India – Stop Criminalisation of Triple Talaq – Punitive action not a deterrence

•            There is no rationale to criminalise the practice of talaq-e-biddat. Using penal actions leading to imprisonment to discourage the practice of triple talaq will not help in getting justice for women. When a woman reports a complaint about triple talaq, she wants to continue staying in matrimonial home and draw financial support from her marital home. Imprisoning the husband will deprive her of both, making her and her children even more vulnerable.

•            Since marriage is a civil contract between two adult persons, the procedures to be followed on its breakdown should also be of civil nature. We do not believe in retributive justice, which emphasises punitive measures instead of the ensuring the rights of women. It is essential to think of civil redressal mechanisms and reparative justice to ensure that Muslim women are able to negotiate for their rights both within and outside of marriage.

•            The Bill is limited to triple talaq and is not addressing related issues of polygamy, the practice of halala and other issues of discriminations faced by women in marriage and family.We believe that piecemeal legislations will not address larger issues of subordination of women within patriarchal structures.The penal action to discourage the practice of instant triple talaq is a myopic view as it leaves many other issues of economic and social security of women unaddressed. In addition, in our present conjuncture, the move to imprison Muslim men will add to the prevailing insecurity and alienation of the Muslim community. Family and community members might create undue pressures on the woman not to report against her husband.

•            Criminalisation of instant triple talaq will further stifle the voices of Muslim women instead of offering them avenues for justice. Our effort — as women’s groups and the government — should be to strengthen the negotiating capacities of women bystrengthening their economic and social rights.In any case, if there is a need for criminal intervention e.g.’ in cases of domestic violence, or when triple talaq is construed as violence, in such cases, the aggrieved woman can use the existing provisions of the Protection of Women from Domestic Violence Act, 2005 and Section 498A of the Indian Penal Code. These two legal options for women encompass both criminal and civil provisions.

Appeal for broader consultation on the proposed Bill about tripletalaq

Overtime, social movements have stressed that law/policy making by the government should be developed in the spirit of a democratic, participatory and transparent process with a view to incorporate the lived experiences of the affected sections of society. More recent legislations, like the Protection of Women against Domestic Violence Act, 2005, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Criminal Law (Amendment) Act, 2013 are results of long struggle of the women’s movements. All these laws or amendments were preceded by and benefitted from wide consultations with the civil society and affected sections, where voices and experiences of women and marginalised groups were heard , and legislations formulated accordingly to promote gender equality.

Our appeal to the Members of the Parliament is not to hastily pass this legislation but to reflect on the repercussions of the same, through meaningful consultations with a broad range of stakeholders, particularly with women’s groups.

Underlying Principles: 

As a secular democratic country, all laws in India (whether personal or not) must be tested against the Constitutional mandate. If there is a contradiction, then the principles of equality must prevail. Arbitrariness and discrimination cannot be permitted on the grounds that a particular practice or law is an essential or non-essential part of religion. Since all the Personal Laws are discriminatory against women in varied ways, we must aim to create new laws or amendexisting laws to ensure they are in consonance with the fundamental rights of equality and non-discrimination.In recognition of the fact that gender relations in society are unequal, these lawsmust provide special safeguards to secure the rights of women.

Our demands:

·         Marriage among Muslims is a contract and hence cannot be dissolved in a unilateral manner. There can be no more injustice than to be constantly at the fear of being unilaterally divorced, with no judicial recourse available. We appeal that all the forms of unilateral talaq (including talaq–ahsanand talaq–hasan) should be invalidated as it vests power in the hands of the man, and reinforces unequal relations within the marriage. Accordingly, the matters related to talaqunderthe Muslim Personal Law (Shariat) Application Act, 1937 should not be applicable.

·         Muslim women have the option to approach court for divorce under the Dissolution of Muslim Marriages Act, 1939. This law should be available to men too. There should be legal provisions to deal with the matters of dower and maintenance of the wife, child custody, right to reside in matrimonial home, and other economic obligations.

·         The matrimonial home as the residence of a married woman has to be ensured in law, along with an equitable right of ownership and access to all property belonging to the partners at marriage.

·         In order to discourage the practiceof talaq-e-biddat, we suggest that when a complaint is received against any qazi, religious or social organisation for encouraging, abetting or administering instant triple talaq, their registration should be cancelled.

·         The practice of nikah-halalashould be made a punishable offence. This practice makes the woman vulnerable to all kinds of physical, sexual, emotional and economic abuse, thereby denying them their right to live with dignity and self-respect. Any person who solemnises or acts as a witness to a marriage knowing that it has been contracted as nikah–halala so as to facilitate remarriage with the previous husband should also be punished.

·         The Ministry of Minority Affairs should formulate a scheme to spread awareness about the Supreme Court’s judgment, take cognisance of complaints of its violation and the issues arising out of such matters with appropriate authorities, provide monetary relief and socio-legal aid to women who are affected by the violation of this judgment.