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Islam, Women and Feminism (07 Dec 2017 NewAgeIslam.Com)


Criminalising Triple Talaq: BJP Appears To Be More Interested In Playing Politics than Helping Muslim Women

 

By Tufail Ahmad

Dec, 05 2017

There Is Triple Talaq, And Then There Is The Politics Of Triple Talaq

The first concerns Muslim women's empowerment, the second is the politics – or public relations and propaganda – to drive votes to the Bharatiya Janata Party. In 2017, the BJP figured out that not fielding a Muslim candidate or talking about triple Talaq unites Hindu voters; the leadership is not quite interested in the welfare of Muslims.

The central government has drafted a bill which seeks to imprison a Muslim husband for three years and fine him for using the instant triple Talaq. It has sent the bill to states for their views. In the world's largest democracy, the elected government does not consider it necessary to release the bill for public discussion, nor does it think it useful to consult with women's rights groups on the issue. A clique of ministers can decide the fate of this nation without consultation.

There Are Three Forms Of Triple Talaq: Talaq-e-Ahsan, Talaq-e-Hasan and Talaq-e-Biddat

Talaq-e-Ahsan is the best form of divorce whereby a Muslim husband delivers one Talaq and waits for it to become valid after three months. Talaq-e-Hasan is the second-best form of divorce, authorised by the Quran, whereby a husband delivers one Talaq each month for three months. Both these forms of triple Talaq are valid in India. Talaq-e-Biddat, also known as instant triple Talaq whereby a husband can utter three Talaqs in one sitting, was banned by the Supreme Court on 22 August.

But, the government's entire strategy is focused on Talaq-e-Biddat, which is already banned – not on the other two forms of Talaq, which too are unilaterally delivered by a Muslim husband. Only the Talaq-e-Biddat, the instant triple Talaq, helps galvanise Hindu voters. So, the Modi government speaks on triple Talaq especially at the times of elections. And there are more of them coming soon in Karnataka, Madhya Pradesh and Rajasthan. The draft bill is about the instant triple Talaq, not about the other two types of unilateral divorce. If the BJP were not on the other side of electoral honesty, the bill would have considered all unilateral Talaqs.

Unfortunately, the doors of India's judiciary are closed to the Muslim husband. He cannot go to courts to seek divorce.

So, in the cases of marital breakdown, the Muslim husband is left to either go to Islamic clerics or to draft his own do-it-yourself divorce. Under the Dissolution of Muslim Marriage Act 1939, Muslim women can go to courts in India for divorce. But the Muslim husband has no option but to send a Talaq by letter, email, phone, SMS or other means – all of which are as of now legally valid. If the Modi government was serious about reform, it would draft a Muslim family reforms bill, enabling a Muslim husband to seek divorce in court.

Journalists have asked the government whether the Muslim husband will face simple or rigorous imprisonment. There is no answer. The draft is not open for discussion. It's enough that the prime minister and his cabinet have seen it. To my knowledge, there is no country in which marriage and divorce are part of the criminal justice system. By announcing that the husband will be imprisoned for three years, the government is harassing Muslim husbands for electoral purposes. One can support fines in the cases of civil matters, but one fails to understand how criminalising divorce benefits anyone. Laws on rape are part of criminal law, but they have failed to stem the rise of rapes right in the capital of India where the king's ministers sit and decide, for the party, not for the nation.

There are issues in the implementation of laws. If the Modi government's intention is to treat triple Talaq as a case of domestic violence and thereby punish the husband, India already has laws on this subject. Under India's social ethos, divorce is seen as unacceptable. Therefore, divorced Muslim women are already using both the Domestic Violence Act and the 498A law on dowry harassment to settle scores against husbands. It has been seen that both in the case of Talaq-e-Ahsan and Talaq-e-Hasan, Muslim women have filed 498A cases. Now, instead of addressing the issue at hand, the Modi government wants to bring in another domestic violence law on the instant triple Talaq.

The issue is not the instant triple Talaq. The real issue is that a Muslim husband is barred from seeking divorce through courts. Once this is addressed, the instant triple Talaq, or even a quadruple Talaq, doesn't matter if the same is delivered by a Muslim husband in court after approval from a judge. If the government is not electorally motivated on this issue, it should introduce a Muslim family reform bill which should outlaw all forms of unilateral divorce, Halala, Mehr ('dowry' given to the bride), and address issues such as maintenance to divorced wives and child custody. Or, it can stop playing Hindu-Muslim politics by enacting a Uniform Civil Code. For now, the Modi government is engaged solely in propaganda and electoral politics on the triple Talaq issue.

Tufail Ahmad is a Senior Fellow for Islamism and Counter-Radicalisation Initiative at the Middle East Media Research Institute, Washington DC

Source: firstpost.com/india/criminalising-triple-talaq-modi-govt-is-more-interested-in-playing-politics-than-helping-muslim-women-4242575.html

URL: http://www.newageislam.com/islam,-women-and-feminism/tufail-ahmad/criminalising-triple-talaq--bjp-appears-to-be-more-interested-in-playing-politics-than-helping-muslim-women/d/113485




TOTAL COMMENTS:-   5


  •   Dear Tufail Ahmad,

    If you understand what I have written below,  then, write to the MPs of both Houses on these lines. The present law being introduced, is the most cockeyed law I have ever seen, even from Indian standards. If you want to seek any clarification on each word or sentence, I shall love to give it. Try to find contradictions, vagueness and missing links in the draft and apprise me. My Mail ID is given. None of the shouting brigade has either questioned me or suggested an improvement. Sad state of apathy!

    Manzurul Haque

    09.01.2018

    Muslim Women (Protection of Rights on Marriage) Bill, 2017

     I spoke to our MP on the subject and he asked me to tell him what our objections are. Here I have redrafted the Bill as I feel it should be: Please take up: 

    Govt. Draft above and my suggestions below each section/point. 

     Introduction:

    A BILL to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

    My Objections/suggestions (Manzurul Haque)

    Introduction:

    A BILL to protect the rights of married Muslim women and to prohibit the misuse of Talaq by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

    (Note: Sure enough, Govt of India, does not want to selectively close the option of divorce to a Muslim couple)

     

    Statement of Objects:

    Point 3. In spite of the Supreme Court setting aside talaq-e-biddat, and the assurance of AIMPLB, there have been reports of divorce by way of talaq-e-biddat from different parts of the country. It is seen that setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims. It is, therefore, felt that there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.

    (Note: Too much of  a substandard clerical language really)

     

    My Objections/suggestions (Manzurul Haque) 

    Statement of Objects:

    Point 3. Supreme Court has declared void and illegal, what is popularly known and pracised amongst Indian Muslims as talaq-e-biddat , which in other words means, pronouncing of the word talaq three times in one sitting, by husband, giving finality to the divorce. Since this practice is widely prevalent in India, it is imperative to attach penal provisions to punish the promoters of such practice, be that the husband or his accomplices, in the furtherance of this practice. 

    Point 4. In order to prevent the continued harassment being meted out to the hapless married Muslim women due to talaq-e-biddat, urgent suitable legislation is necessary to give some relief to them.”

    My Objections/suggestions (Manzurul Haque)

    Point 4. (Note: Not needed being  redundant)

    Section 2. In this Act, unless the context otherwise requires,— (a) "electronic form" shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000; (b) " talaq-e-biddat”  or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband; and (c) "Magistrate" means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973, in the area where a married Muslim woman resides. 

     

    My Objections/suggestions (Manzurul Haque)

    Please add this after (a) to (c) of Section 2 (definitions): 

    (d) Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat perid.

     

    (e) Halala: Halala should be understood as that kind of farcical halala, reportedly practiced in India, in which, after the talaq, the wife in question, intentionally contracts a marriage with another person, to premeditatedly seek similar talaq, from that another person she so marries, so that she becomes eligible and available to marry her ex-husband. 

     

    (f) Iddat: The iddat is a time period intervening between pronouncement of   and legal effectiveness of talaq, with certain obligations, during which the divorced wife cannot re-marry with another person. The iddat of a woman, divorced by her husband is three monthly periods, unless she is pregnant in which case the iddat shall last until she gives birth. If the marriage was not consummated  or if she does not menstruate, then in such cases, there is no iddat, and therefore a constructive period of three lunar months shall be deemed as the iddat for effecting reconciliation and reconsideration.  

    For a woman whose husband has died, the `iddah is four lunar months and ten days after the death of the husband, whether or not the marriage was consummated.

    (i) Consent: In the case of a farcical halala taking place, the consent of a woman though given freely for the farcical halala,  under influence of religion, would be legally deemed as obtained under psychological duress and would therefore be treated as  ‘no consent'

     

    Section 3 of the draft legislation reads,

    Any pronouncement of talaq by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.

     

    My Objections/suggestions (Manzurul Haque)

    Section 3. Any pronouncement of talaq, intending to be talaq-e-biddat, by a person upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Any number of pronouncements of the word 'talaq’ shall be counted as one which is the initiation of the process of talaq, to bring the talaq into completion at the end of Iddat period. Before expiry of  iddat-period, the husband shall not disturb or would be compelled to disturb the status quo of residence of wife, custody and residence of children, expenses of household and family members etc, the essential concomitants of a married life;  and the husband shall have to undergo a formal counseling by a committee of two relatives, the proceedings of which shall be duly recorded as a legal document. During this period husband can re-establish relationship , called rujoo, with wife and has a right to do so. After Iddat period, man and woman by mutual consent alone, can perform fresh nikah and any interference in their performing fresh nikah would be deemed as perpetuating and promoting  talaq-e-biddat . This opportunity of nikah with ex-wife, will however seize after the third talaq in the life time of the couple. 

     

    Section 4 of the Bill states;

    "Whoever pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.

     

    My Objections/suggestions (Manzurul Haque)

    Section 4. The impact of this criminal Act is not aimed at the interpersonal conjugal relationship between husband and wife, but on the social space in which the couple is situated, which leads to serious injustices to Muslim women. Therefore, upon utterance of 'Talaq' three times or more, by husband to wife,  if any religious cleric or person, including a  local ‘maulvi’ or ‘maulana’,   is provenly found engaged in advising and or  abetting separation from the wife of the husband, whatever may be the theological position on the question, which has already been divested of any legal persuasion   by the Supreme Court judgment in Shayara Bano v. Union of India & Ors, 2017, then such advising person  shall be punished with three years of imprisonment. If the relatives of the husband have been noticed of talking of halala and been found involved in the disturbing the status quo of the residence of the family etc., then each one of such relatives  should be punished with   one  year of imprisonment . If a person  knowing the facts of the case, actually performed so-called  farcical halala with the ex-wife, irrespective of permission of wife or husband for doing the same,  then the person who did  halala and the maulvi who performed  nikah-e-halala,  shall be punished for ten and five years of imprisonment respectively.

     

    Notwithstanding clause: 

     Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be cognizable and non-bailable within the meaning of the said Code.

    My Objections/suggestions (Manzurul Haque)

    Following observations of the Honorable Supreme Court in similar social criminal legislation could have been incorporated.

    [Supreme Court directed that the state governments to instruct police "not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code. Further, "The magistrate, while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of Section 41 and only after recording its satisfaction, the magistrate will authorize detention," ]

    Available  at manhaq@yahoo.com 


    By Manzurul Haque - 1/8/2018 7:00:41 AM


    By Manzurul Haque - 1/9/2018 7:49:53 AM



  • aah, at last Gulam Mohyuddin.

    You get want you want, a bashing from Tufil Ahmed to BJP.

    Please Tufil Ahmed also write something bashing of RSS next time so he became compelte happy.

    But leave all Indian Muslims irrational and fundamentalist behaviour towards Hindus.This can be only true sign of Indian Muslims, say something and do something.

    By Aayina - 12/9/2017 7:46:57 PM



  • Good to see Tufail Ahmad move away from his usual affinity for the BJP. It is true that the Modi government is playing politics and has no real interest in facilitating the emergence of just and rational laws to replace archaic Muslim laws.


    By Ghulam Mohiyuddin - 12/7/2017 12:25:19 PM



  • iF ANYONE indulged in "jamal dissolution of Muslim Marriage" the persons concerned should be punished.What is wrong in it ? Legislation must possess teeth.Else it is no legislation at all.
    By dr.A.Anburaj - 12/7/2017 2:39:33 AM



  • I have no access to the draft legislation regarding triple talak.
    "The real issue is that a Muslim husband is barred from seeking divorce through courts". I am thinking that the Government is going to ban "out of court dissolution" of Muslim Marriage.All divorces shall be granted by Judiciary only irrespective of religion.That is the best thing .


    By dr.A.Anburaj - 12/7/2017 2:36:15 AM



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