Union Law Minister, Ravi Shankar Prasad, while speaking during the discussion in the Parliament said, "My appeal is that this bill should not be seen through the eyes of political parties, religion or as a vote bank. This is for the honor of our sisters and our daughters. This is for their dignity and justice. I want to follow the legacy of this house by seeing that India stands up for its Muslim sisters and daughters. That if they don't have justice, this house will give them justice."

Religious leadership to be blamed

There is no denying that the Muslim Women (Protection of Rights on Marriage) Bill, 2017 is a watershed moment for the Muslims in the Independent India when the religious leadership of the community lost godsend opportunity to reject a tradition that doesn’t have sanction from either Qur’an or hadith. The instant triple talaq, also called talaq-e-biddat is something that goes against the very spirit of marriage.

Qur’an terms nikah or marriage ‘mithaqan ghaliza’, a strong agreement. The instant triple destroys the very sanctity of this agreement by unilaterally allowing the man to end the marriage at the spur of the moment. This tradition is already illegal in three out of the four Islamic schools of thought. The talaq-e-bidat is sanctified only in the Hanafi jurisprudence. The Hanafi scholars in the North India made it a prestige issue without deliberating it with ulama of other schools of thoughts and take a reasonable stand on the issue that has finally resulted in a bill that makes the Muslim men in the country a very vulnerable target.

Criminalizing something that didn’t take place

The BJP that has used the issue of instant triple talaq deftly for making political gains, has simply gone too far in its zest to make the entire Muslim community look obscurantist and backward. Many among Muslims are looking at the latest bill as a tool to divide the Muslim community. Others claim that the bill was unnecessary as it criminalizes an act that cannot be committed due to it being illegal.

Faizan Mustafa, a renowned legal expert says, “The purpose of criminal law is to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests. Since the Supreme Court has set aside triple talaq, it no longer dissolves the marriage, and thus, causes no harm at all. It no more threatens the security and well-being of society…The primary purpose of criminal law is ‘prevention’ of an act; if non-criminal means can succeed in preventing this act, criminal law need not be used”.

He goes on to add that the triple talaq shouldn’t be criminalized as there was no need to do so. “Inconsequential triple talaq, thus, should not be criminalised. The fundamental principle of good legislation is the art of conducting men to the maximum of happiness, and to the minimum of misery. A principal source of errors and injustice in legislation are false ideas of its utility. The Lok Sabha debates clearly demonstrated that government has unrealistic hopes from this bill” says he.

Is BJP really the savior of Muslim women?

The saffron party has been gloating over the fact that it has been able to bring the law criminalizing triple talaq and pass it from Lok Sabha. The Union Law Minister has said that the government wants to improve the lot of the Muslim women in the country. Does the party really want to improve the condition of the Muslim woman by sending the husband, usually the lone bread winner in a household to the jail for three years?

There is no denying that the instant triple talaq destroyed the lives of a few Muslim women who actually suffered from it, but this was taken care of by the Supreme Court verdict making the practice null and void. If the sole bread winner of the family goes to jail for committing a crime that cannot really take place, who will look after the wife and children. The woman, following the apex court verdict will remain his wife despite him pronouncing triple talaq.

If the BJP was really eager to see the Indian Muslim women develop, as the Union Law Minister so grandly claimed, his government should have passed legislation providing special provision of reservation for the Muslim women in job and education. By ensuring that the sole bread winner of the family goes to jail, the BJP government at the center has hurt the Muslim woman the most, whose interests it claims it wanted to safeguard.

More columns by Syed Ubaidur Rahman:

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