Alternative Voices, Triple Talaq Law and the Question of Reform

Amidst all these debates and controversies, the voices of groups who were demanding a comprehensive and systematic mechanism against oppressive practices were either ignored completely or reduced to the pro- or anti-triple talaq camps.

For instance, the Bhartiya Muslim Mahila Andolan (BMMA), a progressive Muslim women’s organisation, a group which has been working for the rights of Muslim women for more than ten years, put forward the case for banning triple talaq. The organisation conducted an extensive survey in 2015 in this regard. It collected testimonies of a number of women who have been the victim of talaq al-bid’ah. The report published by BMMA, entitled No More Talaq Talaq Talaq: Muslim Women Call for Ban on an Un-Islamic Practice, argues that over 92 per cent of Muslim women in India are not in favour of the practice of instant triple talaq.⁵⁹ Discussing the 117 specific cases of the victims of triple talaq, the report suggests that triple talaq is actually used by Muslim men as a legitimate religious weapon to subjugate women. The report finds that in almost all cases a selective anti-women interpretation of Quran is employed by Muslim men and the clergy to legitimise a number of socialcultural issues like dowry demands, not giving birth to a male child and husband’s affair with another woman as some of the main reasons behind divorce. Instant talaq, in this sense, turned out to be a talwar (sword) hanging onto women’s throats who are in an abusive marital relationship. The report called for a ban on triple talaq and suggested bringing MPL into the legal framework in order to initiate a process of Islamic reform. The report asserted that unlike other religious minorities, ‘Muslim orthodoxy signified in the self-appointed personal law body... is resistant to any reform within the agreed framework.’⁶⁰ The BMMA criticised the AIMPLB for perpetuating dated, inaccurate and patriarchal interpretations of the Islamic texts, claiming that triple talaq is not mentioned in the Quran, thus, it is completely un-Islamic.

The BMMA was very active in the Shayara Bano case. The organisation, however, has a very different view on the question of UCC. It demands a gender- just Muslim Personal Law and opposes the UCC. This position not only goes against the established binary between MPL and UCC but also provides a different vantage point to look at the question of TTA.

The BMMA welcomed TTB, arguing that criminal measures alone can restrict the practice of triple talaq.⁶¹ However, they did not agree with all the clauses of the TTB completely. BMMA’s Zakia Soman and Noorjehan Safia Niaz sent a letter to Prime Minister Modi, the opposition leaders, the Law Ministry and to the Ministry of Women and Child Development, outlining their reservations of TTB. They made a few very specific suggestions. Supporting the criminalisation of TT for the effective implementation of the law, the BMMA suggested that the imprisonment term for the husband should be reduced from three years (as proposed in the Bill) to one year. In any case, uttering triple talaq must be treated as a bailable and compoundable offence. In such instances, the wife’s appeal must be given priority in order to reduce possibilities of a misuse of the bill. This letter also argued that if even after exhausting all options, the husband is adamant about giving his wife triple talaq, a possibility of imposing a fine must also be explored. Keeping the financial aspect involved in a legal case in mind, this draft letter also suggested that there should have an option of using alternate arbitration mechanism within the community structures to make the process more economical. Most importantly, BMMA demanded that the bill should go through a proper scrutiny before it goes to the Select Committee of the Parliament.⁶² However, none of these concerns were taken up seriously. The government completely ignored the need for progressive reform and reduced these efforts to its own anti-Muslim electoral agenda. On 29 December 2017, the government passed the contentious bill, which criminalised instant triple talaq and made it a punishable nonbailable offence with three year’s imprisonment.

It is worth noting that the BMMA opposes triple talaq on religious, social and cultural grounds, but it is clearly not in favour of the UCC. It argues that personal laws are Fundamental Rights of religious minorities which should not be abolished but be brought into legal framework. The organisation insisted on the need for a comprehensive review of the MPL. It wrote a public letter to the Ministry of Minority Affaires to make their point heard. The letter urged the government to ‘pass a Muslim family law to uphold gender justice and gender equality for Muslim women’ apart from the triple talaq law with a constructive and positive interven- tion.⁶³ The organisation informed the government that it had prepared a blueprint of a revised gender-just Muslim family law, after years of consultation with Muslim women, lawyers, scholars and community leaders. This draft MPL, it was argued, is based on Quranic tenets concerning the age of marriage, mehr, talaq, polygamy, maintenance, custody of children etc. it follows the spirit of the constitution. The letter stated: ‘Justice for Indian Muslim women can be enabled either through amendments to the Shariat Application Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 or a completely new enactment of Muslim personal law.’⁶⁴ Invoking the centrality of the gender question, it is stridently argued:

Muslim orthodoxy in India does not want to entertain any talk of personal law reform and the Hindu right is pushing for the Uniform Civil Code (UCC). The truth is both these sections are coming from extreme points- of-view and both are equally patriarchal.⁶⁵

The Bebaak Collective, a prominent women’s campaign led by social activist Hasina Khan and a petitioner in Shayara Bano case, also made a very similar argument.⁶⁶ The Collective issued a statement in solidarity for abolition of triple talaq while at the same time accusing the right-wing government of appropriating the cause under the pretension of ‘rescuing’ Muslim women from their medieval laws.

The statement clarified: ‘We do not want our living realities or struggles to be subsumed by any force in the name of rescuing, which works in absolute continuum with the despotic paternalism of majoritarian power.’⁶⁷ The collective became critical of the TTB/TTA citing the same reasons. It signed a petition, along with many other activists, in July 2019 condemning the law especially on the matter of criminalisation. The Collective called the Act ‘not pro-women but anti-minority’. It argues that rather than empowering women, this law will make them vulnerable in other ways. The imprisonment of former husbands could lead to the non-payment of post-divorce maintenance for wives and children, and could leave women at the mercy of hostile, vengeful matrimonial families.⁶⁸

The Law Commission of India also clarified the legal-constitutional position of family laws in general, and MPL in particular in its report. The Commission argued: ‘the best way forward may be to preserve the diversity of personal laws but, at the same time, ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India.’ It further clarified, ‘a uniform civil code ... is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.’⁶⁹ Most importantly, the Commission highlighted the need to discuss implications of the law on families, particularly women and children, and remedies — structural gradual changes in family laws in general and Muslim Personal Law in particular — and the constitutional integrity of such structural changes.

The government, however, passed The Muslim Women (Protection of Rights on Marriage) Act in July 2019. The Act, popularly known as Triple Talaq Act (TTA) has invalidated the practice of instant triple talaq in any form and made it a criminal and punishable offence.

According to Section 3 of the Act, ‘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.’⁷⁰ The same provision states further that, ‘whoever pronounces Triple Talaq upon his wife shall be punished with imprisonment for a term which may extend to three years and fine.’⁷¹ Extending the jurisdiction of the criminalisation of instant talaq, the law makes the act a non-bail- able and cognisable offence, making it a condition based only on reasonable grounds. A cognisable offence is one under which the offender can be arrested without a warrant. The Section 7 (c) explains, ‘No person accused of an offence punishable under Triple Talaq law shall be released on bail after the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq was pronounced, is convinced that there are reasonable grounds for granting bail to the accused.’⁷² The law has also entitled the Muslim woman to demand maintenance for herself and her dependent children. She could also demand for the custody of minor children under the provisions of this Act.

The criminalisation of instant triple talaq is undoubtedly a step forward against the unjust practices carried out in the name of family laws and undefined religious sanctions. However, the Act completely ignored the voices of Muslim women in rationalising the provisions of the Act and critically examining the implications of criminalisation on families.

These concerns were not only overlooked by political opponents but were also disregarded by the media. The opposition focused either on decriminalisation to ensure the safety ofMuslim men or maintained their position on the Fundamental Rights of Muslims as a religious minority. Media, on the other hand, also quite successfully created a condition where there were conflicts, but no space for discussing grey areas.

One either has to accept the triple talaq law to sound nationalist and/or to stand against it and take the blame for being anti-national. The debate and its management by media, in this sense, merely contributed to the larger antiMuslim discourse, which is derogatory and stereotypical. Furthermore, commu- nalisation of triple talaq, MPL and the UCC has diluted the spirit of the issue of gender justice and eventually re-established a patriarchal anxiety: Whose women are more marginalised? Men of which community get what advantages in managing their women?

In this media-driven popular discourse, the existence of Muslim women as an agency — decisive and informed decision makers — is completely missing. For Muslim women, this condition has created a dilemma to either be morally and politically obliged to assert their Muslim identity and reject the law in total or to rejoice in it while bearing the blame of the destruction of families and fall into the perceived trap against Muslims in India.

Notes

1 Talaq al-bid’ah is the Arabic name of the practice of instant triple talaq. Triple talaq refers to a practice which empowers a man to divorce his wife by saying, talaq, talaq, talaq in one go.

2 Foucault, Michel, The Archaeology of Knowledge and the Discourse on Language, trans A. M. Sheridan Smith (New York, NY: Pantheon, 1972).

3 Lessa, lara, “Discursive Struggles within Social Welfare: Restaging Teen Motherhood.” British Journal of Social Work 36, no. 2 (2006): 283—298.

4 O’Keeffe, Anne, Media and Discourse Analysis in The Routledge Book of Discourse Analysis, ed. James Paul Gee, Michael Handford (London: Routledge, 2012), 543-557.

5 For TRP rating of news channels in India visit: www.barcindia.co.in; https://the- print.in/india/4-news-channels-claimed-to-be-no-1-in-election-results-week-and- no-ones-wrong/249411/

6 For reports on hate mongering and anti-Muslim propaganda by these news chan

nels visit: Gulf News, https://gulfnews.com/world/asia/india/how-indian-news- channels-are-peddling-hatred-against-muslims-on-primetime-tv-1.67265166; A

report on fake news stories, https://scroll.in/article/863542/darkness-in-jama- masjid-conversion-rate-card-and-10-more-fake-news-stories-spread-by- media-in-2017; Report on hate mongering against Muslims, https://theprint.in/ opinion/indian-media-waging-holy-war-against-muslims-hyenas/400407/; and

story against Sudhir Chowdhry’s on Jihad, https://www.thequint.com/neon/ sudhir-chaudhary-jihad-chart-islamophobia

7 Menon, Nivedita, “A Uniform Civil Code in India: the State of the Debate in 2014.” Feminist Studies 40, no. 2 (summer 2014) 480+. Gale Academic OneFile, accessed September 27, 2021, link.gale.com/apps/doc/A379570485/AONE?u=anon~646c4c4 &sid=googleScholar&xid=4a211921

8 In fact, the state reduced the spirit of women’s liberation to family welfare schemes where women were granted subsidies merely as wives, sisters, mothers and widows. The question of their participation in the development sector and politics, which was the spirit of the national movement, was relegated to margin. For a detailed discussion see: Chaudhuri, Maitrayee, “Gender in the Making of the Indian Nation-State,” Sociological Bulletin 48, no. 1/2 (March-September 1999), 113—133.

Menon, Nivedita, “Women and Citizenship,” in Wages of Freedom: Fifty Years of Indian Nation State, ed. Partha Chatterjee (New Delhi: OUP, 1998), 241—266.

Despite the Rajasthan High Court’s directives to the state government to prevent the celebration of ‘Chunari festival’ in Roop Kanwar’s honour, it was celebrated with about two lakh people along with many leading politicians assembled at the sati- sthal (site of the self-immolation). The women of the Rani Sewa Sangha, a voluntary social movement to preserve India’s ‘ancient traditions’ dressed as brides also marched through the streets of Chandni Chowk in Delhi to commemorate ‘the historic act of self-immolation’. For details see: Bhasin, Kamla and Ritu Menon, 1988. “The problem,” Seminar, 342, February: 12—13.

Nivedita Menon, “It’s Not About Women,” The Hindu, 15 July 2016, https://www. thehindu.com/opinion/lead/It-isn’t-about-women/article14488767.ece

Menon, “Women and Citizenship,” 252.

Chaudhuri, Maitrayee, “Gender in the Making of the Indian Nation-State,” Sociological Bulletin 48, no. 1/2 (March-September 1999), 113—133.

Menon, “Women and Citizenship,” 254.

Ibid, 261.

For a detailed discussion on this point, Ibid, 262.

For an updated version of debates and ideological shifts in the women’s movement see: Menon, Nivedita, “A Uniform Civil Code in India: The State of the Debate in 2014,” Feminist Studies 40, no. 2, Special Issue: Food and Ecology (2014), 484 (480—486). Menon, “A Uniform Civil Code in India,” 485. For a detailed discussion on the nature of a liberal state which intrinsically depends on market economy and patriarchal family structures in terms of property rights see: Chaudhuri, Maitrayee, “Gender in the Making of the Indian Nation-State,” 116—119.

Menon, “Women and Citizenship,” 266.

The Hindu Code Bill was passed by the Parliament in 1956, which while excluding non-Hindus from the ambit of the reform, brought in four separate Acts: the H i ndu Marriage Act, the Hindu Succession Act, M inority and Guardianship Act and the Adoptions and Maintenance Act. Although the reforms were merely a way of codification of Hindu laws and a way of imposing homogenization, it unfolded a way forward. For a critical review see: Madhu Kishwar, “Codified Hindu Law: Myth and Reality,” Economic and Political Weekly 29, no. 33 (13 August 1994), 2145—2161.

Iddat is a period of time (approximately three to four months) in which a divorced woman or widow cannot remarry.

Bhargava, Rajeev, “How to Rescue Genuine Secularism,” The Hindu (2019) https://www.thehindu.com/opinion/lead/how-to-rescue-genuine-secularism/arti- cle27267143.ece

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 that recognizes talaq al-bid’ah (instant triple-talaq) as a valid form of divorce and justifies the practice of nikah halala and polygamy; and the Dissolution of Muslim Marriages Act, 1939 that does not provide enough protection to Muslim women from bigamy.

Nikah-halal is a process following which a divorced husband and wife can remarry each other. Once divorce happens, the husband is not permitted to remarry his wife unless the woman undergoes nikah halala. It involves her marriage with another man who subsequently divorces her so that her previous husband can remarry her.

See: Order XXXVIII, S.C.R, 2013, under article 32 of the Constitution of India, Writ Petition (Civil) 2016.

For statement of Narendra Modi on TTB, visit: https://www.livemint.com/politics/ policy/historical-wrong-done-to-muslim-women-corrected-pm-modi-on-triple- talaq-bill-1564497792024.html.

For Independence Day Speech by PM Narendra Modi, visit:https://www.naren- dramodi.in/hi/text-of-prime-minister-shri-narendra-modi-s-address-to-the-na- tion-from-the-ramparts-of-the-red-fort-on-the-73rd-independence-day-546008 Different schools ofjurisprudence: Hanafi, Maliki, Shafi'i, Hanbali.

For a report on the practice of triple talaq amongst Muslims, visit: https://www.thehindu. com/news/national/other-states/spurt-in-instant-triple-talaq-cases-in-up-experts- question-efficacy-of-newlaw/article29163612.ece#:~:text=In%20Hapur%2C%20 a%20woman%20was,%E2%82%B930%20to%20buy%20medicines.&text=In%20 Etah%2C%20Aamir%20allegedly%20said,of%20a%20domestic%20violence%20case

Soman, Zakia, Niaz, Noorjehan Safia, “No More Talaq Talaq Talaq: Muslim Women Call for a ban on an UnIslamic Practice,” BMMA, 2015, 2017.

Ibid., 25.

For Amit Shah’s statement, visit: https://www.thehindu.com/news/national/sc- verdict-on-triple-talaq-reactions/article19538964.ece

The party accepted New India as its political resolution in 2018. According to the resolution, this New India will be free from hunger, homelessness and joblessness; this will be an India — united, strong, prosperous and confident. It will be free corruption, terrorism, casteism and sectarianism. See http://www.kamalsandesh.org/ pm-narendra-modi-leading-develop-new-india/

For citizen’s pledge, visit: https://www.narendramodi.in/newindia/index

For citizen’s pledge, https://www.narendramodi.in/newindia/index

Rajya Sabha Debate (RSD), 30 September 2019, Visit: http://164.100.47.7/new debate/249/30072019/Fullday.pdf Also see https://www.hindustantimes.com/india- news/triple-talaq-bill-not-about-religion-ravi-shankar-prasad/story-FHOYJmD T37AK7TyLNsSy9H.html

https://economictimes.indiatimes.com/news/politics-and-nation/planning-triple- talaq-courts-for-speedy-justice-ravi-shankar-prasad/articleshow/70492122.cms

Rajya Sabha Debate (RSD), 30 September 2019, http://164.100.47Z7/newdebate/249/ 30072019/Fullday.pdf

For BJP Election Manifesto 2019, https://timesofindia.indiatimes.com/realtime/BJP_ Election_2019_english.pdf

For TRP rating of news channels in India visit: www.barcindia.co.in; For report on the popularity of these channels during elections visit: https://theprint.in/india/4-news-chan- nels-claimed-to-be-no-1-in-election-results-week-and-no-ones-wrong/249411/ “DNA Analysis of Triple Talaq Bill,” Zee News, https://zeenews.india.com/video/ india/dna-analysis-of-triple-talaq-bill-passes-in-rajya-sabha-2223438.html

“Fatah Ka Fatva,” Zee News, https://zeenews.india.com/tags/fateh-ka-fatwa.html; “Why Did Congress-Owaisi Try Blocking the Triple Talaq Bill,” Republic TV, https:// www.republicworld.com/the-debate/193/376/why-did-cong-owaisi-try-blocking- the-triple-talaq-bill.html; “Aaj Tak Speaks To Triple Talaq Victims; PM Modi Shares His Concern,” Aaj Tak, https://www.youtube.com/watch?v=tnlg9v4_j08&t=11s

“DNA Analysis of Triple Talaq Bill,” Zee News, https://zeenews.india.com/video/india/ dna-analysis-of-triple-talaq-bill-passes-in-rajya-sabha-2223438.html; “Modi Government

EndsTripleTalaq, RepublicTV, https://www.republicworld.com/the-debate/1198/3235/ modi-government-ends-triple-talaq.html; “Muslim Women Modi”’ Triple

Talaq '+I'+^,'^,'/?.^cliT|y, https://www.youtube.com/watch?v=rHi40MHArWg; “Triple Talaq ke jawab Mein Triple Modi,” Aaj Tak, https://aajtak.intoday.in/story/triple-talaq- bill-passed-by-rajya-sabha-bjp-tweet-no-more-talaq-talaq-talaq-1-1106326.html “DNA Analysis of Triple Talaq Bill,” Zee News, https://zeenews.india.com/video/ india/dna-analysis-of-triple-talaq-bill-passes-in-rajya-sabha-2223438.html

“Triple Talaq ^TTT^, vV^wtfTwVTtj Asaduddin Owaisi Sudhanshu

Trivedi V T T,” Aaj Tak, https://www.youtube.com/watch?v=Ot5aJyLiGHk

https://economictimes.indiatimes.com/news/politics-and-nation/sc-commences- hearing-on-pleas-challenging-abrogation-of-article-370/articleshow/72454345. cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

Lok Sabha Debate on Triple Talaq Bill, 25 September 2019, Visit http://loksabhadocs. nic.in/debatestextmk/17/I/25.7.2019.pdf, p. 276, 305, 307.

He twitted, “Triple Talaq Bill Should Be Seen only as One Part of Many Attacks on Muslim Identity & Citizenship since 2014,” In the similar vein, Congress spokesperson, Ghulam Nabi Azad also stated, ‘the Bill is for protection of rights on marriage but the real motive is the destruction of families.... It feeds into the larger communal agenda of the BJP.’ See: Rajya Sabha Debate (RSD), 30 September 2019, Visit http://164.100.47.7/newdebate/249/30072019/Fullday.pdf; Jamat-e-Islami Hind’s Ameer, Syed Sadatullah Hussain, also criticized the criminalization of a civil contract, which he said is against the Quran, the Sharia and the Constitution of India. The JUH also stated that the MPL ‘flows from the Quran’ and therefore it cannot be scrutinised by the Supreme Court.The AIMPLB also criticized the Bill all together.

The practice of triple talaq is banned in twenty countries, including Saudi Arabia, Bangladesh, Pakistan, Malaysia, Algeria, Jordan, Iraq, Brunei, the United Arab Emirates, Indonesia, Kuwait and Morocco.

For reports on triple talaq cases after the SC judgement, https://www.indiatoday.in/ india/story/up-woman-claims-husband-gave-her-triple-talaq-over-phone-1592150- 2019-08-27; and https://www.shethepeople.tv/news/bmma-criminalisation-triple-talaq/ Lok Sabha Debate on Triple Talaq Bill, 25 Septemer 2019, http://loksabhadocs.nic. in/debatestextmk/17/I/25.7.2019.pdf, p. 276, 305, 307.

Rajya Sabha Debate (RSD), 30 September 2019, http://164.100.47.7/newdebate/ 249/30072019/Fullday.pdf

Statement of women’s wing of AIMPLB, https://www.newindianexpress.com/ nation/2018/mar/31/muslim-women-protest-against-triple-talaq-bill-in-mumbai- calls-it-defective-and-legally-flawed-1795308.html

For text of the petition filed by the Jamiat Ulama-i-Hind before Supreme Court against TTA, https://theleaflet.in/jamiat-ulama-i-hind-moves-supreme-court-challenging- criminalisation-of-instant-triple-talaq/#:~:text=In%20its%20petition%2C%20 JamiatUlama%2DI,Court%20in%20Shayara%20Bano%20v

Rajya Sabha Debate (RSD), 30 September 2019, http://164.100.47.7/newde- bate/249/30072019/Fullday.pdf

“Zero Hour: Heated Debate on Abolition ofthe Practice ofTriple Talaq,” Aaaj Tak, https:// www.youtube.com/watch?v=pvR7DVOnUu0; “Should Triple Talaq Brigade Apologize?,” Republic TV, https://www.youtube.com/watch?v=6wJl-UhvEHU; “Exclusive: Meet The Women Behind The Triple Talaq Fight — Part 1,” Aaj Tak, https://www.youtube. com/watch?v=G3IUZUHalxo; ‘Muslim Women’s Voices Watch Aaj Tak Speak To Victims Of Triple Talaq- Part II,’ Aaj Tak, https://www.youtube.com/watch?v=42 NGmpJ41dM&t=11s

Republic TV, https://www.youtube.com/watch?v=6wJl-UhvEHU; “Exclusive: Meet The Women Behind The Triple Talaq Fight - Part 1.

Soman, Zakia, Niaz, Noorjehan Safia, “No More Talaq Talaq Talaq: Muslim Women Call for a ban on an UnIslamic Practice,” BMMA, 2015. (2017)

Ibid., 25.

For text of demands by BMMA, https://www.shethepeople.tv/news/bmma- criminalisation-triple-talaq/

“BMMA Reiterates Demand for Law...,” https://thewire.in/law/bmma-

reiterates-demand-for-law-against-triple-talaq-halala-polygamy

“BMMA Reiterates Demand for Law.,” https://thewire.in/law/bmma-reiterates- demand-for-law-against-triple-talaq-halala-polygamy

Ibid., 24.

For Bebak Collective, https://feminisminindia.com/2017/05/30/interview-bebaak- collective/

For text of the statement, https://thewire.in/rights/bebaak-ucc-triple-talaq

For a critic of TTA from Bebak Collective, https://qz.com/india/1709560/will- criminalising-triple-talaq-help-indias-muslim-women/

For Law Commissions statement, https://www.theweek.in/news/india/2018/08/31/ uniform-civil-code-necessary-now-law-commission.html

The Muslim Women (Protection of Rights on Marriage) Act, (2019) http://legisla- tive.gov.in/sites/default/files/A2019-20.pdf, p. 2.

Ibid., 2.

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Source: Ahmed Hilal, Mishra R.K.. Rethinking Muslim Personal Law: Issues, Debates and Reforms. Routledge India,2022. — 187 p.. 2022

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