Almost 14 years ago, in a historic ruling of Shamim Ara v State of UP [(2002 (7) SCC 518] the Supreme Court declared arbitrary triple talaq invalid. It meant that even if the husband said triple talaq orally, over phone, email or fax, it would not dissolve the marriage. The woman continues to be his wife and can claim her right of maintenance or residence under the Domestic Violence Act (DVA), the same way women from other communities who faces desertion do. Sadly the ruling did not receive the publicity it deserved.
Now, various individuals like Shayara Bano, Afreen Rehman, and organisations likw the Bhartiya Muslim Mahila Andolan (BMMA) and Bebaak Collective have approached the apex court to ban triple talaq.
According to the Bebaak Collective, “a ban will put an end to the problem once and for all”. Muslims for Secular Democracy feels that “invalid is too mild a term; make it a criminal offence and send all husbands who pronounce triple talaq to jail”. Lalitha Kumaramangalam, NCW chairperson, in an interview to Al Jazeera said: “A ban will resolve the problem because women do not have resources to go to court.”
So what do those clamouring for a ban hope to achieve? Let us assume that the Modi government “bans” instant triple talaq through an act of Parliament. Beyond the rhetoric, how will this play out on the ground? Women will have to approach the police station to register a criminal complaint. Thereafter, the case will proceed as per the rules of the criminal justice system.
A poor woman, who lacks resources to access the judicial system, will have to depend on police officers, public prosecutors and judges to endure the rigours of a criminal trial to prove her case.
Way back in 1983, the women’s movement demanded a criminal provision to address domestic violence, but soon realised that punishment is not the answer married women were seeking. Thirty years later we got the DVA, a law with civil relief that can be used by both married and divorced women from all communities. But what has been learnt from that experience seems to be forgotten in this high-pitched demand for a ban.
What is even more frightening is how will this sword of criminalising instant triple talaq be used in the current atmosphere where anti-minority feelings are heightened.
It would be prudent to create awareness that instant triple talaq is invalid and ensure that we have trained and sensitive lawyers to help all women access their rights rather than the current short-sighted approach, which may look good on paper but has very little practical use for women.
Audrey D’mello, is programme director, Majlis Legal Centre
The views expressed are personal