By Dr Shabana Kesar Suri
After tainting Muslims as terrorists, BJP has used many such tactics to diminish Muslims in the name of love jihad, population blast, beef politics and lynching. And now BJP has found its new way of portraying Muslims as violators of women’s rights. The recent bill which was passed in lok sabha criminalizing triple talaq has once again proved that BJP in a bid to portray itself as the savior of Muslim women has landed them in problematic situation in the name of gender justice. BJP did not faced much opposition except few including RJD, AIMIM. Though this bill is being opposed by many women’s rights groups has made it way clear in Lok Sabha in spite of having many anamaloties and contradictions with the verdict of Supreme Court of four months ago granting triple talaq as unconstitutional and invalid. And if passed in upper house with same subtle attitude of opposition will result in a law that will not only harm Muslim women but the whole Muslim community. Now the question arises if triple/instant talaq is invalid, for what crime would be a Muslim husband is criminalized.
Faizan Mustafa, a renowned legal expert and vice chancellor of NALSAR University of Law, Hyderabad said, “The purpose of criminal law is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests”.
And according to the verdict of Supreme Court instant talaq holds no effect and marriage would continue to subsist. Thus criminalizing offence which has no legal effect is totally illogical and absurd.
It is very clear that with this bill all possibilities of reconciliation between the couple would end if the husband is criminalized and Muslim women have to look up to others for maintenance of her and her dependants. In an Indian patriarchal society there are all possibilities of a woman being ill- treated by the society in general and by in-laws in particular when her husband is sent to jail. How a woman as a single parent would lead her life is a fact well known to all. This bill has many consequent impacts on husband –wife and children and Muslim society at whole. It will not only make woman homeless, maintenance less and estranged though the bill says that she has all right to stay in her matrimonial home, how many will abide and what treatment will be rendered to her is a question. And when the husband returns from jail what impact will be on his social and economic life is also in question. And the most consequent impact will be on the children of that couple who will be labeled as children of criminal which will not only hinder their personal growth but would also land up many daughters and sons in the state of insecurity and jeopardize. It will not only destroy the very essence of a family institution but also add to the prevailing alienation among the Muslim community.
Another backdrop is that this bill makes triple talaq a cognizable and a non-bailable which will give all chances to any third person having personal grudge to file a FIR against the husband and the police will need no warrant to arrest him and there is no provision of wife taking back the case.
As also pointed by Abhishek Sudhir, founder of Sudhir Law Review, a legal education website. “When an offence is non-cognizable, it is considered a private wrong and prosecuting the offender is left to the initiative of the individuals actually aggrieved by the offence. The rationale underlying such restrictions is that the world at large should not be allowed to prosecute an errant husband, especially when the aggrieved wife has no desire to see him punished”. For instance in case of marital rape {section 376B of IPC}} and bigamy {section 494 of IPC}, the police will probe an investigation only when a wife wishes to do so, wherein in case triple talaq wife has no such authority.
The fact that needs to be pondered upon is that if the present govt really wants to empower Muslim women as said by the law minister in the lower house they should empower them by increasing education and employment facilities so that no matter according to correct procedure or instant talaq a woman should be in a position of maintaining herself and her dependents. Why the present Govt bent upon proving that Muslim women are leading a life of insecurity and at the mercy of their husband with a sword of divorce swaying over their head always.
The bill of this nature, having attracted so many anamaloties and contradictions from many right thinking intellectuals, should have been discussed and interpreted with the Shariah experts, women rights activists, law experts before passing it in Lok Sabha which witnessed hasty and hurdle free pass by. Now the onus is on all the right thinking individuals and organizations to confront this bill with logic and pave a possible way for giving justice for Muslim women in real terms.
(Dr Shabana Kesar Suri, Asst Prof. Dept of Women Education, Maulana Azad National Urdu University, Hyderabad can be reached at sabasuri@gmail.com)