The House of Elders – Rajya Sabha – was visualised as the select group of experienced elderly law makers drawn from various walks of life, who would rise above politics and put to use their vast practical knowledge to suggest modifications of laws passed by the lower House, which comprised popular leaders who got elected enduring and surviving the trivia of political dust bowls of hinterland.
Some of the articulate, learned and vocal political leaders succeeded in stalling the passage of a Bill proposing to criminalise triple talaq in Rajya Sabha. They were concerned about possible destitution of a Muslim women if her husband was jailed for divorcing her through the instant and irrevocable triple talaq.
From among these articulate, vocal and learned Members of Parliament, few had donned the black robes and argued passionately before a five-judge multi-faith contitution bench of the Supreme Court endeavouring to save triple talaq as a valid and religion sanctioned mode of divorce available only to Muslim Men.
The Supreme Court ruled that triple talaq violated right to equality and non-discrimination guranteed under Article 14 and went on to say that “What is said to be bad in Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
Those who in SC had argued in support of the centuries old practice which was discriminatory and denigrating the women, got their chance to block it in the name of protecting poor Muslim women from destitution. They said a SC ban was enough deterrent.
If they think in India, just a constitutional court ban would make people fall in line, they are mistaken. SC has banned many things earlier – bursting of crackers and use of loud speakers after 10 pm, zig zag driving of vehicles on road, overloading of vehicles carrying school children and many more. All of them have been observed in breach because there is no harsh penalty on violators.
Without penal consequences, a mere SC ban would not discourage use of triple talaq. Should it be criminalised? To make sense of this question, one must hear heartrending stories of Shah Bano and Shamim Ara.
Shah Bano was married to Mohd Ahmed Khan in 1932. After five children and 43 years of marriage, one fine day in 1975 she was driven out of her matrimonial home. In April 1978, she moved an Indore court for a meagre maintenance of Rs 500 per month. Her husband was earning Rs 60,000 a year.
Immediately, the husband used triple talaq to divorce her and pleaded that a divorced wife was not entitled to maintenance. As a benevolent gesture, he said he had paid Rs 200 per month to her for two years and deposited Rs 3,000 as dower during the period of Iddat.
For him, the 43 year-long marital relation was as cheap as Rs 200 per month and a lump sum payment of Rs 3000. He thought that would be enough to help the old lady bide her old age. Is this not a criminal act of pushing the women to destitution? Should this man not deserve to be jailed?
The story does not end there. In 1979, the magistrate granted Rs 25 per month maintenance to her, which Madhya Pradesh HC enhanced to Rs 179.20 per month. Dissatisfied the husband appealed against it in the SC, which then rendered the famous judgment in 1985. But, the then government thought it otherwise and took steps to legislatively nullify the effect of SC judgment. Such was the concern for destitution of women divorced through triple talaq!
Shamim Ara was married to Abrar Ahmed in 1968. Divorced through triple talaq and in 1979, she moved an Allahabad family court for maintenance to her and her four children. In 1993, the court said a divorced woman was not entitled to maintenance. A meagre Rs 150 pr month maintenance was granted to her one son, who was still a minor as other children had become major by the time the court decided the issue. Her case too became a landmark one when SC decided it in 2002.
Agreed, it is a minuscule minority among Muslim men who treat their marital relations and wives in disdain and end it with instant and irrevocable triple talaq, now termed unconstitutional by the SC. But, will they stop if it is not made a penal offence?
Showing concern for possible destitution of Shah Banos and Shamim Aras by arguing against jailing of Mohd Akram Khans and Abrar Ahmeds would not curb the practice. It is not easy to enact a law either when it is meant to change a course that had been kept open for centuries under the garb of religious practice.
In Shah Bano case [1985 (2) SCC 556], the SC had aptly said: “It is also a matter of regret that Article 44 of the Constitution has remained a dead letter. It provides that ‘the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take the lead in the matter of reforms of their personal law.”
“A common civil code will help cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concession on this issue. It is the state which is charged with the duty of securing uniform civil code for citizens of the country and, unquestionably it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use the competence is quite another.”
When the Upper House resumes debate on the Bill proposing to criminalise triple talaq, the citizens would witness and weigh the political courage of our elderly leaders and the competence of the government.