OPEN LETTER TO HON'BLE PM
Respected Sir
On 30th July 2019 your government (govt.) could finally muster numbers for passing THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) BILL, 2019 in Rajya Sabha and bill is now a law, hereinafter called TripleTalaq law, after the nod of Hon’ble President. This is apparent that your govt. like others in the past used its brute force of majority in Lok Sabha and political maneuvering in Rajya Sabha to pass the bill in both houses without much deliberations. Despite data made available by NCRB over the years and still continue to point to gross misuse of existing gender-biased laws causing havoc in Indian society. Laws like IPC 498a, DV Act, 2005 are just couple of examples of gender-biased laws whose gross misuse has been pointed out by various courts of this country. Hon’ble Supreme Court went even step further to observe misuse as “Legal Terrorism”. When history would judge Triple Talaq law, gender-biased, it would not be about rights of Muslim women but its misuse.
This goes without saying TripleTalaq law is an addition to the existing pile of gender-biased laws, would sit at the top actually, staring in the eyes of men of this country in the name of women’s rights. Not just the TripleTalaq law gender-biased but targets particular community which is much worse. After years of fight by sufferers against existing gender-biased laws various checks and balances were put in place which arrested indiscriminate arrests of husbands and their dear ones on mere allegations of wives. But still full reprieve from arrests is far cry as pointed by NCRB data. With TripleTalaq law we are heading back to the era before 2014 when in-discriminatory arrests owing to gender-biased laws on mere allegations of wives were norm and shook the conscience of nation.
A lot was debated in both houses w.r.t to bill corresponding to TripleTalaq law. Both sides debated the bill from the perspective of rights of women but no one highlighted prospective misuse based on official data available of misuse of other similar kind of gender-biased laws. This was a blunder of monumental proportion. TripleTalaq law not only reaffirms talaq-e-biddat (instant talaq) null and void by legislative action already confirmed by Hon’ble Supreme Court but goes a step further to criminalize instant talaq. A simple reading of TripleTalaq law indicates that all a disgruntled wife or anyone in her blood relation has to do is to walk into Police Station and state husband has pronounced instant talaq on wife allegedly. Sufficient to say not just instant talaq pronounced by words has been criminalized but through electronic means as well. Draconian provisions of the TripleTalaq law are summarized below:
- Arrest of Husband.
- Bail of Husband without hearing wife is not possible.
- Only compounding can get early relief to husband accused of instant talaq.
- In any case custody of children would be handed over to wife plus monthly subsistence allowance.
Reading of above provisions would indicate criminal jurisprudence has been thrown out of the window. An alleged accused has a right to fair trail but if alleged accused cannot even get a bail without complainant being heard, which itself can be subjected to misuse by complainant for not being available on the date of bail, then getting justice can be forgotten too. Under the garb of TripleTalaq law other laws pertaining to custody of children and maintenance have been given skip too as wife would get subsistence allowance and custody of children without any consideration to merit.
In electronic form alleged instant talaq pronounced can be heavily misused and may result in conviction or total submission by husband because wife is expected to have access to electronic gadgets etc. of husband if living with husband
Just to summarize Tripletalaq law would become an extortion tool for disgruntled or adulterous wives or those needing just separation. It effectively, takes away right of a person to divorce by inculcating fear through criminal provision. Through this law much talked about fear of Muslim wife being given instant talaq has been transferred to husband which in no means can be called justice. This law is nothing but perfect revenge of a Muslim woman through State for practice which was medieval and not approved by Islam. Various Islamic countries have dealt with instant talaq in a much better way keeping it under the ambit of civil dispute. Laws of various Islamic countries must have been considered before drafting the bill which obviously was not paid heed to.
Your Hon’ble Law Minster’s defense of bill in Rajya Sabha was much shallow. To justify the bill he went through the history of law making and counted laws which made religious/societal practices null and void and criminalized them as well. Effectively, claiming that your govt. is well within right to do the same but wrong done in the past can never justify another wrong. Argument that legislature is there to legislate and courts to interpret doesn’t hold water either if data suggests that a specific category of laws has tendency to be misused historically. In that scenario, legislature is duty bound to take into consideration learning form past while drafting a law.
Existing TripleTalaq law is recipe for disaster for a Muslim community and sets a wrong precedence by converting Divorce, a civil matter, into criminal matter which may in future become applicable for other communities too. Through this open letter it is requested that a notification must be issued that checks and balances to stop misuse of law including but not limited to like Crime Against Women (CAW) cell process, mediation, CrPC 41a notice etc. kicks in immediately. In parallel laws of other Islamic countries to ensure rights of both the parties are secured without any prejudice must be studied and best provisions from those laws must be incorporated in TripleTalaq law. No doubt provisions of criminality, subsistence allowance and child custody from TripleTalaq law must be removed immediately.
MRA Tikloo
