Why feminists are opposing triple talaq Bill

Prem Chowdhry
Author and ex-academic, Delhi University

The demand for doing away with triple talaq has been raised by women across India over the past 30 years in the wake of the Shah Bano case. The Bharatiya Muslim Mahila Andolan, in its 2010 survey of 4,710 Muslim women in 10 states, had found that 88 per cent of them wanted a ban on instant divorce.

Interestingly, feminists are opposing the Bill in this regard. Why is the abolition of triple talaq, which has been the cornerstone of their demands for a long time, being opposed so vehemently by them? This is especially glaring as there has never been any ambiguity in the women’s movement in India on the stand that triple talaq must go. The objections, rooted in reality, should be taken cognisance of by the lawmakers.

On August 22, 2017, the Supreme Court struck down the practice of talaq-e-biddat and made it unlawful for a Muslim man to pronounce talaq three times in one sitting, and if he does so, it will not be recognised by the law. In effect, the marriage will continue to be legally valid. This judgment not only provided relief to women, but also opened up the possibilities of challenging all Personal Laws that discriminate against them. Clearly, this judgment was a milestone in the direction of ensuring gender equality in marital and familial relations.

One of the lacunae in the judgment was that the five Judges of the Constitutional Bench did not provide guidelines for safeguarding women if the practice continued despite their verdict. A minority of two Judges put the onus on Parliament to formulate a law banning triple talaq. The question arises: does not a court judgment have the same force as the law? 

The government acted with alacrity. The issue is being used by the BJP-led dispensation to project itself as the messiah of Muslim women and bring in a Bill which goes beyond what the judgment stated. It first brought in the Muslim Women (Protection of Rights on Marriage) Ordinance on September 19, 2018, which criminalised the pronouncement of triple talaq (or talaq-e-biddat) with punishment of up to three years’ imprisonment and with fine. In December 2018, a Bill was passed by the Lok Sabha and sent to the Rajya Sabha. In the Upper House, it faced a united Opposition which declared that the Bill must be sent to the select committee.

Civil contract

According to the feminists, if this Bill is passed, it would make Muslim women more vulnerable to violence and harm their economic, household and social security. Since Muslim marriage is a civil contract between two adults, the procedure to be followed on its collapse should also be of a civil nature. There is no rationale to criminalise the practice of talaq-e-biddat and imprison the Muslim man. If this law is passed, it would criminalise the husband, who would be incarcerated. Incarceration would lead to unwanted separation between the couple, against the wishes of the wife who wants a reconciliation, not a break-up.

Issues unaddressed

This penal action to discourage the practice of instant triple talaq leaves the issues of economic and social security of women unaddressed. Holding the woman responsible for her husband being in jail, family members are likely to adopt a hostile attitude and kick her out of her matrimonial home. 

The provisions of the Domestic Violence Act, 2005, are hardly applicable, as for that she has to approach the police. Most women are reluctant to do so and press criminal charges. The lawyer’s fees and other litigation expenses are crippling. The woman, in fact, would like to stay on in her marital home and draw financial support. If the husband is put behind bars, he will be unable to pay maintenance and contribute to raising their children for three years, thus depriving the wife and her offspring of financial security. Criminalising the pronouncement of triple talaq weakens rather than strengthens the negotiating capacity of women. Moreover, the judgment mentioned has only struck down talaq-e-biddat (instant triple talaq) and not talaq-e-ahsan (talaq over a period of three months). The latter is also unilateral, but the intervening period offers the possibility of a reconciliation.

Subsistence allowance

What is the way out? Women at the receiving end of talaq need help. They should be provided economic and socio-legal support. No such support is extended by the government to women before or after talaq. The Bill does talk about providing subsistence allowance for the aggrieved Muslim woman, but this allowance is not defined and is open to interpretation. Indian feminists recommend that regardless of religion, the dissolution of marriage should be through the court only. A Muslim man should move court if he wants to divorce his wife. 

In practice, Muslim women continue to be at the receiving end of instant triple talaq. There is a dire need to spread awareness of this issue among men and women. Unilateral divorce, sometimes given on the phone, through a text message or email, has become increasingly frequent, leaving women on the short end of the stick — with the qazis supporting men, not women. The custom is already banned in Muslim-majority countries such as Saudi Arabia, Morocco, Afghanistan and Pakistan.