Tamil Nadu’s ruling party
AIADMK says it will not support the Triple Talaq Bill brought by the government
in its present form.
They are demanding to remove
the clause from the bill that criminalises instant triple talaq and has
provisioned a jail sentence for three years.
In addition, the proposed bill,
the Muslim Women (Protection of Rights on Marriage) Bill 2017, also makes the
practice of instant triple talaq non-bailable and cognisable offence.
BJD, the ruling party in
Odisha, is opposed to the bill as its feels there are several flaws and
internal contradictions and needs amendment. The party like many others in the
opposition camp including Congress, are questioning the provisions on
criminalisation and jail term.
CPI-M says the move by the
government is ‘unwarranted and politically motivated.” Its MP Mohammed Salim
said, “When the Supreme Court has already banned the triple talaq, there is no
need to bring such a law. If divorce has not happened in the first place, where
does the need to criminalise the act arise?”
AIMIM’s Asaduddin Owaisi is
outrightly dismissive of the bill saying it violates the Fundamental Rights and
is also legally inconsistent. He even moved a notice in the Lok Sabha to oppose
the bill.
Parties like SP, BSP and RJD
are also opposed to the criminalisation provision, a principal demand of
Congress, the largest block in the Rajya Sabha, along with the BJP. Both
parties have 57 RS MPs each.
And they all are doing so to
address their political constituencies. But does it really help? History tells
otherwise.
THE SHAH BANO CASE
Shah Bano was 62 when she
filed a court petition in Indore in April 1978 demanding maintenance from her divorced
husband, a well-to-do lawyer, for herself and her five children, two daughters
and three sons. The divorce was not final yet as per Islamic law. Shah Bano demanded
her right to alimony, Rs 500 a month, for subsistence under the Section 125 of
the Code of Criminal Procedure (CrPC) 1973 which deals with maintenance issue
of wives, children and parents.
Her husband had thrown her
out and was staying with his second wife. After he stopped giving the promised monthly
maintenance sum of Rs 200, Shah Bano was forced to approach the court in April
1978. Irked by the move, the husband made the talaq irrevocable in November
1978 and claimed he was not liable to pay any monthly subsistence as per the
Muslim personal law and what all he owned to Shah Bano was Rs 5400, the amount
according to their marriage contract or Mehr.
Shah Bano won, both from the Indore
local court in August 1979 and from the Madhya Pradesh High Court in July 1980.
After the local court found that a meagre sum of Rs 25 a month was enough for
her and her five children, she filed a petition in the high court to revise it.
The high court upheld the lower court order and raised the monthly maintenance
to Rs 179.20 a month. But it was still a mere pittance, much lower than Rs 500
a month demanded by Shah Bano.
Shah Bano’s husband immediately
moved to the Supreme Court against the high court order. The first hearing in
the Supreme Court took place in February 1981. They referred the case to a
larger bench. Soon the case acquired a much larger social canvas with Muslim
bodies like the All India Muslim Personal Law Board (AIMPLB) and the Jamiat
Ulema-e-Hind joining the case intervenors.
The matter was finally heard
by a five judge bench of the Supreme Court. The Justices included India’s 16th
Chief Justice Y V Chandrachud, Justice Jangnath Misra, Justice D A Desai, Justice
O Chinnappa Reddy and Justice E S Venkataramiah.
They delivered a landmark
ruling on 23 April 1985 that not only upheld the high court verdict but also
opened the way for awakening among the Muslim women, to raise voice against
their commoditization and secondary status, in nuptial agreements, in family
and in society. The long fight that has resulted in the Supreme Court banning
the practice of instant triple talaq and the government coming up with bill to
make it a criminal offence is a testimony of that awakening as the fight was
spearheaded by individual Muslim women and Muslim women organizations.
RAJIV GANDHI’S SURRENDER
As was expected to happen,
the Supreme Court verdict created a storm. The Muslim clergy vehemently opposed
it. They took to streets terming the judgement an encroachment upon their
personal laws governed by the Shariat. Political overtones of the protests were
so strong that the Rajiv Gandhi Government had to surrender finally. It enacted
a law in May 1986 that overturned the Supreme Court decision.
THE PRICE CONGRESS PAID – BUT
HAVE OTHERS LEARNT FROM IT?
The way Rajiv Gandhi
surrendered before the compulsions of appeasement politics and overturned the
Supreme Court ruling on a social malaise that was affecting and afflicting
millions of Muslim women, it sent out a message that the government of the day was
ready to go to any extent to save its votebanks.
The move by Rajiv Gandhi sent
a powerful message that the Congress government that was totally appeasement
centric and if it could overturn a historic decision of the top court of the
land to appease the minorities, it could never be friendly to the interests of
the majority. And there were many takers for this perception.
Senior BJP leader L K Advani,
deposing before the Liberhan Commission on Babri Mosque demolition, in fact counted
the Shah Bano case as one of the three factors that led BJP to launch the
movement for Ram Mandir construction in Ayodhya, “If the Shah Bano episode had
not taken place, if the Government had not actively participated or facilitated
the shilanyas or opened the Ram temple gates, may be this would not have
weighed with us when we were thinking of the Ayodhya Resolution in 1989.”
The step that Rajiv Gandhi
believed would pay political dividend, in fact, proved a major drag on his
legacy and the political dividend instead went to parties like BJP and Shiv
Sena. Congress started shrinking and BJP started growing. And the consequences
are there for everyone to see today. BJP is now in 19 states while Congress has
shrunk to just four and the party has come down to a historical low in its Lok
Sabha representation. It could win just 44 seats in the 2015 General Election.
And Rajiv Gandhi did it for a
social malaise that that had made lives of Muslim women a hell. 95 per cent of
the arbitrarily divorced Muslim women don’t get any compensation or maintenance
from their husbands, a survey by the BMMA reveals. The BMMA survey also says 92
per cent Muslim women want triple talaq banned.
The Lok Sabha where BJP and
its allies are in absolute majority passed the bill to ban instant triple talaq
on 28 December. Now the Rajya Sabha will take it up on 2nd January
for discussion and passage. If BJP and Congress can reach to a compromise, then
opposition by any other party will not matter.
And history says Congress
would not do so, reflecting in the fact that it was, in fact, a poorly calculated
decision by Rajiv Gandhi, even if under the pressure of Muslim clerics, that
became one of the rallying points for Hindutva politics.
Congress, it seems, has
learnt its lessons after paying a heavy price. But can we say that about others?
©SantoshChaubey
