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
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!
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
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)
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)
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.”
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.
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
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
(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.
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.
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 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.
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
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By Manzurul Haque -
1/8/2018 7:00:41 AM