Will making the husband a “criminal” bring justice to Muslim Women in India?
Exactly on this date after three months when the verdict of the historic Shayara Bano case was pronounced by the honourable Apex Court declaring the practice of “Triple Talaq” unislamic and arbitrary, the Central Government announced that it is going to make legislation of making “triple talaq” an offence. Now as a lawyer and a researcher in criminal law, I was wondering what is going wrong with the government. If they were so concerned with the deplorable state of Muslim women in India they should have taken initiatives to educate her upon the rights guaranteed to her under the Constitution as well as Sharia instead of making such jokes.
Now let me first speak from the criminal law aspect on this issue. Imagine if an uneducated unemployed Muslim women who is a mother of three children getting divorced by Triple Talaq by her husband who is not aware that he is not supposed to divorce her through triple talaq (as the illiterate husband will neither understand what the verdict says because for him it has been a valid practice from centuries nor he will believe what Supreme Court says unless he is convinced by the concerned Ulema, whom he believes to be having the last word relating to religious affairs). Here as a lawyer for the destitute wife and children, I would not advice them to go for a criminal case against her husband and have the joy of seeing her husband behind the bars, even that will take years as we have an apocalyptic criminal justice system! Instead I would look out to give them any form of monetary relief from the existing legal system so that they won’t die out of hunger. This is the reality of the majority of Muslim women in India who are the victims of an institutionalised harassment.
Neither the community nor the State could rescue them because of the constructed vulnerability made by the patriarchy. Here the government who is trying to criminalise this practice forgot one thing; we are speaking about those Muslim women who can never imagine coming out of the shackles of poverty and isolation once they speak against strained marital relationships. The involuntary consent the Muslim women give from the marriage to marital sex to having children to divorce cannot be ignored.
She is voiceless and she will remain voiceless as all her doors are closed owing to poverty and illiteracy. So the government should come out of blindness and understand the reality that the distorted criminal justice which presumes the innocence of the accused till proved beyond reasonable doubt cannot be a pill to cure the strange practice of triple talaq. Even if the proposed legislation shifts the onus on the accused husband to prove his guilt, the dominant party will definitely resort to intimidation and threat, whereby the poor Muslim wife can never win the expensive and formalistic legal battle. Here the government should make sure her vagrancy is removed through adequate social measures instead of spending their time and energy for making paper tiger laws.
Now leaving apart the criminal theories and anticipations one should not forget that the entire subject that we are discussing here is about the sacred institution of marriage built on love and trust. When it comes to dissolution of Muslim marriage, Islam is very clear on this point. A very erudite discussion can be gathered from the verses of Holy Quran, based on which the majority judgment made Triple Talaq unislamic in Shayara Bano case. Yes the scope of reconciliation should always be open in every strained marital relationship according to Quranic injunctions. Now if the husband is punished as a criminal for triple talaq, unfortunately the rarest chance of reconciliation will fail as it is all about revenge and honour. Thereby such radical step to criminalise the husband will make more chaos in the life of the poor wife rather than bringing any positive change.
This does not mean that the husbands cannot be punished for their mistakes; it simply means that the very fruits of justice will be denied to the estranged wife owing to isolation and stigma which still persists in our society. Now what is the way out is nothing but internalisation of the true law of talaq amongst both men and women.
This definitely requires time and patience as the deceptive religious heads and allies should wake up with a will to make the true spirit of Islam in all spheres of practical life so that our sisters and mothers would not become victims instead heroines of their life time. If Ulema and the community gears up and disseminates the right message there will be massive change in the Muslim women who will stand up against atrocities and will gain strength to fight for their Constitutional and Shariat rights.
(The author is an advocate and practices in the Supreme Court. The views expressed are her own)