Likely Consequences of Criminalizing Triple Talaq

By M Reyaz 

On Thursday, Lok Sabha passed the contentious Triple Talaq Bill criminalizing instant talaq (divorce) by Muslim men, with a jail term of up to three years for the husband. Here, I try to break down different scenarios for you to understand its consequences:

Consider the following different scenarios when a Husband pronounces Triple Talaq instantly:

1) An intoxicated or/and angry husband pronounces 3 talaqs at one go. He later realises his follies and seeks fatwa from ulama as the couple want to stay together (laughable as it may appear, this is often the case).

Hanafi Fiqh says instant triple talaq will dissolve the marriage, others, most notably Salafis disagree. Now SC too affirmed that instant TT will not annul the marriage.

2) Whether in anger or due to some serious differences or marital discords (including as frivolous as not cooking food), husband pronounces TT instantly (or sends SMS/mail). If the TT Bill becomes law (it needs to be passed in the Rajya Sabha, but an ordinance to this effect is already in place), the wife has 2 options in such a scenario:

2.a) Since SC has said marriage is not annulled (even clerics will now be careful in issuing fatwa), so the couple stays together if they so wish.

2.b) If the wife also wants to separate from the husband, they will separate since husband will have little option in stopping her after pronouncing TT.

2.c) If the husband wants to separate  but the wife is opposed to the idea for whatever reasons (including socio-economic security, they have children to take care), she has three options:

2.c.i. Wife will urge family members on both sides to intervene and convince the husband. If the husband is convinced, the matter will end there.

2.c.ii) Husband refuses to take back his wife, so wife relents and they separate amicably.

2.c.iii) As husband refuses to take back his wife, she files a criminal case against him under new TT law (ordinance) punishment for which is up to 3 years. If a case is filed then following situations can arise:

2.c.iii.a) The man is arrested and after spending few weeks (if he is granted bail) or up to 3 years if found guilty, the husband can come back to wife since the TT does not annul the marriage in any case (SC has confirmed it).

Such a scenario will be exceptional or only if the husband and wife come to mutual consent and a deal is brokered (perhaps after interventions by family and friends). it may sound odd, but if you have really seen any cases of divorce (whether Hindu or Muslim), or ever visited courts, you will realise, this is quite normal.

2.c.iii.b) Or the husband can file for separation under the law (what can you expect after the man has been criminally convicted because he had a fight with wife one day and pronounced the words that even the Apex Court says has no validation!).

3) Some sort of marital discords between husband and wife are going on, and to take revenge or because the wife wants to separate, she files a case against the husband accusing him of saying Talaq thrice.

Considering the above possible scenarios, it is clear that the criminalization of instant Triple Talaq will further aggravate the marital discord rather than helping solve it in any way. It is clear that laws will not help a single Muslim family in a positive way. The criminal law will be invoked in only two likely options (2ciiib and 3).

One may say that this law will act as a deterrent, well, that’s what all criminal laws are meant to be. But we know that there is no study till date that can safely prove that a harsh law ends a social evil.

In fact, it may prove counterproductive and lead to an increase in desertion among Muslims without giving formal divorces. According to the 2011 census data, analysed by Abusaleh Shariff and Syed Khalid, the percentage of women staying in the marriage is highest amongst Muslims (87.8%) compared to Hindus (86.2%), Christians (83.7%) and other religious minorities (85.8%). The percentage of separated and abandoned women is also least amongst the Muslims (0.67%) compared to Hindus (0.69%), Christians (1.19%) and other religious Minorities (0.68%). The same census data suggests that the divorced women percentage is higher amongst the Muslims ay 0.49% and Christians at 0.47% compared to other religious minorities (0.33%) and the Hindus, at 0.22%.

Further considering the fact, how Indian police service and judicial system work, there might be likely situation that for an alleged crime which at best can be civil in nature, a man can be languishing in Jail for years (even though punishment is only up to three years).

The law on triple talaq cannot be regarded as the one done with good intentions though hurriedly made, as many are suggesting. Since the Apex Court already pronounced instant TT null and void, and even the Muslim Personal Law Board had grudgingly accepted it, it would have been good if the government of the day had invested in taking AIMPLB on board, and worked towards completely abolishing this evil practice at the grassroots level

Instead, by bringing such a law, the government has given the Board and Muslim clerics a new lease of life who will now fight tooth and nail. It, of course, helps the BJP as the construed way in which the polarization politics work, this will help BJP consolidate its core voters. Do not forget that the Bill was passed in the Lok Sabha among chants of Bharat Mata Ki jai.

Of course, the BJP government is using every opportunity to victimize Muslims. Many joke that they seem to love Muslim women as much as they hate Muslim men. Well, not really!

They are just using it as an opportunity to settle scores with a community they hate so much. As Flavia Agnes had said in Kolkata, in a seminar I helped organise, “Triple Talaq is a low hanging fruit” for the BJP to use it as a stick against Muslims.

Remember that when communal riots happen, women bodies become the battleground to “teach” lessons by raping them, whether it was the partition, 2002 riots or 2013 Muzaffarnagar riots. When husbands and sons of those same Muslim women are arrested on fake terror charges, it is the women who suffer the most as often they have none to even feed them, or help them in the long-drawn legal battle.

But then did any of us expect the BJP to behave and act any differently? We did not have any pretentions of BJP #SabkaSaathSabkaVikas. We knew from day one their real agenda, unlike the self-proclaimed Hindu liberals and closet-Sanghi.

This is where the Muslim leadership, the Muslim personal law board, Jamiat-Ulama e Hind and even politicians like Asaduddin Owaisi need to share the blame. They have become all so vocal now, what were they doing since the Shah Bano case?

It is precisely their failure that has given ammunition to the BJP, aided by so-called champions of Muslim women rights, led by Bharatiya Muslim Mahila Andolan.

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