If I asked a large group of men whether most matrimonial laws were being abused against men, I suspect the answer would be a resounding “yes”. If I asked the same group if marital rape should be criminalised, the answer would be a near-unanimous “no”. Last year, I had argued that marital rape should be criminalised, and received tonnes of angry feedback saying: It would be a terrible idea to bring the State inside the bedroom. Did I want to destroy the institution of family? Women could seek divorce if they are being raped. There will be a flood of innocent men being thrown into prison if marital rape is criminalised…. And so on.
I suspect the people making the above arguments will get their knickers in a twist when they hear about the Bill that the Narendra Modi government introduced in the Lok Sabha on Thursday, which the lower house passed – ostensibly out of concern for women whose husbands abandon them. The Bill intends to criminalise the practice of triple talaq. One would think there was no need for this because the Supreme Court of India has already held that triple talaq is void. The government, however, is arguing that since the practice continues despite the apex court judgment, making it a crime is necessary.
A day after arguments were concluded in the triple talaq case this year, I had written a piece criticising all political parties for pandering to regressive religious sentiments; criticising the media for creating a discourse demonising Muslims; criticising the court itself for not outlawing polygamy and nikah halala (and for not declaring that all personal laws must be consistent with fundamental rights); criticising the BJP for its motives behind its stand on triple talaq; and finally, arguing that no matter what, the Supreme Court must hold that triple talaq was unconstitutional. I feel the need to re-state that I had written this because we live in a time where everything is black and white. So any argument pointing out that there is something wrong with a law dealing with triple talaq is likely to be construed as supporting the practice of triple talaq itself. And lastly, being seen to be speaking in ‘favour of’ Muslims has become a crime bigger than all others.
The Bill criminalises “Talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”. This is absurd, because after the judgment of the Supreme Court, there isn’t any form of talaq which has this effect. Even the bill in question declares that the declaration of triple talaq will be “void” i.e. have no effect. The act has been made cognisable and non-bailable, and inviting a fine and imprisonment which may extend up to three years. A cognisable offence is one in which a cop does not need a warrant to make an arrest. Any information from any source and/or her own beliefs are enough for her to make the arrest. And non-bailable means that only the appropriate court will be able to grant bail to the accused.
So the government intends to pass a law where Muslim men can be thrown behind bars for pronouncing words which have no effect or, let’s say, for abandoning their wives. Even if a disgruntled neighbor, a bigot or a mischief-monger tells the police that a man has pronounced triple talaq, this would be sufficient to throw him into prison. Does this seem reasonable to you?
Is the government doing this out of concern for women? I may have believed that if it was as keen on criminalising marital rape, or decriminalising Section 377, or removing from the law books the remedy of “restitution of conjugal rights”. Then why is the government doing this?
The reasons are clear to those who want to see. Criminalising triple talaq serves several purposes. It is a leap forward towards the goal of reducing a section of Indians to second-class citizenship. It takes the campaign to demonise Muslims one step forward (the most recent incident being Ahmed Patel = Muslim = Pakistan = shock, horror!). It diminishes their freedom since they will now live not only in fear of being lynched but also in fear of being thrown behind bars for no fault. It gives the State extraordinary coercive power over Muslims and amplifies the overall environment of fear this government has set as the most important item on its agenda. It is also a politically low-hanging fruit because the BJP knows that no political party can dare criticise the Bill too much, lest it is seen as ‘favouring Muslims’.
The BJP has everyone believing that the moment they go out of power, India will become an Islamic state. The fact that this did not happen in the last 70 years is something everyone conveniently chooses to ignore. Is instant triple talaq a horrible thing? Sure. Should it be criminalised? No, that would be a remedy extremely disproportionate to the wrong. If this move of the government is going to have your support, go ahead. But let us not pretend it has anything to do with the well-being of women. Let’s not delude ourselves. Let’s not be fooled.
An edited version of this article was first published in Mumbai Mirror