Was an ordinance needed to criminalise instant triple talaq so hastily even when the Supreme Court has already dealt with the matter? In my view, no. Because, the agenda of the ruling BJP at the moment is neither social reform nor empowerment of Muslim women, but to implement a strategy to reap political dividends in 2019.
In its calculated imagination, first, the BJP is more interested in inviting conservative resistance from the Muslim masses, scholars and clergy to appropriate the secular sense of majority. Firstly, through this ordinance, the BJP is trying to push the opposition parties, particularly the Congress, to the wall in two senses: If the opposition parties support the ordinance, they will lose some support among Muslims; if they oppose, they will lose credibility among many Hindu voters. Second, the 2019 election is going to be highly competitive and the winning margin may be extremely low. In this situation, even a slight shift in the voting pattern of women in general, and Muslim women in particular will be advantageous to the BJP.
Third, while hyping up triple talaq, the BJP may try to divert the attention from inflation, joblessness, fuel-hike, rupee decline and so on. To put it differently, the cultural system of Muslims has now become a playground for Right-wing populism. The temptation to find more and more moral faults in the cultural system of Muslims is growing; the objective is to carve out the morally superior ‘Hindu vote’ at the cost of political exclusion of Muslims.
At the most fundamental level, the practice of instant triple talaq could not be justified. So the Shayara Bano judgment of the Supreme Court in 2017 was applauded by the saner voices among the Muslim community. In many aspects, it was truly a progressive judgment.
After the judgment, it was settled that the unilateral and instant triple talaq is neither an essential principle of Islam nor could be constitutionally guaranteed. It is also widely agreed that this form of talaq is an undesirable human innovation to accommodate the pre-Islamic privileges of men over women.
There were many arguments offered. First, the divorce rates among Muslim women is minimum. According to the 2011 Census, only 0.49 per cent Muslim women were divorcees. Second, only 6.5 per cent of the fatwas (collected across 10 states) were about triple talaq. Third, the reform in Muslim personal law should come from within the community and that too in a piecemeal manner. Fourth, instead of judicial/legal denial of instant triple talaq, the notion of social boycott was offered to help women.
Fifth, the debate on instant triple talaq is irrelevant as the most important issue is the economic protection of Muslim women in her post-talaq life. Finally, it is also argued that instant triple talaq is to be treated as a civil wrong but not a criminal offence. Triple talaq as a punishable offence will not only be misused against Muslims but also disempower Muslim women in many senses.
Undoubtedly, there is merit in each of these arguments. The nature of the arguments also shows a positive transformation among certain Muslim bodies, intellectuals and the clergy. But what they missed is the fact that the very idea of instant triple talaq is discriminatory and unjustified.
The problem with this form of talaq is not more about its prevalence but its ‘threat value’ that works like the sword of Damocles permanently hanging over a woman’s head. Even the supposed minimal use of fatwa does not justify the existence of instant triple talaq as there is no mechanism to address the deviant clerics who issue it for dubious reasons. Similarly, piecemeal reform is a rare possibility as the practice is linked with the patriarchal articulation of superiority of men over women. This can be seen in the valiant survival of this practice since the last 1,400 years.
The piecemeal reforms may take place after woman are legally entitled to challenge the practice in court. We must acknowledge that in an entrenched patriarchal society, social boycott of the husband unilaterally discarding his wife has no value.
The only remedy is to criminalise the practice through state laws with certainty of punishment. But the law is not to be made in haste and without considering the apprehensions of the community. So, I do not justify the recent ordinance as it is being approved for political mileage with mala fide intentions rather than addressing gender justice.
Equally, there is a need to address the socio-economic miseries of pre- and post-talaq Muslim women. The present government, which is showing extraordinary generosity towards Muslim women, should come out with policies to help the divorced women by creating rehabilitation and reformation centres and launching a special welfare fund to enable them start a fresh life. It should ensure the rights of Muslim women to get their due dower and maintenance. The Centre should particularly make sure Muslim women get a share in their ancestral property and provide them with better educational opportunities, vocational training and so on.
A radical change in the cultural system of Muslims to give a sense of freedom to their women from being divorced unilaterally is the need of the hour. There is a need to welcome progressive judgments and laws if they are in the best interests of the women who are easily discarded by their husbands and forced to live a helpless and stigmatic life. But it is equally important that the law should neither be hastily made nor be political motivated.
Head, Department of Political Science
Maulana Azad National Urdu University, Hyderabad