When Supreme Court advocate Madhavi Divan presented Government of India’s stand on triple talaq before a five-judge bench, it caused a stir because never before had the Indian government been so emphatic in trying to end a centuries old religious practice. As the Rajya Sabha remained indecisive over the Muslim Women (Protection of Rights on Marriage) Bill, 2017, which would serve as a deterrence against the practice of instant triple talaq, The Sunday Guardian spoke with Divan on why instant triple talaq should be made a punishable offence. Excerpts:

Q: Why criminalise the civil act of triple talaq between man and a woman?

A: In a historic five-judge judgement, the Supreme Court bench struck down triple talaq. Today it is void, it is derecognised as a method of divorce. But the Muslim Personal Law Board—which claims it represents the interests of the vast majority of Muslims in this country—maintained very strongly and vociferously in court that this is a practice which is 1,400 years old. They elevated it to the status of a fundamental right. Given this background, and the fact that this practice, whether we like it or not, has been in vogue, how do you stamp it out? And even the fact that it has been stamped out in most other parts of the world, perhaps with the exception of Saudi Arabia—who again were not willing to give us in writing when we contacted them at the time, as to what their practices was. But we had documented the practices in most Muslim countries, including Arab countries—while appearing in the court—and it is derecognised in all those countries very clearly. So you can draw your inference. Even Pakistan and Bangladesh, with whom we share a common history, from 1961 itself derecognised and criminalised triple talaq.

Given the fact that the rest of the world follows these practices, in India there was such strong and angry resistance against derecognising something as egregious as triple talaq, so in that background how do you enforce this? It may be void in the eyes of law, but how do you enforce this on the ground? If a woman complains that look the husband issued triple talaq and no longer recognises me as a wife where does she go? How does she enforce her rights? How does she sort of get back her rights as a woman…married woman? The serious issue is the aggression with which this practice was sought to be protected.

How do you send out a strong message to society that there is going to be zero tolerance for this kind of thing because it is much more than the issuance of triple talaq? It is the threat hanging on a woman at all time.

The argument raised was how many cases of triple talaq are there…some people claimed it’s negligible. Well actually there are many more than we think. We had in fact relied on a 1997 report by the NCW. It was conducted by Syeda Hamid at that time. They had covered the length and breadth of the country and interviewed several women, who complained a lot against the practice.

What is much more important is the threat dangling over the head of a woman. It basically draws the lines for her within the marriage and it draws the lines outside. So she is constantly under that sub-conscious and conscious threat that “I have to know my limits because I know the consequences and it is very easy for the man to get a divorce.” So this is basically about 8% of India’s population, their choices within marriages, their choices outside whether to be educated, whether to get a career etc. It is dictating all those choices. First, we wanted to send the signal of zero tolerance and we needed implementation of the Act. For example bigamy under IPC is invalid. The law prescribes a punishment of seven years.

Q: But without any defined categories how will the magistrate decide issue of the child custody and subsistence money? It seems to be a bill made in haste. 

A: The emphasis is obviously that she is to be shown some favour when it comes to the custody of the children. And because of triple talaq issue she should not be denied custody even though under Muslim law the father is the legal guardian, but the mother has always enjoyed physical custody. The mother should not lose custody of her children. I was not part of drafting of the law. If I had been consulted on this I would have said that please protect her rights on the matrimonial home. The reality is that it is not only triple talaq, it’s triple talaq and polygamy which go together. You issue a triple talaq and tomorrow you get another woman in and you know it works very smoothly for the man, but what about the wife?

‘We forget that women are the biggest minority in the country. In the 1920s, Muslim women were better educated, on an average, than Hindu women. What happened? What left them behind? The new Act is going to empower women. You will find them joining the mainstream much more.’

Q: But her rights on her matrimonial home will continue because triple talaq is void so the marriage continues.

A: But who is to enforce that? Who is to enforce that between husband and wife? He’ll say sorry you’re not even my wife anymore. If the wife is thrown out of the house, somebody has to decide. We don’t have Sharia courts in our country, so it has to go to normal courts.

Q: In the real world, will a poor woman complain against her husband and send him to jail? 

A: I think women are far more intelligent, mature and wise than we give them credit for. Even poor and illiterate women are. See, it’s the husband’s word against the wife’s word. The husband is denying that “we are married any more”. He may turn her out of the house and say that “I am not obliged to do this or that or the other for you”. Therefore the idea is it should be weeded out of his head that this is an option for him, because he must know and fear the consequences. The new Act is to give her the tool, the upper hand in the marriage—that you better not terminate this marriage without following a proper procedure and if you do, I will have someone to turn to. Even a woman will tread with a lot of caution in sending her husband to jail, because she knows what the consequences are, whether social consequences or on her children, or practical consequences. The woman will think through. A woman is not so foolish that she will break up her home and her family just like that. The idea is that this should not happen, he should reconcile and say I am really sorry and I unconditionally apologise, I will take you back, I will do whatever I can, I will be a good husband.

Q: The deterrence can be there without criminalisation, if some kind of authority is created where women can go to instead of the police.

A: Then why is bigamy an offence under the IPC?

Q: You know something happening to the majority community and something to the minority are not the same.

A: You talk of minority issue. I think it is a gender issue. We forget that women are the biggest minority in the country. In Pakistan, more than 95% of the population must be Muslim, so everyone is one and the same law applies to them, by and large. In India you have around 15%-16% Muslim population. They are looking at everybody else. In 1920s, Muslim women were better educated on an average than Hindu women. What happened? What left them behind? The new Act is going to empower women. See the confidence with which they will come out. The Act will enable them not within the house, but you will find them joining the mainstream much more, and when a woman is empowered her family will be empowered, her children will be far more confident.

Q: What is the basis of compensation under this law?

A: What a man can afford. The kind of lifestyle she has been leading. She will say this is the kind of home I am used to, my children go to this school. We are entitled to this kind of lifestyle. He is earning so much. She will show this like any other woman.

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