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The Modi government’s latest ordinance is already causing quite a stir on many fronts

Simmering on the backburner of the national discourse for quite some time, the triple talaq issue is suddenly threatening to boil over after the Narendra Modi government approved an ordinance last month making the medieval practice of instant divorce in the Muslim community a criminal offence punishable with three years in prison.
Taking the extreme step of passing an ordinance – The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 – when a bill on the issue was still pending in the Rajya Sabha, the NDA government explained that there was an overwhelming “urgency” and a “compelling” need to do so as cases of triple talaq were continuing “unabated” across the country even after the Supreme Court had declared the practice unconstitutional and Lok Sabha had passed a bill against it.
“The issue of triple talaq has nothing to do with faith, mode of worship. It is pure issue of gender justice and gender equality … Women are being oppressed, they are suffering,” Law Minister Ravi Shankar Prasad told reporters soon after the Union Cabinet approved the ordinance.
Pointing out that triple talaq was still being dished out on unjustifiable grounds and on inappropriate platforms such as social media and networking sites, Prasad stated that there had been some 430 triple talaq cases between January 2017 and September 2018 across the country, out of which 201 came after the Supreme Court judgment. He also noted that there could be numerous other cases going unreported.
Prasad’s explanations notwithstanding, his government’s move has met with much opposition.
“The ordinance brought about by the central government is uncalled for and is motivated by considerations other than the welfare of Muslim women,” Communist Party of India-Marxist (CPI-M) said in a statement issued in New Delhi.
“The bill is pending in the Rajya Sabha and requires full discussions, including reference to a Select Committee. The ordinance is an undemocratic step of bypassing Parliament,” it said.
The CPI-M said that ‘talaq-e-biddat’, or instant divorce, has already been declared illegal by the Supreme Court, but the Modi government brought a bill that has made a “civil wrong a criminal offence” with the prescription of a three-year jail term for the offender.
“It is an ill-conceived measure that will not help protect the affected women. There are other flaws in the bill that need to be rectified. This ordinance is designed to serve the political interests of the ruling party (BJP) and cannot be accepted. Parliament should adopt a revised legislation in this regard,” the CPI-M said.
MIM chief Asaduddin Owaisi said the ordinance will do more injustice to Muslim women. Describing the ordinance as anti-women, he said it was also in violation of the fundamental rights guaranteed under the Constitution.
The Hyderabad MP said the Supreme Court, in its verdict on triple talaq, had stated that if a man pronounces triple talaq, the marriage does not get dissolved. “Then for what do you want to punish him?” he asked.
Owaisi said the burden of proof will lie on the woman, doing further injustice to her.
On the provision that the husband has to provide subsistence to the woman, he said how a man jailed for three years can give her subsistence.
“Marriage in Islam is a civil contract and making it penal offence is completely wrong,” said the Majlis-e-Ittehadul Muslimeen (MIM) President.
Owaisi, also a member of the All India Muslim Personal Law Board, said that in his personal opinion the board should challenge the ordinance in the Supreme Court as there were strong grounds to do so.
The MP said if Prime Minister Modi was really concerned about the welfare of women, he should bring a legislation for 24 lakh women who have been deserted by their husbands.
“These 24 lakh women, including 22 lakh Hindu women, are married but they are not living with their husbands,” Owaisi said.
He alleged that the ordinance was a tactic of the Modi government to divert people’s attention from spiralling prices of petrol and diesel, devaluation of rupee, lack of jobs for youth, instability in Kashmir and the failure of governance.
A number of other Muslim organisations also slammed the triple talaq ordinance, calling it politically motivated and “unacceptable”.
Jamat-e-Islami Hind President Maulana Syed Jalaluddin Umari in a statement said that if the government is sincere about the welfare of Muslim women, it should hold discussion with ‘ulema’ (Islamic scholars) and experts of Islamic jurisprudence over the entire talaq-e-biddat (triple talaq) issue.
“The ordinance is against the Constitution of India that gives every citizen liberty to practise one’s religion and personal laws. The ordinance contravenes the Shariah laws,” said Maulana Umari.
Jamiat Ulema-e-Hind General Secretary Maulana Mahmood Madani said the ordinance was not going to favour the divorced women in any way and would instead harm their cause for justice.
“It is a clear instance of dictatorship. The government did not even feel the need to consult the community,” he said.
All India Muslim Majlis-e-Mushawarat (AIMMM) President Navaid Hamid said the move was nothing but a “diversionary tactic” by the Modi government to deflect attention from its own failures and burning issues such as rising fuel prices and corruption.
“We should not even react to such provocations. I reckon the Modi government’s sole aim with this ordinance is to incite Muslims so that BJP can give it a communal colour and deflect attention from real issues,” Hamid thundered.
“If the government is so sincere about the welfare of Muslim women, it should tell us what it is doing for the Muslim widows whose husbands have been killed in lynching cases over the last four years,” he added.
Yet during his recent visit to Odisha, Prime Minister Modi spoke in defence of the ordinance. Making a veiled attack on the Congress and other parties accusing them of stalling the triple talaq bill, he said his government dared to take decisions that others were afraid of taking.
“Three days ago, the Centre took a decision that was needed since decades. When the intentions are clear, then one needs to take decisions that no other can dare to take. One of these decisions was on triple talaq.
“When our government made the decision on triple talaq, there was an effort to stall it in the Rajya Sabha. Now, it has been declared illegal,” he said in an apparent reference to the promulgation of an ordinance making triple talaq a criminal offence. However, debates over the issue have begun raging like wildfire across the country, and the opposition to it has only been assuming greater proportions. On September 26, the Samastha Kerala Jamiathul Ulema moved the Supreme Court challenging the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 on the grounds that it invokes penal provisions against a class of people based on their religious identity.
Founded in 1925, the Samastha Kerala Jamiathul Ulema is a religious organisation of the Sunni Muslim scholars and clerics in Kerala. Contending that the triple talaq ordinance is violative of Article 14, 15 and 21 of the Indian Constitution, the petitioner organisation has said that it has national ramification as it has introduced penal provision punishing a class of persons based on religious identity.
The Jamiathul Ulema has contended that the ordinance is “causative of grave public mischief, which, if unchecked, may lead to polarisation and disharmony in society”.
The petitioner organisation has taken exception to the word “unabated” in the ordinance, which says that despite the Supreme Court holding the practice of triple talaq (talaq-e-biddat) as unconstitutional, it is continuing “unabated”.
Describing the use of word “unabated” as “entirely whimsical”, the petitioner organisation termed it “misleading, inept and improper”.
It said that it is doubtful that anybody, including the Central government, has any idea of all-India statistics on the occurrence of triple talaq across the country prior to the Supreme Court judgment.
It has contended the fact that the matter is pending before the Rajya Sabha is “reason to await the outcome of the matter, not basis to accelerate its coming into force by an emergency ordinance”.
The petitioner organisation have contended that the real thrust of the ordinance is not abolition of triple talaq but punishment of Muslim husbands.
Section 4 of the ordinance imposes a maximum sentence of three-year imprisonment when a Muslim husband pronounces triple talaq. The offence is also cognizable and non-bailable as per Section 7.
“Creation of an offence may be the prerogative of the legislature. The government is duty-bound to act reasonably and sensibly, not merely in administrative matters but also in sovereign matters,” says the petition, contending that to its knowledge, “there is no informed assessment or study that forms basis for the Central government to have created this offence”.
“Some isolated instances of the practice that have occurred after the top court judgment does not imply that a penal provision is required to be immediately enacted to prevent the practice,” the petition has contended.
Having said this, the petitioner Samastha Kerala Jamiathul Ulema has contended that the ordinance under challenge is “patently unconstitutional and has immediate propensity to deprive Muslim men and women of their fundamental rights enshrined under Articles 14, 15 and 21 of the Constitution”.
The jury is out on whether the BJP or the Muslim womenfolk of the nation will gain anything from the ordinance, but a lot more heat could be coming the Modi government’s way on the burning triple talaq issue.

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