Libertatem Magazine

Instant Triple Talaq and Criminalization of it: Stifling the Rights of Individuals

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What instant Triple talaq is to ‘Muslim wives’, criminalization of it is to ‘Muslim husbands’. The former has been sacredly practiced in the name of religion while the latter has been hastily enacted in the name of safeguarding women’s rights. Both are barbarous and inhuman.

How both of them Operates:

Instant Triple Talaq defined as “talaq-e-biddat makes wife stranger to her husband in a second. Triple Talaq Bill turns husband a criminal to his wife in a moment. Both fail to act as an arbitrator in the strained relationship between husband and wife. The civilized world cannot stand to the barbarity inflicted upon individuals either by faith or by the state.

The Quran categorically rejects Instant Triple Talaq. There is not a single verse that validates the notion of triple talaq in one sitting. It sets certain norms to execute divorce, just as there are norms to sanctify marriage. Numerous verses of the Quran such as 4:35, 2:226-227, 2:228, and 65:1-2 validate the argument in this direction.

The Holy book of Islam demands time and patience in executing a divorce. In fact, it leans more toward safeguarding marriage than dissolving it abruptly.

Unfortunately, Muslims in India, particularly the Hanafi sect, don’t follow the Quranic decree over matters of talaq. To them, traditions supersede religion. However, they too consider that ‘instant triple talaq’ known as ‘talaq-e-biddat’ is a sin but they have never been vocal to contain it.

The controversy reached a flashpoint letting government at Centre pass the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Lok Sabha.

Is criminalizing instant triple talaq an answer to protect the rights of a Muslim woman in marriage?

Nowhere in the world, ‘talaq’ in any form is criminalized. Muslim countries where instant triple talaq is banned do not criminalize husbands for the offense. Instead, the utterance of instant triple talaq is deemed null and void. Even in Pakistan, Bangladesh, Indonesia, Malaysia, among 19 countries, the mere pronouncement of talaq-e-biddat neither dissolves the marriage nor is it a cognizable offense.

Arguing that criminalizing triple talaq will act as a deterrent is technically flawed and socially barbaric.

Technically flawed in the sense that the issue of instant triple talaq belongs more to the purview of civil law than to the criminal law. Moreover, there are several provisions in the Indian Penal Code dealing with “offenses relating to marriage”.

Civil law is concerned with disputes between individuals, organizations, or both wherein the wrongdoer compensates the affected one. The criminal law implies the law related to the offenses or crimes committed against the society as a whole.

A husband is not a terrorist. Or uttering a few words (talaq, talaq, talaq) which normally happens in rage or in a state of drunkenness does not amount to the crime committed against society as a whole.

Marital discord is a common occurrence. No couple is ideal. Stef Daniel remarks that marriage is nothing but ‘all about compromise’. In such relationship where differences between husband and wife are every-day-routine affairs and unavoidable, leading sometimes to divorce, should not push the husband to prison. This is morally outrageous and socially barbaric.

There are even examples where a Muslim husband in anger delivers instant triple talaq to his wife, has brought his wife back within hours when he realizes that the utterance was carried out in an inebriated state of mind.

No substantial study before making the action criminal:

If at all ‘instant triple talaq’ is to be criminalized, the state has to substantiate the data if the occurrence of it is widespread among the people affecting society as a whole. But the fact speaks otherwise. The government has not tabled any concrete figures before the Parliament.

According to 2011 census data, the number of deserted Hindu women who live in deplorable conditions far exceeds the number of Muslim divorcees and deserted women.

The numbers are staggering — out of 2.3 million separated and abandoned women, around two million are Hindus, while only 2.8 lakh are Muslims. Yet no attention is paid to them.

Drawing on the 2001 census report, despite the hype, divorce among Muslims is much lower than in the majority community.

If deserting the wife by Hindu husband is not a criminal offence, how can discarding her through instant triple talaq be seen as one, when the impact of both upon victims is similar?

The criminalization of instant triple talaq is nothing to do with the rights of women. The ulterior motive is questionable.

The Misuse of law:

In a society where mere suspicion of possessing beef can cost a Muslim his life, how will this move empower Muslim women within the community? In a charged atmosphere where ‘love jihad’ is orchestrated to target Muslim youths in a relationship, how fair is this Bill to the idea of justice to Muslims?

The Muslim community views it with suspicion and fears the law is a pretext to arrest Muslim men. Ayesha Kidwai, professor of linguistics at Jawaharlal Nehru University, expressed her discontent: “The Bill is intended to fuel a culture of fear, of the state being able to enter your home and be able to incarcerate Muslim men”.

Can a wife be ever accepted once a criminal prosecution against husband is initiated? The Triple Talaq Bill widens the gulf rather than providing the way for reconciliation. It intends to break up the family rather than striving to patch it up.

What about the misuse of law? For any trifling reason, a wife can exploit husband as in the case of dowry harassment which empowers the police to arrest the husband and his relatives without a warrant.

On the whole, both ‘instant triple talaq’ and ‘criminalization of it’ stifle the rights of individuals. Both are unfair to humans. The former is irreligious and un-Islamic while the latter is impulsive and cruel.

The best approach to deal with the crisis is to bring the grievances of instant triple talaq within the Protection of Women from Domestic Violence Act (2005). This is a uniform statute that all women can use to enforce their civil rights, including Muslim women who have been given oral talaq.

At the same time, Muslim Personal Law Board which is becoming out of sync with ground reality day-by-day must pronounce distinctly that the practice of instant triple talaq is un-Islamic, and therefore it is deemed null and void (as practiced among 19 Muslim countries in the world).

Senior advocate, Indira Jaising, remarks: “The moment the magistrate declares the divorce null and void, the woman has the status of a wife and in her capacity as a wife she is entitled to unrestricted access to the resources of the family, she’s entitled to her matrimonial home, she’s entitled to much more than a ‘subsistence allowance’.

The problem over instant triple talaq has aggravated due to the confrontational attitudes of Muslim leaders in general and Muslim Personal Board in particular with the government. Instead of engaging with the government and assuring it of reforms (which are badly needed), the Muslim Personal Law Board chose to remain adamant over the practice of instant triple talaq.

Time has not run out. Let the proposed Bill be sent to a select committee for further deliberations while the Muslim Personal Board takes a step forward to address the issue positively within the community.

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