Reeta Singh is a senior journalist with over 30 years’ of experience in print and electronic media. She is also a social activist, working on gender issues
History has been made, exclaimed Union Law Minister Ravi Shankar Prasad, immediately after Rajya Sabha approved Muslim Women (Protection of Rights on Marriage) Act, 2019 - euphemistically called Instant Triple Talaq (Prohibition) Law.
Prasad was right for never before has a government tinkered with Muslim Personal Laws against the community’s wishes. That too without evolving a political consensus. It took the BJP led NDA government three long years and two attempts to enact this law. Its first attempt in 2017, Modi Government couldn’t enact the law because it didn’t have majority in Rajya Sabha then and the Bill was stonewalled by the joint opposition. It didn’t have majority in the upper house this time either, but managed to get the bill passed through some deft political manoeuvring.
History did get created. But, benefits and losses will be counted for months at least. Both on social and political fronts. BJP dared venture in a territory considered a no-go-area by most political parties. Muslims normally vote en bloc and no party ever wanted to antagonise the community for the fear of suffering erosion if vote share results in political loss.
BJP didn’t have much to lose. It prided itself in being a majoritarian party with a pronounced Hindutva agenda. It never had support of Muslims. Hence, it never feared loss of a vote bank. It rather served it well in cementing its position among its staunch Hindu supporters as being the only party which could ‘show Muslims their place’. On the other hand, it expected some support from Muslim women who would have perceived emancipation from age-old practice of Instant Triple Talaq (TTT) or Talaq-e-Biddat.
The practice of uttering ‘Talaq’ thrice at one go, resulting in instant divorce among Muslim families doesn’t find mention in Quran or Hadees, scriptures which are supposed to direct Muslims’ social, religious and personal lives. It is gender-skewed, as only Muslim husbands could divorce their wives through this. A repentant husband wanting to reunite with wife, had to allow his wife not only to marry somebody else but also consumate marriage before divorcing her second husband to reunite with the first one. The process was called Halala.
It was conceived by Muslim clergies that the thought of allowing his wife ṭo sleep with somebody else, would deter a Muslim man, from resorting ṭo TTT. But, they overlooked the agony of the woman who would have to sleep with someone else - often against her wish - to get back to her family. Such practices have been highlighted of late, in now famous Imrana and Gudia cases. Imrana was raped by her father-in-law. The Shariah court - governed by Muslim Personal Law - ruled that she should divorce her husband and marry her father-in-law.
Similarly, Gudia’s husband Arif, an army jawan, was supposeḍ to have become prisoner of war (PoW) in Pakistan. After waiting for him for a few years, she married Taufiq. But, as she was about to deliver Taufiq’s child, Arif returned. The matter was taken up by the Shariah court which ruled that she should go back to Arif. Gudia however, wanted to stay with Taufiq. On the other hand, Arif was ready to accept Gudia as his wife but not her child from Taufiq. No court asked Gudia what she wanted. A traumatised Gudia died soon after.
It is cases like these which have exposed pitfalls and shortcomings of Muslim Personal Laws (MPL). Muslim clergies have strongly resisted any fiddling with MPL, calling it an unsolicited infringement. So called secular parties too have desisted from touching the sensitive subjects like these for fear of losing their votes.
On the other extreme were parties like Congress, Rashṭriya Janata Dal, Triṇamool Congress or Samajwadi Party which walked an extra mile or two to please Muslims. SP leader Mulayam Singh Yadav, in those turbulent years of 1990-91 - at the peak of Ram Janmabhoomi agitation - had famously said, “Muslims have a right to keep weapons for their safety”. Belligerent rogue elements among the Muslims, took advantage of such proddings and Uttar Pradesh saw one of the worst communal riots in November 1990 after Vishwa Hindu Parishad cadres tried to assault Babri Masjid and police under then chief minister Mulayam’s instructions - ‘Parinda bhi par nahiṅ mar sakta’ (Even birds won’t be flying without state’s permission- opened fire on unarmed kar sevaks.
Then there was Rajiv Gandhi who enacted a law in Parliament to nullify a court verdict in Shah Bano case granting her maintenance allowance from her husband post divorce. Rajiv had a chance to support the court verdict and emerge as a reformer of Muslim Personal Law. He, however, chose the other path. Having overwhelming majority in both houses of Parliament, he passed a law to reverse the SC ruling. This enraged Hindu hardliners who saw the act as state’s capitulation to Muslim fundamentalists.
Thus, Modi took a completely uncharted path. He had scant care of fundamentalists or the secular leaders. He had his own vote bank in mind, besides of course, the image of being a social reformer of Muslim Personal Law. He conveyed that in so many words as well. In his speech in the Parliament, Modi said, had Raja Ram Mahan Roy cared for traditions, popular sentiments and religious feelings, social issues like sati and child marriages would still have been prevalent in the country. If social evils like these may be eradicated from Hindu personal laws, why shouldn’t Muslims come forward and support the initiative to weeken out illogical and regressive social practices from their customs and traditions?
But politically sagacious analysts see the development as a decoy to please BJP’s belligerent Hindutva constituency, which is not only vocal but also assertive. The strident Hindutva core base was initially supposed to consist of upper caste radicals. But, that was the case from 1989 to 2012-13. Emergence of Narendra Modi as Prime Minister has expanded this constituency. As analysis of 2019 Lok Sabha results demonstrated, the neo-Hindutva constituency which catapulted BJP back to power, now comprises almost all castes - including OBC, hitherto considered a bastion of leaders like Mulayam Singh Yadav and Laloo Prasad Yadav; as well as Dalits, so far treated as sole preserve of Mayawati.
The political polarisation is apparently the result of secular leaders’ overtures pandering to Muslims in all respects. Who can forget then Prime Minister Dr Manmohan Singh’s announcement that Muslims had the first right to the country’s natural resources? Or West Bengal chief minister Mamata Banerjee attending namaz and ordering a delay of Durga Puja processions to avoid a clash with Muharram procession. Mayawati’s clarion call to Muslims during 2019 election rally in Deoband, not to allow split in their votes by voting for Congress candidate, had apparently set the ball rolling for a return of Modi raj at the Centre. It is because of these developments that analysts feel that BJP has killed two birds with one stone - placating the Hindu hardliners and emerging as social reformer of Muslim social evils. One of them has in fact compared BJP’s focus on triple talaq to the United States of America’s attack on Afghanistan. The US made its people to believe that they were attacking the Taliban. They however, ignored America’s role in the rise of the Taliban. The US said that its aim was to protect women from the Taliban, when the real agenda was getting access to Afghanistan’s natural resources and becoming powerful. Gender protection was just their stated agenda.
It is in this context that one should view BJP leaders’ penchant for talking about now bringing in a Uniform Civil Code (UCC). In fact, not just instant talaq, even the talaq that takes three months should go. This is not to say that divorce should be disallowed.
Actually, a legal form of divorce should be irrevocable. If for any reason a married couple wants to separate permanently, the law governing the process should be just and equal for both men and women. In Muslim personal law, the power to divorce is only with the male. The patriarchal system, which has such a strong hold on society that rights to property, adoption, surrogacy, etc., place woman on a lower pedestal than man. This happens in all personal laws, not just Muslim personal law. This is why gender justice and not triple talaq should be the frame of reference for both the government and the civil society.
However, the newly enacted law proscribes three years sentence for the offending husband. It is unclear from the Act as to how long the process of going to the police, then the magistrate, who will summon the husband, and the final order in the case will take.
What is the woman supposed to do between the time she is thrown out of the house and the final order? Will she return to the marital home? The Shah Bano case did not seem to protect or bestow rights on women. Not much was gained from the Muslim Women (Protection of Rights on Divorce) Act.
There is yet another facets to ITT law enacted in Parliament. It was easy for the government to get the Bill passed, courtesy walkouts and absence of Opposition parties and MPs superficially opposed to the legislation. There was little bipartisan scrutiny of the Bill. The behaviour of various parties and lawmakers who ensured that BJP’s minority became majority in the House, showed their inability to counter BJP’s accusation of them being ‘pro-minority’. Blindsided, they did not realise that siding with BJP would mark a major step in their eventual political demise. Hereafter, an ally like Janata Dal (United) leader and Bihar chief minister Nitish Kumar will find it tougher to retain their core base, already chipped away by BJP.
The BJP managed to convey to its supporters within the majority community that even ‘secular’ opponents of the anti-ITT Bill were aligned with the Muslim orthodoxy. The opposition was in complete disarray in Rajya Sabha. As many as 56 MPs, half of whom belonged to the opposition, were absent from the house. Interestingly, some of its members spoke against the Bill in the morning but were not present to vote in the evening (See Box).
Many opposition leaders who had spoken against the Bill refrained from voting. For instance, TDP’s Ravindra Kumar Kanakamedala, who had actively participated in the debate, was conspicuously missing during the vote. Similarly, PDP chief Mehbooba Mufti voiced her opposition to the Bill on Twitter. TMC’s Derek O’Brien said “This is not floor management. It’s the not-so-invisible but most dependable allies of the BJP: the CBI and ED,” hinting at the investigative sword of Damocles hanging over the heads of the missing MPs.Actually, seeking ‘revenge’, not justice, for wronged Muslim women was the driving spirit behind BJP’s campaign and legislation for outlawing ITT. This falls under the panoply of Muslim men who commit crimes — those who wage ‘love jihad’, engage in ‘cow slaughter’ and ‘instantaneously’ divorce their wives.
Interestingly, BJP leaders are silent on the plight of abandoned or divorced women among Hindu and other religions. The Census 2011 data on the marital status of Indians shows that among all divorced women, 68 percent are Hindus and 23.3 percent Muslims. It further reveals that 5.5 in 1,000 Hindu couples tend to get separated, including cases of wives being abandoned by husbands. Thus, both legal divorces plus separation among Hindus amount to 7.3 per thousand women. This brings to light the fact that Hindu divorce and separation rates are much higher than among Muslims, just 5.63 per thousand women in 2011 census, wherein separation or abandonment is not a significant factor due to easy divorce and notorious use of triple talaq. Obviously, politics and not sociology is the deciding factor for the BJP.