An incarcerated husband will not be in a position to pay maintenance.
After all attempts of the BJP-led NDA government to enact a legislation to criminalise triple talaq were thwarted in the Rajya Sabha by Opposition parties, it took the Ordinance route to bring in the controversial provision.
Ironically, by the time the government became determined to enact this provision, most women’s rights groups, including several Muslim women’s groups, had stopped supporting the demand to criminalise triple talaq.
The Supreme Court, in a number of rulings earlier, but more decisively in the Shayara Bano case in 2017, had already held that this practice is invalid as it does not have scriptural sanction.
Courts have also held that pronouncing arbitrary triple talaq, dispossessing a woman of her matrimonial residence or denying her economic support constitutes domestic violence and the aggrieved woman can take recourse to provisions of the Protection of Women from Domestic Violence Act 2005 (PWDVA). Even those groups who had filed intervener application in support of the PIL filed by Shayara Bano started endorsing the PWDVA.
But, sadly, few had used this provision when the campaign against triple talaq was raging in the media, hence there were hardly any reports which focused on this remedy as a counter to the hype created around triple talaq.
So pleas that the campaign against triple talaq was communally motivated and instead we should promote the Domestic Violence Act as the antidote fell on deaf ears, as everyone wanted to be on the bandwagon of “saving the poor Muslim woman”.
But when media reports started appearing about the government’s intention to enact a law to criminalise triple talaq, some women’s groups started ringing alarm bells expressing their concern on the ground that this law will add one more weapon in the hands of the police to incarcerate Muslim men. The handle to enact the law, sadly, was provided to the government by these very groups and the “secular and progressive” Muslim men’s groups.
Two groups stood firm in their demand to criminalise triple talaq – the Bharatiya Muslim Mahila Andolan (BMMA) and the RSS-affiliated Rashtrawadi Muslim Mahila Sangh projected that unless triple talaq is criminalised through a statute, it will not stop. After the ruling in the Shayara Bano case, members of this group were seen on television channels distributing sweets, within three months they started saying that the verdict has had no impact on the ground and that the practice has continued unabated. It is like saying even after prescribing death penalty, incidents of child rape have not reduced.
The demand of BMMA was music to the ruling party’s ears. During the election campaign, the Prime Minister had, with tears in his eyes, assured “Muslim sisters” that he will come to their aid. Again from the Red Fort, he proclaimed that he will not rest till Muslim women get justice. So the Ordinance is justified on this ground – after all, the government is doing it to bring justice to Muslim women.
The plight of Hindu women who are subjected to extreme violence, desertion and destitution doesn’t seem to bring tears to the Prime Minister’s eyes the way he is moved by the plight of Muslim women.
This despite the fact that indicators for Muslim women on nutrition, life expectancy, access to private healthcare system, etc. are slightly better than that of their Hindu counterparts, according to the Kundu Committee report. It really didn’t matter that 86 per cent of the number of girls married before the age of 10 are Hindus despite a law in place. It doesn’t matter that communities practising sex selective abortions are primarily Hindus; that overwhelming number of married women who commit suicide or are brutally murdered for dowry are Hindus; that a majority of those who are deserted and become destitute in India as per the 2001 census report are Hindus.
While the Prime Minister has not shed any tears for his Hindu sisters, his determination to save Muslim sisters has led the government to take the Ordinance route to incarcerate Muslim husbands for adopting an outlawed and invalid practice of pronouncing triple talaq, which in actual practice, as per the Supreme Court ruling, does not dissolve the Muslim marriage and the marriage remains intact.
There is something more here than meets the eye. The concern of the BJP-led government seems to stem from political posturing. The Muslim Women (Protection of Rights on Marriage) Bill 2017 will have to be ratified in Parliament within the next six months and this period will give the party sufficient time to campaign and, more importantly, project the Congress and other Opposition parties as anti-women and on the side of the Muslim clergy.
It will give the party ample scope to humiliate the Congress by constantly bringing into focus the Muslim Women Act enacted by the Rajiv Gandhi government at the insistence of the religious clergy to deny maintenance to Muslim women.
The Congress has been shamed to such an extent that when a much more draconian form of the bill was presented in the Lok Sabha, Congress members were tongue-tied. None of the Congress parliamentarians could clearly spell out the gains of this much-maligned Muslim Women (Protection of Rights on Divorce) Act 1986 enacted after the controversial Shah Bano ruling, including the fact that it has actually come to the aid of divorced Muslim women by ensuring a fair and reasonable settlement for life. The Act provided for maintenance for three months of iddat period for the divorced wife and the provision of lumpsum settlement for life. Any confusion created by the wording was clarified by the Supreme Court’s Constitutional Bench in the 2001 Danial Latifi case. The ruling held that the Act is constitutionally valid and clarified that the Muslim woman is entitled to a settlement that would secure her for life. Even our lowly magistrates adjudicating this issue in far-flung areas are well aware of it and abide by the pro-women rulings. But, unfortunately, our legislators, legal experts, campaigners and the media have consistently failed to recognise the fact that today the situation of a Muslim woman is far better than that of her Hindu counterpart.
The Ordinance, brought ostensible to protect Muslim women, may actually prove to be far worse than the remedies she is entitled to under existing legal provisions.
An incarcerated husband will not be in a position to pay maintenance. It will also not save the Muslim wife’s marriage. And the police, functioning within an Islamophobic social milieu, will push women towards this new remedy rather than the civil remedies under the PWDVA. This will be a bigger tragedy for which no tears will be shed during election campaigns.