The ostensible reform Bill doesn’t serve its purpose as putting husband behind bars would lead to unwanted separation between the couple sans a ‘legal’ divorce
The Muslim Women (Protection of Rights on Marriage) Bill, 2018, which makes the practice of instantaneous triple talaq criminal offence with three years jail was passed in the Lok Sabha but is currently pending in the Rajya Sabha due to vehement protest by the Opposition which has demanded amendments.
Given the highly politicised discourse surrounding this practice, it is important to examine whether the Bill which makes all declaration of talaq, including in written or electronic form, to be void (ie not enforceable in law) and illegal, addresses the concern of gender justice.
The Bill loses sight of the issue at the core of triple talaq debate: protecting the interests of women. Ensuring that the deserter husband gets jail does not resolve the daunting task that lies ahead of a divorced woman of finding economic, social and emotional support for herself and her children.
The provision of sustenance allowance in the Bill does not seem necessary because Muslim women are already entitled to full lump sum maintenance to be provided within the iddat period that is 90 days after divorce under the Muslim Women Act, 1986.
The idea of sustenance allowance leaves Muslim women on the mercy of deserter husbands, thus undermining the progress made in Muslim women’s economic rights on divorce through the 1986 Act.
It is not clear whether the sustenance allowance would be subtracted from the maintenance amount or will be in addition to it. Putting the husband behind bars for three years just postpones the divorce which the husband is sure to obtain once he is out of jail. It penalises the already aggrieved wife and children by keeping them in limbo and stuck in an unwanted marriage for three years depending on the not-yet-defined sustenance allowance.
The Government could instead promote awareness that under the Muslim Women Act, 1986 to address the issues a Muslim woman faces in the case of instant triple talaq.
A major challenge in protecting the rights of Muslim women is the implementation of laws. There are laws already existing in India which can be used by Muslim women such as the Domestic Violence Act, 2005, the Muslim Women Act, 1986, and the Dissolution of Muslim Marriage Act, 1939.
The problem is that women are not provided with adequate support in pursuing long legal battles. A criminal or civil suit costs time, money and begets social stigma. Marginalised Muslim women need access to free legal aid to pursue any civil or criminal suit. The Domestic Violence Act provides for a State-appointed protection officer for providing free legal aid to women. However, the majority of victims report their cases through private lawyers than protection officers due to lack of awareness and availability of protection officers.
The Triple Talaq Bill has no provision of providing free legal aid to the victims of instantaneous triple talaq.
The Bill does not address the ambiguities left unanswered in the Shayara Bano judgment. While the judgment and the Bill declare instantaneous triple talaq invalid, both are silent on the legally valid form of divorce.
The State could make people aware of the more gender just practices of divorce in Islam such as the right of women to initiate divorce that is khula and faskh, talaq-e-sunna (divorce over a period of 90 days with attempts at reconciliation) and mubaraat (divorce through mutual consent). The State could also spread awareness about the Dissolution of Muslim Marriage Act, 1939, which gives Muslim women the right to dissolve marriage on various grounds.
In the nikahnama or marriage contract, women can stipulate the terms and conditions of marriage. The Government could push for certain mandatory provisions to be included in the nikahnama such as prohibition of instantaneous triple talaq and polygamy.
There can be a wide gap between legal validity and societal validity due to the continued legitimacy of religio-cultural practices in the social structure. If we penalise a religio-cultural practice, the result may be that women who are situated in these diverse practices are not able to approach official legal actors for help. Upholding women’s agency to exercise rights derived from multiple sources of law may be a more effective strategy in reforming gender unjust religious practices.
(The writer is PhD scholar, JNU, Delhi)