Triple Talaq Law: New Vote-Bank Politics

By Ashwin Tombat
04 August 2019 09:22 IST

Shah Bano, a 62-year-old Muslim mother of five, was divorced by her husband – renowned Indore-based lawyer Mohd Ahmad Khan – by instant triple talaq in 1978. She filed a criminal suit for maintenance, which finally reached the Supreme Court. On 23 April 1985, a five-judge Constitution Bench upheld her right to get a maintenance allowance from her husband.

Muslim religious leaders campaigned against the verdict. The then Congress government under the late Prime Minister Rajiv Gandhi – which had a massive three-fourth majority in the Lok Sabha – passed the ‘Muslim Women (Protection of Rights on Divorce) Act, 1986’ which reversed the Supreme Court judgment.

This was one of the most blatant and shameful instances of appeasement of orthodox and backward religious sentiments in the history of India. Later, the Supreme Court nullified this rotten law, but it remains a prime example of the ‘vote-bank politics’ of the Congress party.  

Interestingly, former Chief Information Commissioner Wajahat Habibullah has written that it was journalist-turned-politician M J Akbar who influenced Rajiv Gandhi to support the stand taken by the Muslim clergy. Mr Akbar later joined the BJP in 2014 and was a minister in Narendra Modi’s government, but resigned in disgrace after allegations of sexual harassment of women journalists when he was an editor. Mr Akbar – who is still in the BJP – has not denied Mr Habibullah’s claim.

On Tuesday, the Rajya Sabha passed the ‘Muslim Women (Protection of Rights on Marriage) Act, 2019’ (passed by the Lok Sabha earlier). On Thursday, President Ram Nath Kovind gave it assent. The law invalidates, as well as criminalises, instant triple talaq. It provides for up to three years of jail for ‘Talaq-e-Biddat’ (pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife). It makes the offence cognisable and non-bailable.

The BJP has hailed the passage of the triple talaq bill by Parliament as a step that will help correct a historic wrong done to Muslim women.

Does it really?

The Supreme Court’s landmark judgment of 22 August 2017 by a five-judge Constitution Bench comprising Justice Kurian Joseph (Christian), Justice UU Lalit (Hindu), Justice RF Nariman (Parsi), Chief Justice Khehar (Sikh), and Justice Abdul Nazeer (Muslim) in ‘Sayara Bano vs Union of India’ pronounced on August 22, 2017 by a majority of 3:2, had already declared ‘Talaq-e-Biddat’ or instant triple talaq as unconstitutional. Even the minority judgment directed the central government to formulate a legislation to make it illegal.

This new law makes only ‘Talaq-e-Biddat’ or Instant Triple Talaq illegal. ‘Talaq-e-Ahsan’ and ‘Talaq-e-Hasan’, which also allow men to divorce women verbally – but over more than a single sitting – remain legal.

The second problem in Tuesday’s law is that it does not say a word on maintenance (it only talks of ‘subsistence’). It does not provide the victimised woman any additional rights in marriage or divorce. Muslim women remain just as helpless as Shah Bano. 

The third and biggest tragedy of the law is that if a Muslim woman makes a complaint under the law, her husband will be in jail. How, then, will he earn money to pay a ‘subsistence allowance’ for the woman and her dependent children to survive? She will still be legally married to him, despite having been orally divorced. The criminalising clauses in the law don’t empower Muslim women at all.

Under the ‘Dissolution of Muslim Marriages Act, 1939’ a Muslim woman can seek a divorce in a court of law. Why couldn’t this law have been amended, modernised, and made applicable to men too?

A ban on all forms of verbal divorce and a provision for proper maintenance would have really empowered Muslim women. But the present law has no such provisions. So, what’s its actual purpose?

The name gives a clue. Mr Narendra Modi’s new law is called the Muslim Women (Protection of Rights on Marriage) Act, 2019. Mr Rajiv Gandhi’s infamous law was called the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Except for the word ‘Marriage’ replacing ‘Divorce’ and the year of enactment, their names are identical. So is their actual purpose – to appease religious sentiments and indulge in vote-bank politics. Different religions; different vote banks. But the same rotten intention.

Disclaimer: Views expressed above are the author's own.

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Ashwin Tombat

Ashwin Tombat has been the Editor of Gomantak Times and Herald. Worked as an Associate Editor of national magazine Gentleman in Mumbai, before shifting to Goa. Loves sailing, also participates in Marathons. Has worked as an activist in students's union and trade unions in Maharashtra. Also an artist of Street Theatre during student days.

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