The Muslim Women (Protection of Rights on Marriage) Bill -2017 : An analysis

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By Safi H. Jannaty

The debate on so-called Triple Talaq Bill has been as hazy as the content of the bill. Not only the political parties opposed to the bill understood it, but also, the Muslim leaders did not hit the right buttons.

A close observation of would reveal that on the face of it, the whole drama is being played before the eyes of over one billion people in the name of protecting the dignity of Muslim women. However, it is much more than what meets the eye.  The well calculated step is part of the larger sinister design to strip minorities in India of their right to practice, propagate and manage their personal affairs in accordance with their religions. The obvious target for now is the Muslim community; however, ultimately, other communities too will be forced to bear the brunt as there are concerted and concentrated efforts to shake and desecrate the pillars of secularism.   In fact, one must be deaf if one is not hearing the clarion call to tear down the cherished secular fabric of the Indian constitution.

The Muslim leaders and scholars have focused most of their attention to the politics involved in the issue and exerted their energy in highlighting the inequity and inequality insofar as the provisions in the the bill are concerned. Here too, the saffron party has succeeded in deviating the attention of the leaders from the core issue towards the political bubbles which burst out as quickly as they form.  Sadly, the community leaders and others have fallen prey to the devilish trap and perilously ignored the vicious agenda of the Hindutva forces which is diametrically opposed to secular ethos and religious freedom granted by the constitution, the sole obstacle in their way to convert the nation.

The so called ‘Protection of Muslim Women Act’, which has already been passed by the lower house of the parliament and will ultimately take the force of law regardless of its fate in the upper house of the Parliament, does not require any legal luminary or an expert to decipher its code and objective.  If seen in the light of the Supreme Court directives, which too are as superfluous as the proposed law, the sole purpose should have been to curb the so-called triple talaq practice observed erroneously by some sections of the community. Just a cursory reading makes one suspect the devious design hidden in the ambiguities surrounding the bill. It is aimed to cause commotion first and then use that chaos, misuse and misinterpretations to abolish the personal laws of different communities guaranteed by the constitution.  In broader sense, the bill is aimed to prohibit divorce by Muslim men by means of pronouncement whether verbal or written and here comes the caveat. It does not restrict the applicability of the law to cases where the husbands make divorce irrevocable by uttering or stating it three times in one go or in one sitting without following the norms and rules prescribed in holy Quran including the waiting period.  Although, for the purposes of applicability of law, it defines, divorce as ‘Talaq-e-Bidah, yet makes it ambiguous in the next part by adding a phrase ‘similar forms of divorce’. Further, and more importantly, in the main section, it prohibits and make all divorces pronounced by the Muslim men on their wives illegal and void without any explanation about the nature, means, kind or type of divorce. After terming the divorce pronounced by Muslim men on their wives illegal, it makes such pronouncements criminal offence with a provision of punishment of 3 years jail for the culprits. This punishment of jail sentence of 3 years is equal to the punishment prescribed by Section 498(a) of the Indian Penal Code for a husband or his relative who is found to be subjecting the wife to cruelty and there is a clear definition of cruelty in the section.  In view of the obvious and deliberate ambiguity in the law, all Muslim men found to be pronouncing divorce even by following the norms and rules prescribed in Shariat will be subject to imprisonment.

Legally speaking, the bill does not mandate or determine any framework or mechanism under which Muslim husbands and wives could separate.  From a religious point of view, undoubtedly, it is an open and clear trespass on religious domain which grants sanctity to the institution of marriage and families. When communities enjoy freedom to practice their faith and religion and when like other laws, Sharia is allowed to be applied on personal matters including marriage and divorce procedure and formalities, why should there be a legislation to cover personal law affairs?  The third section of one of the most succinct and most concise laws ever promulgated by India after independence, deals with subsistence allowance for women upon whom divorce was pronounced and that is set to be determined by a court magistrate who is also empowered to decide on the manner in which the custody of children be awarded to such women. The bill which can be reproduced on two sheets of paper ends with an objective statement which is as ambiguous and conflicting as the main part.

In short, the way it has been drafted, the bill which will soon take the force of law in the country, makes the State an ombudsman or rather god father to force Muslim couples live together despite differences, conflicts and incompatibility.  It brazenly overrides the clearly defined provisions of the Muslim Personal Law Application Act which has been governing the affairs of the community since 1937.   One wonders when Qazis or priests administer the oath or perform the rituals to bind couples together in marriage; how could it be left to the State or State appointed magistrate to nullify a divorce or determine subsistence or the custody of child or other issues related to separation and divorce.

In fact, the focus of the whole debate on the issue should have been on the present government’s agenda to abrogate the religious rights of the minorities and their overt interference in regulating the personal affairs of individuals.  While approaching the courts of law to challenge the validity and applicability of the law, the arguments should mainly target for explicit separation and exclusion of  divorces and separations done under the procedure and process prescribed in holy Quran which has no ambiguities whatsoever and which is followed in general by the vast majority.  It should also be argued that the magistrate or court official should have no role or power or jurisdiction to consider cases involving divorces occurring in the normal course and by following correct and unambiguous procedure and process. Failure by the Muslim leaders and other secular forces to have the law revised will further strengthen the agenda of the Hindutva forces to curtail the religious freedom in the country.

As the writer has rightly pointed out, the whole drama of shedding crocodile tears on the so called or rather self discovered plight of the Muslim women owning to incorrect practice of separation is indeed akin to the Nazis crying over the predicament of the Jews sent to the gas chamber. Only the people who have hearts in their chests can never ever forget the gory Gujarat genocide of 2002 perpetrated with the tacit involvement of the BJP government headed by Narendra Modi.  During the proceedings to prosecute the culprits, a sitting judge of the Supreme Court of India had aptly compared Modi with the Nero who sat quiet and untouched when the Rome was burnt and the people were roasted alive.

Narender Modi was so diffident and obstinate as not to apologize or say sorry even as a matter of courtesy that he chose to abruptly end an interview and asked the renowned journalist Karan Thapar to leave his office when he was cornered over his role in the genocide and the remark of the Supreme Court judge. The only analogy he could find later to express his empathy was to compare the killing of over two thousands innocent people with a puppy being run over by a car.  The whole purpose of such statements and acts was to project himself to the majority as their savior and crusader.  It is this  communal polarization that propelled him and his party to the seat of power. The party did not field single candidate from the Muslim community in any of the elections for the State Assemblies which shows nothing but utter disregard for the community and to reflect that they are better off without them.  Only a blind and an ignorant person could disagree with the writer about the atrocities and violence being perpetrated in the name of religion, be that attacks and killings over cow protection or the hatred and ruckus over love Jihad, one more misnomer though.  The sad part lies in the fact that reaction to such acts of terror and violence is getting very subdued  in the country due to indifference and silence of the media. At the same time, it is curbed and forced to precipitate in the thin air, again by the use of state machinery and judiciary.  Involvement of National Intelligence Agency (NIA) or the Central Bureau of Investigation (CBI) for political vendetta is becoming too common.  All these bolster the Saffron brigade to continue killings and violence to keep the minorities in a state of threat and terror.  It must be very difficult for people to believe that all these unsavory things are happening in the country which is known for its secular values and the fact that hundreds of heterogeneous communities lived in peace and harmony for centuries.  Not a single voice though, David Gross, a renowned American physicist and a Nobel laureate expressed his dismay over the rise of hatred in India a couple of days ago.

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