An ordinance – for the sake of it

President Ram Nath Kovind has signed the ordinance moved by the Central Government on Wednesday making triple talaq, a practice of divorcing Muslim women by uttering 'talaq' thrice, a punishable offence.

The ordinance which bans divorce using triple talaq, stipulates registering a case against the husband under non-bailable sections along with a jail term of three years and a fine in such cases. The ordinance specifies that a complaint can be filed only by the woman or her close family relations by blood, that the woman would get the custody of children and that the victim and her children will be entitled to maintenance. The order also says that at the instance of the wife the magistrate can arrange for compromise and the parties can settle the issue before a court of law. The Muslim Women (Protection of Rights on Marriage) Bill 2017 for penalising triple talaq was cleared by the Lok Sabha, where BJP has majority, in December last year. But it was postponed to the next session fearing the Bill might be stalled in the Rajya Sabha, due to the resistance from the Opposition. However, the Central Government has cleared the ordinance that makes triple talaq a punishable offence, in a haste without waiting for the winter session. With the Bill cleared in the Lok Sabha and tabled in the Rajya Sabha for consideration, legal experts have apprehensions over its validity and legality. Even if the ordinance gets approved, it is still unclear how effective it will be in implementation.

The BJP or the Central Government feels little guilt in their own cohorts lynching Muslim youth under the guise of different excuses or while protecting the culprits by neglecting the complaints of the Muslim women and their families. It has been quite some time since the same party has been waging a war against triple talaq, an evil practice of a negligible minority of the community. They colluded with select people for litigation and provided liberal assistance of power to them. Eventually, the Supreme Court ruled triple talaq as illegal last year. The Muslim Women (Protection of Rights on Marriage) Bill is the outcome of the feverishness of the Sangh Parivar and the Centre to pass it into law.

The opposition had pointed out the vested interests behind the Bill and its drawbacks when it was tabled in the Lok Sabha in December last year. Different Muslim organisations and political parties were of the view that a serious amendment in the personal law of a community, must be made only after winning the confidence of that community and taking into account their views. All India Muslim Personal Law Board and different Muslim organisations had pointed out that anti-people customs within the community could be overcome with the help of strong awareness campaigns and that practical solution measures can be found with the help of existing religious and moral teachings to get rid of exploitative practices such as triple talaq and nikah halala.

The main question that arose about the bill is whether punishment can be awarded on the subject of marriage that comes under a civil law by criminalizing it. Similarly, given that triple talaq will lose validity with the court having declared it unlawful, there is the paradox that a wife will file a case for divorce and maintenance against a man who is legally her husband. At the face of Opposition objections , the Centre had agreed to certain amendments in the bill and the same have been incorporated in the ordinance.

As for the question why this hurry before the next parliament session is convened, the answer would be because four states are going to have elections soon. The ordinance seeks to win the support of the pseudo-progressives of Muslims by claiming to have won a major right for Muslim women, and the pleasure of the non-Muslim sections by posing as the party that made provision for jail term for Muslim males. It is clear that BJP's only calculation is of making this a trump card through which it can make political polarization. The preliminary doubts in connection with this clearly shows that in its hurry to create such an impression, no homework was done even about the enforcement part. The question before BJP is not of giving relief or punishment for Muslim man and woman, but of making its prospects safe in the next election. The ordinance is nothing more than a card to play in that game.