointed out that there are enough civil remedies available under various laws that entitle a wife to claim maintenance from her husband.

LAWS BASED ON SHARIAH

Soman agrees that jailing errant husbands may not solve the problem, but adds that every law should have a deterrent. “If you see all the women-centric laws in India – dowry law, bigamy law, even domestic violence law, or child marriage prohibition law – they all have jail terms. Under the bigamy law, there are seven years of punishment if a Hindu man marries another lady while his first wife is still alive,” she said.

Her organisation has been demanding that the Muslim Family Law should be codified based on the Quran. Parliament passed the Hindu Marriage Act in 1955 and also amended the Christian Marriage Act as late as 2000 based on Hindu texts and Canonical arguments, respectively.

“Likewise, Parliament should take all the good gender justice injunctions from the Quran and pass the Muslim Family Law so that Muslim women get legal parity with Hindu and Christian women,” Soman said.

Mumbai-based criminal lawyer Shaikh agrees. “[In] Surat An-Nisa it clearly states that when you are leaving your wife, see that she is well provided for. This includes shelter, clothing and everything.”

According to her, the main problem is that Muslims in India don’t have an agency to see that Quranic laws are implemented properly. 

Shaikh recommends that strict conditions, such as a mehr (maintenance) amount, be included in the nikah nama, or marriage contract. “A law cannot force somebody to love somebody and live with that person for the rest of their life. The only thing the law can do is to secure the future of a person,” she said. The amount of mehr should be fixed in accordance with what the Prophet (PBUH) had set for his daughter, adjusted to reflect current value.

(Reporting by Syed Ameen Kader; Editing by Emmy Abdul Alim emmy.alim@refinitiv.com)

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