In 1937, in the Act to protect personal laws, it was stated that ‘Muslim Woman Organizations condemned the customary law’ stating that they were ‘disgraceful’ and demanded that the Shariat lawl be made applicable to make their life better by acknowledging the right of Muslim woman to have properties, right to divorce, right to inheritance etc. Now the Bill proposes to ‘liberate Indian Muslim Women from age old practice of capricious and whimsical method of divorce’. This change of statement is due to change of time. Muslims at large in the country need to realize this fact of changed time. In fact the government also wants Muslims of this country to realize this changed scenario.
The Government also wants Muslims to understand Islam from those Muslims who told how the fear factor works in the politics of India. One of the Ministers for External Affairs, who once wrote about ‘fear’ saying that ‘The Communalists…..told the Muslims that the Hindus would destroy their Mosques, the Laws, their way of life by sheer weight of numbers and the help of a partial administration’ was brought to Lok Sabha, to speak on legislation of Home Ministry to make Muslims realize that those who are raising voice against the proposed law are not the representative of Muslims. If he had voice on the issues of criminal matters, he never spoke about murders taking place all over the country in the name of cow protection and Love Jihad. In his own area of foreign affairs, he preferred not to speak about recent Jerusalem controversy. However, he did not forget to assert how bad Muslims were.
Considering the number of huge population of Muslims in the country and their social and educational backwardness, still the effect of Triple Talaq legislation may not attract many. Despite no statutory regulation of Talaq, all surveys suggest that the ratio Talaq amongst Muslims are least in India, if compared with statutorily regulated divorces. Even otherwise, all the Muslims in the country do not follow the School where three Talaqs pronounced in one sitting could become effective. Hence the effect of the present legislation shall not touch the followers of non- Hanafi Sunnis and Shias in the country. However, it is a matter of deep concern for the activists, academia, scholars and religious groups in the country, and rightly so, firstly, as to whether this legislation was required at all and secondly, the whether the government is not reflecting its prejudice and vengeance against the those, largely Hanafis in the country, who have not yet voted in their favour.
Section 3 of the Bill declares utterance of three Talaq pronounced in one sitting as void and illegal and consequence of this utterance of a non legal and ineffective action is set out in Section 4 attracting serious criminal charges leading to imprisonment of 3 years. Section 5 talks of subsistence allowance and Section 6 provides for custody of the minor children in favour of the mother.
The question is, when human behavior could lead to criminalization? The debate is as to whether for the non legal, non effective, not binding act, utterance without force can be declared a serious criminal offence? Whether the Criminal jurisprudence permits all non-consequential, non-effective utterances to be criminalized? After the Supreme Court Judgment on Triple Talaq, unregulated behavior of Muslim male uttering three words, will not change marital status of parties, the wife shall still remains his wife. The utterance shall only fall in the category of immoral act in the realm of private morality in domestic relationship. It is not serious enough to disturb the public order and decency. It is part of private life of a citizen in the family and does not seek to enforce particular pattern of human behavior in public life and hence cannot have criminal ingredient in it.
Mostly, Indian legislative process has followed certain procedure. Firstly, outside the Parliament by consulting with the stake holders, affected parties, scholars etc and then inside the Parliament by referring it to Select Committees, Standing Committees etc for deliberations. Here, five members of cabinet drew up the legislation. It was placed before the Lok Sabha in the afternoon and after short debate on it by the members, it went to voting in the house and declared it having been passed. In my view, it has been passed with misplaced over-zeal to show the mighty and strength of brute majority in a representative democracy. It is classic example of hurried legislation and defeating the essence of democratic process.
Recently, the Supreme Court was examining the issue of child marriage and consequential offence of rape. This government took stand that ‘traditionally child marriages have been performed in different parts of the country and therefore such tradition must be respected and not destroyed’ and said that declaring ‘marital rape has potential of destroying the institution of marriage’. Sadly for the present government, the concept of protection of the institution of marriage does not apply to Muslims.
Now coming to the issue as to whether the proposed law is required at all after the Supreme Court having set it aside. Section 3 of the Bill declaring Three Talaq to be void is covered by the Supreme Court’s declared law. Section 4 of the Bill creates criminal liability. We have existing legislation, of quasi criminal nature, regulating domestic issues. It defines “domestic relationship” to mean and include relationship related by consanguinity, marriage, or through a relationship in the nature of marriage. Thereafter it defines “verbal and emotional abuse” to include insults, ridicule, humiliation, name calling, repeated threats to cause physical pain. At the maximum, utterance of non effective Triple Talaq can fall in the category of verbal and emotional abuse. For this abuse, the Magistrate is competent to pass a protection orders without breaking the family.
Again Section 5 of the Bill relates to subsistence allowance. It equally appear to be un-necessary as there is provision in the DV Act for grant of monetary reliefs by directing the respondent to pay the expenses incurred and losses suffered by the aggrieved person and any child as a result of the domestic violence including the maintenance for the aggrieved person as well as her children.
Lastly, the Bill contemplates custody for minor children in favour of the mother. DV Act has already provisions of custody orders of any child to the aggrieved person. In addition, the existing Act has provisions enabling the party aggrieved to approach civil court, family court or a criminal court, affecting the aggrieved person.
The Bill has nothing new except addition of serious criminal charges which will damage the family and create a fear psychosis of a majoritarian regime.