Indian women have lesser divorce rate, and among the communities where the gender gap is higher- the divorce rate is often lesser. The woman who is not educated and independent financially has no say in the family decision. In India marriages are often ‘arranged’ and girls are raised devoted to husbands. However, due to education and awareness of rights, the scenario has changed.
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| Credit- Scroll.in |
The woman has started to challenge regressive norms and abusive behavior. The triple Talaq, and Sabarimala Temple issue challenged the social norms.
There were different arguments between orthodox and progressive communities. The conflict remains inevitable and scary too.
Triple Talaq is a norm now which is on the target of reform versus ‘holding on’ to tradition. There has been involvement of Muslim Indian women, The Supreme Court and the Indian government which introduced a law for making the ‘Triple Talaq’ a punishable offense.
However, there are different opinions about Triple Talaq Bill, which was re-introduced to be passed in June 2019.
What is Triple Talaq?
Triple Talaq is also known as Talaq-e-biddat, or instant divorce and talaq-e-mughallazah. It is a form of Islamic Divorce which is practiced by Muslims of India.
It allows a Muslim man to legally divorce his wife by stating the word ‘Talaq’ three times in oral, written as present in electronic form.
Why Triple Talaq has been controversial?
Triple Talaq has been subject to controversy and debate. These issues have raised a question of justice, gender equality, human rights, and secularism.
The conflict started when the practice was opposed by some of the Muslim women. Some of them filled a Public Interest Litigation (PIL) in the Supreme Court against the ‘Triple Talaq’ and termed it regressive.
In the PIL, the petitioners asked for section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 to be scrapped, describing it as being against Article 14 of the Constitution (equality before the law).
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 states about the application of Personal law to Muslims, and that included Talaq.
On 22 August 2017, the Indian Supreme Court deemed triple talaq unconstitutional. This decision was taken by a five-judge bench.
Three of the five judges declared the triple talaq practice to be unconstitutional and the remaining two have said, that practice to be constitutional while simultaneously asking the government to ban the practice by enacting the law.
As a conclusive note, the judiciary indicated the practice to go away.
After the court made the practice unconstitutional, there were 100 registered cases of triple talaq.
The Modi government in India won in 2014 Lok Sabha elections with a huge mandate, which has Introduced the bill in the lower house of Parliament – The Muslim Women (Protection of Rights on Marriage Bill, 2017).
The Bill was introduced after the Supreme Court has passed the judgment against the Triple Talaq practice, and there were 100s of cases of Triple Talaq.
The bill makes instant triple talaq (talaq-e-biddah) in any form — spoken, in writing or by electronic means such as email, SMS, and WhatsApp illegal and void, with up to three years in jail for the husband.
Member of Parliament from RJD, AIMIM, BJD, AIADMK, and IUML opposed the bill, calling it arbitrary in nature and a faulty proposal, while Congress supported the Bill tabled in the Lok Sabha by law minister Ravi Shankar Prasad.
The bill faced stiff resistance in the Rajya Sabha in 2018. Several Opposition lawmakers called for it to be sent to a select committee for close scrutiny.
However, the bill was finally passed by Lok Sabha on 27th December 2018 with strong support. A bill has to be passed to become law in both- Rajya Sabha and Lok Sabha, and the tenure of the ruling government ended, so the bill lapsed.
After winning an overwhelming majority in June 2019, the BJP government again gained the power and the first bill which was introduced in Lower house (LokSabha) was The Muslim Women (Protection of Rights on Marriage Bill, 2019).
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The Support for Triple Talaq- The Orthodox Side
Triple talaq has been supported by the All India Muslim Personal Law Board (AIMPLB). All India Muslim Personal Law Board is a non-governmental body that supervises the application of Muslim personal law. It propagates that the State does not have the right to intervene in religious matters.
In April 2017, citing a report prepared by Muslim Mahila Research Kendra in co-ordination with Shariah Committee for Women, AIMPLB has claimed that Muslims have a lower rate of divorce compared to other religious communities, countering the argument that Muslims have the highest number of divorces in the country due to the practice of triple talaq.
It also claimed that it had received forms from 35 million Muslim women across the country, supporting Shariat and triple talaq.
AIMPLB issued a code of conduct in April 2017 regarding talaq in response to the controversy over the practice of triple talaq.
It also warned that those who divorce for reasons not prescribed under Shariat will be socially boycotted in addition to calling for the boycott of those who use triple talaq recklessly and without justification.
What is the Muslim Women (Protection of Rights on Marriage Bill, 2019)?
As the triple talaq ordinance of 2018 was to expire on 22nd January 2019, the government introduced a fresh bill in the Lok Sabha on 17th December 2018 to replace the ordinance.
The provisions of the bill are as follows:
· All declaration of instant triple talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
· Instant triple talaq remains cognizable offense with a maximum of three years imprisonment and a fine. The fine amount is decided by the magistrate.
· The offense will be cognizable only if information relating to the offense is given by the wife or her blood relative.
· The offense is non-bailable. But there is a provision that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the wife and if the Magistrate is satisfied with reasonable grounds for granting bail.
· The wife is entitled to subsistence allowance. The amount is decided by the magistrate.
· The wife is entitled to seek custody of her minor children from the marriage. The manner of custody will be determined by the Magistrate.
· The offense may be compounded (i.e. stop legal proceedings and settle the dispute) by the Magistrate upon the request of the woman (against whom talaq has been declared).
Is Triple Talaq followed in the Muslim Countries?
Triple talaq- the custom is banned in the Muslim-majority countries of Saudi Arabia, Morocco, Afghanistan, and Pakistan.
On 10 May 2017, senior cleric Maulana Syed Shahabuddin Salafi Firdausi denounced triple talaq and nikah halala, calling them un-Islamic practices and instruments to oppress women. The practice was also opposed by Hindu nationalists and Muslim liberals, which again offended the Muslim Orthodox.
The AIMPLB's lawyer Mr. Kapil Sibal had said that though instant talaq can be thought of as a sin by some, but that "setting the validity of customs and practices of a community is a slippery slope".
Kapil Sibal cited Article 371A to state that even the Constitution does intend to protect matters of practice, tradition, and customs of communities, that meant ‘not to have a remedy for triple talaq’.
What Should be done?
Society does not have a higher divorce rate, as women are obliged to be in marriage. Socially, there remains a very complicated world if she divorces and financially ‘chained’.
Therefore, when people claim that India has a lesser divorce rate, people should consider that India has lesser ‘love marriage’ rates as well. People who do not have a say in marriages, will not have the opinion in divorce as well.
According to Census 2011, there were 13.2 lakh divorcees in India, which according to the report seem underreported. As many couples are separated by stay together without officially announcing their end of marriage as social pressure remains higher.
The divorce rate remains highest for the Buddhist Community, followed by Christian, Muslims, Other communities, Jains, Hindus, and Sikhs.
Many people have argued against the Triple Talaq Issue which is prevalent among Muslims.
People have argued that Muslims do not have the higher divorce rate, and they consider it as an argument for not having the triple talaq bill, which prohibits the Muslim man to give divorce to women according to Muslim laws.
Triple Talaq remains one among the regressive religious practices where Indian Muslim Husband simply utters the word Talaq(divorce) three times and religiously, it is accepted as a divorce.
The couple who wants to remarry after triple talaq has to go through the brutal regressive practice of Nikah Halala. In other case, women do not obtain legal rights as constitutionally provided by law.
People miss the point here that the Triple Talaq has been against gender equality and regressive norms, and defending it in the name of religion would not serve the interest of weaker section.
Maybe media has highlighted some of the ‘rarest cases’ of Triple Talaq, but one cannot deny that the rights of women have been denied by religious orthodoxy. For any progressive step, they consider progress as an attack on their religion.
According to the facts, and the Center for Research and Debates in Development Policy only .3 percent divorces in the Muslims Community were through triple talaq, but they existed. Women may be in minority but they deserve Justice.
There is no legal recourse available to Muslim women in the face of Personal Law and hence they suffer mental and physical abuse.
Muslim women have an illiteracy rate higher than the national rate, they even lack access to health and are unaware of their fundamental rights.
Only 15 percent of Muslim women work, and Muslims have the lowest living standard.
These all things are connected with the humiliation Muslim women faces after Talaq.
Therefore, there should be legal ways to tackle the issue of triple Talaq, however, the bill punishes man as a criminal and jail can be awarded up to 3 years, while in other divorce cases the Jail sentence remains for 1 year, this remains controversial.
The punishment should be equal for the same crime, as it violates the basic nature of the Indian constitution. Therefore, there should be some amendment in the bill itself. However, there is a need for legal support for women and achieve gender equality and justice which remains an important part of sustainable development goals- India has to achieve by 2030.
Bhim _UPI - 526683880@icici
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