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India: Women’s organisations: A law against instant triple talaq should improve women’s situation, not weaken it

Thursday 14 December 2017, by siawi3

Source: Bebaak Collective, December 13, 2017

Appeal against the Criminalization of Triple Talaq
to be sent to relevant authorities in India

Respected Sir/Madam,

Subject: Appeal for broader consultation on the proposed bill regarding instant triple talaq to be introduced in the winter session of the Parliament.

We recently read in the newspapers that the government is proposing to introduce a new Bill in this winter session of the Parliament to make the practice of instant triple talaq a punishable offence. It was also stated that the deliberations of a group of ministers, of which you are reported to be a part, were underway to finalise the provisions of the Bill.

Therefore, we are addressing this appeal to you.

We undersigned are activists, feminists, individuals, as well as representatives of various women’s organizations, including interveners in support of petition filed by Ms. Shayara Bano, before the Hon’ble Supreme Court, challenging the constitutional validity of triple talaq, halala and polygamy.

We are aware that formulating any legal provision based on foundation of Indian Constitution is an arduous task. It requires tremendous effort and commitment to basic tenets of the secular, democratic socialist framework of the Constitution. On 29 August 1947, the Constituent Assembly set up a Drafting Committee under the Chairmanship of Dr. B.R. Ambedkar to prepare a draft Constitution for India. The assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the assembly signed the document on 24 January 1950. Similarly for formulation of Hindu Code Bill there was comprehensive process followed. From year 1930 women’s organizations had put out the demand for a comprehensive code. In response to that, under the chairmanship of Law Minister, Dr Ambedkar, a committee was formed which modified further the first draft of Hindu Code Bill and after much debates within Parliament and civil society, between 1952 to 1956 the Hindu code bill passed in four separate segments.

We state all this to emphasise that no far reaching effective, just legal reform can be carried out without putting in similar sustained and intense efforts.

All the important legislations concerning women and their rights in the last three decades have been preceded by wide consultations with women’s and civil society organisations and the same has happened with regard to other laws affecting other marginalised sections of society.

Even the Law and Justice ministry of the Government of India has published the “Pre Legislative Consultation Policy†on 5th February 2014, which lays down the procedure to be followed for the pre-legislative consultation. There are total 12 guiding principles laid down in this policy. We are highlighting few points below:

Every Department/Ministry shall proactively publish the proposed legislations both on the internet as also through other means; the detailed modalities of such publication may be worked out by the Department/Ministry concerned.
The Department/Ministry concerned should publish/place in public domain the draft legislation or at least the information that may inter alia include brief justification for such legislation, essential elements of the proposed legislation, its broad financial implications, and an estimated assessment of the impact of such legislation on environment, fundamental rights, lives and livelihoods of the concerned/affected people, etc. Such details may be kept in the public domain for a minimum period of thirty days for being proactively shared with the public in such manner as may be specified by the Department/Ministry concerned.

We would like to bring to your notice, that it is women and women’s groups who approached Supreme Court asking for justice and constitutional rights in the matter of unilateral triple talaq and other related matters. Therefore, it is imperative that we, the affected stakeholders should be consulted before any legislation is brought about in this matter.

Therefore, we appeal to you to call for broader consultation with women’s groups before introducing any amendment or Bill, including the above referred Bill which intends to criminalise the practice of triple talaq. Any bill or amendment based on the lived realities of women only can provide required justice.

We also request you to share the draft Bill or amendment which you are proposing with us before the consultation.

At the outset we would like to state that we are completely opposed to making the practice of instant triple talaq a criminal offence, leading to imprisonment.

We state our reasons as below:

Using penal actions leading to imprisonment to discourage the practice of instant triple talaq will not help in getting justice for women. When a woman reports a complaint about triple talaq, she wants to continue staying in matrimonial home and needs to draw financial support from husband. Imprisoning the husband will in fact deprive her of both.

Since marriage is a civil contract between two adult persons, the procedures to be followed on violation of the civil contract has be civil in nature which strengthens the woman, instead of making her more vulnerable.

We once again appeal to you to call for broader consultation with Women’s groups, to understand our lived realities, which will help in formulation of the legislation.

Hasina Khan, Geeta Thatra,Roshni Reena, Nasim Naik,

For Bebaak Collective,

Mumbai, Maharashtra.