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Triple Talaq

Triple Talaq

If I am stupid enough to utter triple talaq to my wife, it would only evoke a good laugh from her. That is because such a talaq has no legal sanctity. The same is the case if a Muslim man says triple talaq to his wife. The law of the land, as decided by the Supreme Court in its abundant wisdom, is that triple talaq does not “un-wife” a Muslim woman. She will continue to be the man’s wife with all the attendant legal and conjugal rights a Muslim wife enjoys.

Given this simple fact, I find it curious that the Modi government wants to enact a law that criminalises triple talaq and send the man to jail for three years with little chance of a bail. Its efforts to pass the law have so far been in vain but I would not be surprised if it comes up with an ordinance to enforce the law, passed by the Lok Sabha and stuck up in the Rajya Sabha.

I heard Modi and Co. shedding crocodile tears over the plight of Muslim women. The BJP got into the act allegedly following a letter the Prime Minister received from a Muslim woman. She wrote to him that she was triple-talaqed by her husband who did not want her as his wife after she gave birth to a third daughter.

The letter was certainly moving. Who would not sympathise with a woman who is punished for producing a daughter, not a son, when the little somatology that I know suggests that it is the man who is more responsible for the sex of his child than his wife? 

Modi could have written a polite letter to her that as the Supreme Court has already invalidated triple talaq, she still remained the wretched man’s wife, entitling her to all the conjugal benefits, including another possible conception.

Instead, he used the letter to sharpen his argumentative skills to demonise triple talaq during the last UP Assembly elections. It is said that his campaign yielded electoral dividends enabling the BJP to win even Muslim-dominated constituencies. Some say it was the tweaking of the electronic voting machines that helped the party win those seats.

Whatever be the truth, the legislative attempt to criminalise triple talaq is flawed. Unlike Hindus and Christians whose marriages have a religious connotation and are, therefore, believed to be decided in heaven, the Muslim marriage is the result of a civil contract. A Muslim man and a Muslim woman decide to cohabit to raise a family and there is no third-party intervention. In the case of Christians, who marry in the church, the marriage is not a contract but a sacred sacrament.

The proposed law is stupid because it seeks to punish a person for his intention than for his act. A person can be booked for theft only after he commits theft. He cannot be legally dealt with if he publicly says that he wants to steal some property. Similarly, a person cannot be punished for his desire to murder a person. However, in the case of triple talaq, which is now legally untenable, the Muslim man can be sent to jail for three years.

Even when the man goes to jail, the woman in question remains his legally-wedded wife. So he is being punished for a crime that he never committed. Modi’s law is draconian, as it is not mandatory for the wife to make the complaint against her man. Anyone else, including a sacred Sanghi, can complain to the police that he heard the Muslim man pronouncing triple talaq. Once the complaint is received, he would be sent to jail and only a competent judge would be able to hear his bail plea.

The poor man will have to prove that he did not say triple talaq. By the time he is able to convince the court, many months would have passed and he would have suffered enormous loss in terms of personal prestige and money. If he is a government employee, he would have even lost his job. 

If, suppose, a mischievous person uses a Muslim man’s mobile phone to send an SMS to his wife saying “talaq, talaq, talaq”, there would be incontrovertible evidence against him to prove his culpability. No court would believe the Muslim husband that another man had borrowed his phone to make a call and, instead, sent an SMS to his wife to fabricate a case against him. 

The proposed law is bad in many other respects as well. Men and women do many things in anger. It was in anger that a saint cursed Shakuntala, as a result of which she did not get the company of her husband during her pregnancy. By the way, India got its name Bharat from her son’s name. 

Once the anger is gone, people repent what they did in the course of their anger. However, Modi’s law does not give any scope for reconciliation or repentance! If, suppose, a man says triple talaq in anger, the proposed law makes the so-called divorce an irreversible act. In the ordinary circumstances, elders in the family or community can use their moral authority to persuade the man to reconsider his decision to divorce his wife. 

There are countless couples in all communities who at one time or the other wished to have a divorce but in the end decided to stay put with their spouses because of the hassles of divorce and the stigma associated with it. 

I remember a well-known Christian school in New Delhi expelling a girl student once the management realised that her mother was a divorcee. When the Hindustan Times carried a report on the school’s decision, the school proprietor approached me to contradict the story. I could not help him as he, not the child or her mother, was at fault. 

Under the Triple Talaq Bill, the possibility of reconciliation is ruled out as the man would immediately go to jail once he is charged with saying the word talaq three times to his wife. He will no longer be accessible to the family or the elders, as he will be in jail.

In the Indian context, most married women are dependent on their husbands for their livelihood. Once the man goes to jail, who will support his wife and children? I did not find any provision in the law under which the national exchequer would meet their financial needs so long as the man remains in jail.

Assume that a man goes to jail for three years. If, after returning from the jail, he refuses to take care of his wife and children, what can the mighty Indian state do against him? He cannot be punished again because a person cannot be punished twice for the same offence. The victims will, again, be the woman and her children. 

In India, the condition of an overwhelming majority of Muslims is worse than that of Hindu Scheduled Castes who at least are entitled to the benefits of reservation in jobs and school and college admissions. 

Is triple talaq a big menace as has been made out by Modi and other BJP leaders? They want to enact the law to uphold gender equity in the country. Are Muslims the villain of the piece?

In terms of gender equity, India’s position in the world is worse than that of Bangladesh, which is a poorer country. Is it because of Muslims? A  World Bank study found that every year over 2.5 lakh female babies were killed in India because of their gender. How many of them were Muslim babies? The government needs to address gender equity issues but not by criminalising triple talaq.

Take the case of a prominent BJP leader. He did not divorce his wife. Nor does he allow her to enjoy the benefits of married life. His act can only be described as desertion of his wife. Had he attempted divorce, he would have realised how difficult it was to divorce his wife. Is deserting a wife a lesser crime than uttering triple talaq? 

Now the question, does divorce happen more among Muslims than among Hindus, Sikhs,  Parsis, Jains and Christians? There is little evidence to prove that. True, if a Muslim couple wants to separate, they can easily do so because they were united under a contract.

The church does not accept divorce.

Even when a Hindu husband and wife decide to separate legally, they have to wait for a long period to obtain a favourable decree from the court. In case one contests the decree, the divorce can even take decades.

Triple talaq is not accepted in some Islamic countries like Pakistan, as pointed out by the likes of Modi but, then, Pakistan is not the model that we need to follow. There were many Muslim women who were victims of triple talaq. The same can be said about many Hindu women who are unable to come out of difficult marriages because the divorce law is strict and  cumbersome.

Muslim women are often portrayed as victims of oppression and inequality. The fact is that they enjoy better rights to property than Hindu women. Female foeticide is so rampant in India that there are only 866 female live births in Haryana against 1000 male live births. In the same state, the sex ratio is much better in the Muslim-majority Mewat region. Is not there something to learn from the Muslims on how they treat their womenfolk? 

The Sangh Parivar perpetuates the myth that every Muslim has four wives and each woman produces babies like a particular four-footed animal. How farcical the argument is! For every Muslim to have four women, there should be 4000 Muslim female births against 1000 Muslim male births.

The fact is that every Muslim man cannot marry because men outnumber women. I grew up in a Muslim locality where there was not a single case of a man having four wives. It is often touted that 90 per cent Muslim women want abolition of triple talaq and the freedom their husbands enjoy to marry four times. It is forgotten that 99 per cent or more Muslim women live in monogamous relationships.

As a Muslim friend once quipped, "Muslims are so poor that they cannot afford to keep one wife, forget having multiples of them". In Bihar where I lived for 10 years I came across many highly qualified Hindu men who married a second time because they were not satisfied with the illiterate girls they were forced to marry at a young age.

A Union Minister who has a former air-hostess as his second wife had abandoned his first wife who lived in a Dalit basti in Vaishali in North Bihar. DMK leader M Karunanidhi did not keep any secrecy about his second wife. What is not realised is that a Muslim's second wife is entitled to some rights whereas the second wife of a Hindu has no such rights because the second marriage is not legally valid.

Also, people forget that when a Muslim man joins a government service, he forfeits the right to marry a second time because he is covered by government rules. He can do so only at the cost of his job. In other words, the personal laws are not sacrosanct as decided by the apex court in case after case.

For every Muslim woman who allegedly suffers  from the rigours of triple talaq, there are several non-Muslim women who feel suffocated in terrible matrimony. Does the government have any plans to alleviate their suffering?

For the BJP, which laments over the fate of Muslim women, triple talaq is an issue that polarises voters. It is the same party which did not field a single Muslim in the recent elections in Gujarat, although Muslims constitute 10 per cent of the population in the state. 

What Modi’s legislative attempt teaches is that a Muslim man would do well not to pronounce triple talaq and risk going to jail for three years. If he is sensible, he should desert his wife, join politics, win elections and hold high offices like that of the prime minister. Yes, desertion, not divorce, is more acceptable in the New India that Narendra Modi has been busy ushering in.

ajphilip@gmail.com

(Published on 08th January 2018, Volume XXX, Issue 02)