Implementing the triple talaq judgement: A vicious ploy of the BJP government to criminalise Muslim men

The BJP government has announced its plan to legislate on the practice of instant triple talaq and to make it a criminal offence. We dreaded this moment, and we shall speak up. Although we knew that the incarceration of Muslim men was the implicit agenda of the BJP government, we did not anticipate this move so quickly and in such an unabashed manner.

While women’s groups are demanding for the rights of Muslim women and looking for civil redress mechanisms, the BJP government is hell-bent on appropriating the rightful claims of Muslim women for its exclusionary and polarising agenda.

On 22nd August, the Hon’ble Supreme Court of India struck down the practice of talaq-e-biddat. According to this judgment, it is 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 continues to be legally recognised. This judgement

not only provides relief to individual women, but it also opens up the possibilities to challenge all the Personal laws, which are discriminatory against women. Hence, this judgment is a milestone in the direction of ensuring gender equality in marital and familial relations.

In the particular case of Muslim women, who are still at the receiving end of instantaneous

triple talaq, much needs to be done, not the least to spread awareness about

the judgement itself among Muslim men and women.

Bebaak Collective — as one of the interveners in the Supreme Court, along with several women’s groups working at the grassroots level with the Muslim community —approached the Ministry of Minority Affairs in New Delhi, as well the State Women’s Commission in Mumbai, to proactively allocate budgets and take initiatives to ensure the implementation of the judgement. We urged them to provide monetary relief and

socio-legal aid to women who are affected by the violation of this judgment. In our meeting with Mr Mukhtar Abbas Naqvi, the Minister of Minority Affairs and other officials, we reiterated in no uncertain terms that we — as women’s groups working to ensure the rights of women and marginalised groups — do not believe in

retributive justice. We do not seek criminal proceedings against Muslim men who continue to exercise the prerogative of unilateral decision-making to end the marriage.

It is essential to think of civil redress mechanisms and restorative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of the marriage. Since marriage is a civil contract, the procedures to be followed on its breakdown should also be of civil nature. There are several recommendations in this direction.

First, the Dissolution of Muslim Marriages Act, 1939 should be made gender neutral. Even a Muslim man should go to the court if he wants to divorce his wife. This is important because the judgement mentioned above has only struck down talaq-e-biddat (instant triple talaq) and not talaq-e-ahsan (talaq over a period of three months), while the latter is also unilateral with some possibility of reconciliation.

Second, the provisions of the Domestic Violence Act, 2005 should be applied, even after the Muslim woman has been given talaq instantly, if she is facing any form of domestic violence or ousted from her matrimonial home, and approaches the police station.

One of the shortcomings of the judgement itself was that the five-judges of the Constitutional bench did not provide any guidelines for the safeguard of women if the practice continued.  A minority of 2 judges passed the buck to the Parliament to formulate a law concerning the practice of triple talaq. This is now being used by the BJP government to criminalise Muslim men. We resist this ploy to incarcerate Muslim men, while the  government projects itself as the messiah of Muslim women.

The question to ask is: what has the government, both at the national and state levels, done to ensure the implementation of the Supreme Court’s judgment in the past three months? What proactive measures have been taken to discourage the practice of instant divorce and what safeguards are created for Muslim women who still struggle to receive maintenance and exercise their right to stay in their matrimonial house? If the Parliament passes the law, criminalising the practice of instant triple talaq, it is going to affect Muslim women adversely. We resist this government’s vicious ploy to appropriate Muslim women’s struggles for their electoral gains and exclusionary politics.

— Bebaak Collective

Voice of the fearless