Tuesday, January 2, 2018

Abolition of ‘Triple Talaq’ and Uniform Civil Code*

Motiur Rahman Khan

A Bill proposing criminalization of Triple Talaq has been passed by the Lok Sabha on December 28, 2017. Draft Bill known as, 'The Muslim Women (Protection of Rights on Marriage) Bill 2017' is prepared by Ministry of Law under Ravi Shankar Prasad. The Bill seeks to ban pronouncement of talaq in one sitting orally, electronically or by any means whatsoever.  The objective and justification for the Bill has also been listed by the Minister, where it is said that even after Supreme Court's verdict against the practice, incidents of triple talaq have come to notice. Hence, the government, to curb the practice and to do gender justice to the Muslim women has brought this Bill, which criminalises the practice of talaq-i-bidat and makes it a cognizable and non-bailable offence with a jail term of upto 3 years.  

So, where is the problem? 

The Bill has been drafted as if the Minister is making a multimedia campaign for some election. A video surfaced during Gujarat elections, where a scarf clad Gujarati Muslim woman hailed the decision of the Modi Government to ban this practice of 'talaq' and ask the men from the 'qaum' (community) to go away from her, who were seeking her vote in the name of 'qaum'. The video portrays that Muslim women are potential voters for the BJP and Muslim men are basically enemy of that potential voter. Jut like the BJP itself, the Bill too treats Muslim men as if they are the enemy of the women of their own families and only the state can protect them from outside. The Bill makes the practice a cognizable and non-bailable crime!  What does it mean?  A cognizable crime invites an investigation without permission from the magistrate; the police officer can make an arrest without warrant. Whereas, a non-cognizable offence is considered to be private wrong, the aggrieved party needs to file a complaint before a magistrate and then it is upto the magistrate that he orders arrest and investigation of the matter by a police officer. So, this practice of triple talaq has been placed with rape, murder and theft.  Till now, the matters related to marriages enjoyed judicial oversight on the rationale that the outside world should not punish an errant husband if the wife does not want her husband to be punished (of course, if it is not a matter of physical harm). This can safely be concluded from the fact that the man cannot be punished for bigamy under IPC 494, unless the first wife or her relatives complain before a magistrate against the man. Similarly, under Section 376B of the Indian Penal Code, which makes the act of a husband raping his wife while they are separated a cognizable offence, but that can be prosecuted only if the wife or her relatives lodge a complaint[1]. If this Bill is passed, a Muslim married man can be arrested and kept in jail without the consent of his wife. 

Interestingly, the Bill says that the method of pronouncing three talaq at one sitting is void and illegal, which means that, if a husband chooses this method for divorcing his wife, the divorce, in first place does not take place. And the husband, according to the Bill shall be punished (for upto three years and fined) only for pronouncing the word ‘talaq’ three times. This means the man still is the husband of the woman. It is unlikely that the magistrate would be able to enforce the maintenance of the wife and the minor children, of whom custody is with the woman, on the husband who will be in jail for uttering that ‘criminal’ word three times. Further, it is unlikely that on completion of his jail term, the man who was sent to the jail on the complaints of his wife would like to continue his marital life with the same woman. It seems, then, the men will prefer abandoning their wives than divorcing them, which will further complicate the life of the woman, who will not be able to marry afresh.[2]
The draft of the Bill sees Muslim men as an outside enemy of Muslim women and has given no regard to the fact that men are part of the family itself. The law must be formulated keeping in mind the whole community and all the stake holders must be taken into account. It is unfortunate that Bebak Collective, the women organisation who were among the parties in the case, in which the Supreme Court held the practice of triple talaq illegal, were not consulted in drafting the Bill. The Organisation is correct in saying that the talaq will happen even if not instant, on the whims and fancies of the husband under the Shariat Act 1937. What can be done for justified and equal treatment of women in the matter of talaq is that the Dissolution of Muslim Marriages Act 1939 be amended. The Act requires Muslim women to approach the court for divorce. By amending this Act and making it gender neutral, the problem of whimsical divorce by men can be curbed. ‘The Dissolution of Muslim Marriages Bill, 2016’ was tabled on 5th August, 2016 but nothing has happened till now. The Bill must make it mandatory for men to go to Court for seeking divorce.

It is interesting that the present government is trying to implement ‘true’ form of sharia by weeding out the laws which are ‘biddat’ (innovated later on). One may argue that the Bill has been brought on suggestion of the Supreme Court’s Judgement, but the apex court had to decide the matter within the existing laws. Bringing this Bill had no urgency and they could have found the immediate legal remedy for whimsical divorce by expediting the passage of ‘The Dissolution of Muslim Marriages Bill, 2016’.

Why not Uniform Civil Code?

The BJP has always been advocating for the Uniform Civil Code in place of different personal laws—Hindu Personal Law, Muslim Personal Law, Parsi Personal Law, Christian Personal Law and Portuguese Personal Law and many more. When the Modi government first came to power with overwhelming majority in 2014, people were hoping that the BJP will do something in this matter. At least a Joint Parliamentary Committee or a Committee of legal experts was expected from the present regime. But they, instead chose to target Muslim law and that too with a narrow vision of fulfilling their immediate desire of mobilizing Hindus on communal lines by showing them that the present regime is acting against the ‘privileges’ enjoyed by the Muslim men—of keeping four wives, divorce on their own whims and fancies, no alimony and maintenance to the wife after divorce etc., which the Hindus can’t enjoy under their Personal Laws.  For ‘enjoying’ these ‘privileges’ Hindu men need to convert to Islam like film star Dharmendra did to marry actress and now BJP Loksabha MP, Hema Malini (also converted to Islam to marry Dharmendra) and the recent high profile drama where Haryana, EX- Dy. Chief Minister Chandramohan had to convert to Islam to marry Anita Bali (Fiza Mohammad). Alternatively, Muslim men’s ‘privileges’ should be curtailed to gratify Hindu men’s desire of equality with the Muslim men in not enjoying those ‘privileges’. And this can be done by converting or rather purifying them by ‘shuddhikaran’ to Hinduism. The latter act is being aggressively performed by the politically backed hooligans on a regular basis these days. What the present government is now trying to do is that they want to ‘free Muslim women’ from Muslim men so that it can actually serve two supposed purposes; Hindu men can feel relief that their Muslim counterparts are now in worse position as against theirs and secondly, the Muslim women will vote for the BJP and will not listen to their men in voting. (if this is true, I feel pity for the people who call themselves think tanks of the BJP!)

But why this change of heart, when they could have done a great service to the nation by implementing Uniform Civil Code, a dream of our founding fathers of our modern nation? It seems the legal experts have seriously advised the BJP that this is not an easy and simple task. Implementation of Uniform Civil Code requires a uniform set of laws by removing a number of laws prevalent in India to maintain its diversity, uniqueness of different cultures and landscape.

Laws guaranteed by Political Cession Treaties of different states into the Union of India cannot easily be dissolved to pave the way for the Uniform Civil Code, such as Pondicherry Customary Hindu Law (and the Pondicherry (Extension of Laws) Act, 1968, sec. 3 and Sch which gives uniqueness to the Union Territory of Pondicherry) and which is guaranteed by a treaty between Government of India and the Government of France dated 21-10-1954, after which the erstwhile, French Settlement of Pondicherry, Karaikal, Mahe and Yanam was annexed to India. Similarly, Article 370 and 371 (A) of the Constitution of India allow considerable autonomies to the states of Jammu and Kashmir and Nagaland[3]. Under these Articles of the Constitution (which were added later on to accommodate these states and their uniqueness, when they were made part of the Union of India), any law to come in force in these states needs to be passed by their respective legislature. Similarly, Section 42 of ‘The Manipur (Courts) Act 1955 provides for deciding ‘questions regarding succession, inheritance, marriage or caste or any religious usage or institution’ according to their personal or custom laws.    

Apart from the personal laws based on religion, several district level Customary Laws are prevalent in India. These laws, many a time, are given precedence over communities’ religious laws in the matters of inheritance, marriages and adoptions. Gujars, Meos and several other tribes/castes have their own district-wise customary laws of inheritance and marriages.[4] Uttar Pradesh (erstwhile, United Province and Oudh) has its own Rawaj-i- ‘aum, which is given precedence in the matter of inheritance and succession. Madras and Bombay Presidency High Court Acts provide for ‘giving preference to Customary Laws in Succession and marriage. Hence, many Muslim Communities like, Khojas and Kutcchi Menons are governed under their customary laws which are contrary to the Sharia Laws. Mapillas (Mopla Muslims) of north Malabar region are governed under Marumakkathayam law (Mappilla Marumakkathayam Act, 1938), a system commonly associated with the Hindu Nayars and Tiyyans and based on Mitakshara Law[5].      

Despite the fact that replacing the above personal and customary laws with a Uniform Civil Code is a herculean task, the modern state should try to hold negotiations with the peoples and formulate such a law—one and uniform, which can be acceptable to all the communities to eradicate gender injustice and for promoting individuality. This will pave the way for equality in all senses. Tax benefits to the Hindu Undivided Family will either be extended to Muslims, who still practice joint family or will have to be abolished. Peoples—Hindu, Muslim, Christians, Parsis and Jains will be replaced by citizens, thus the state will only recognise its citizens not their religions, which will result in amendment of ‘The Constitution (Scheduled Castes) Order, 1950 which will abolish the bracket of religions under which a Muslim or a Christian cannot avail the benefit of SC reservations at present. Therefore, the discrimination on the basis of religion will get eradicated automatically. At present, the sweeper caste of Muslim comes under Other Backward Castes, whereas their Hindu counterparts come under Scheduled Castes. This will change.

Muslims, as a community should give up their irrational and unchanging attitude, especially those who consider themselves to be the guardian of the Muslim umma. Islamic civil law (of Shari ‘a) has enough flexibility and it can accommodate and adjust itself to give rights to its own women-folks, especially in matters of marriage and divorce by preparing a standard Nikahnama, which can empower women by including conditions like:

A. Annulment of marriage by a decree of Court
B. Condition of monogamy on husband
C. Conditions against domestic violence
D. Some of the conditions which are enumerated in Dissolution of Muslim Marriages Act 1939 under which a Muslim woman can approach the court for khula or dissolution of her marriage, can also be included here.

The first three conditions were a general feature of the medieval nikahnamas (marriage contract papers).[6] It is unfortunate, that with the passage of time instead of moving forward in the direction of equality of genders we have actually undone the achievements of the past. Islam was the first religion which provided a share in ancestral property for women, though half of what her brother gets. But, unfortunately, even this share has been denied to them in modern times. The clerics and their different groups cannot claim themselves to be the true upholders of the Shari‘a. Have they ever raised their voices loud enough to amend Section 2 of ‘The Muslim Personal Law (Shariat) Application Act, 1937’, which limits its (shariat) application in the matter of inheritance in ‘agricultural land’? This particular, section of the said Act has barred women from inheriting their rightful share (which Muslim shariat guarantees them) in their father’s land, even when a great chunk of the inheritable property is still in the form of land for the large part of the Muslim population. Whatever women have inherited in their fathers’ property—known as dukhtari, is due to the prevalence of the customary laws of different communities within the Muslims.         

The author is Assistant Professor, Department of History in P.G.D.A.V (E) College, University of Delhi 

* All the Acts/Judgments cited in this article are available at www.indiankanoon.org
[1] Abhishek Sudhir, ‘The triple Talaq Bill is hasty, impulsive and cruel—much like the act it seeks to criminalise’, https://scroll.in/article/862502/the-triple-talaq-bill-is-hasty-impulsive-and-cruel-much-like-the-act-it-seeks-to-criminalise accessed on December 26, 2017
[2] Faizan Mustafa, ‘Legal Excess: The triple talaq bill is a textbook case of overcriminalisation’, http://indianexpress.com/article/opinion/columns/triple-talaq-bill-passed-parliament-lok-sabha-legal-excess-5002913/ accessed on January 01, 2018  

[3] See further on UCC, ‘The Nagaland turmoil shows why a uniform civil code is neither possible nor desirable in India, https://scroll.in/article/829884/the-nagaland-turmoil-shows-why-a-uniform-civil-code-is-neither-possible-nor-desirable-in-india’, accessed on December 28, 2017.

[4] For a detailed study of Customary Laws of erstwhile territory of Punjab see, Digest of Customary Law, http://punjabrevenue.nic.in/cust20.htm, accessed on December 27, 2017 
[5]  A Haberbeck, Muslims, Custom and the Courts (Application of Customary Laws to Mappillas of North Malabar, Khojas and Cutchi Memons), Journal of the Indian Law Institute, Vol.24, no.1, pp.132-158, available at accessed on December 27, 2017.
[6] Several Nikahnamas of Emperor Shahjahan’s time are preserved in Blochet Supplement, Bibliotheque Nationale de France, Paris, for the English translation see, Shireen Moosvi, People, Taxation, and Trade in Mughal India, Oxford University Press, 2008, p. 276  

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