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Shah Bano and Babri Masjid cases are incongruent but the well accepted maxim is that the twains are ‘inseparable siblings’ but the fact is that it is high time the twains are separated. This popularly known Triple Talaq Bill, thus needs an urgent legal scrutiny apart from contextualising it with the political paradigms of the country. The bill right now hangs in Rajya Sabha.

There is no love-lost of Modi’s Hindutva government 2.0 for Muslims, the country’s second biggest majority, but as a part of its first legislation (tirade), the government brought again The Muslim Women ( Protection of Rights on Marriage) Bill, on June 14. This bill had once got passed through Lok Sabha on Dec 27, 2018 but could not go through Rajya Sabha as both the houses had then got adjourned. Ravi Shankar Prasad , the Union Minister for Law and Justice lionised the bill as a cry for ‘gender justice, dignity and empowerment’ . The entire premise of Prasad is that despite the SC order, in the case of Shayra Bano V’s Union of India and others , on August 22, 2017, having set aside the practice of pronouncing Triple Talaq (divorce) in one sitting, as null and void, there were as many as nearly 245 reported such cases even after the SC order. Hence, the government decided to criminalise the act. But, the biggest question is why the government so hell bent over it when marriage in Islam is a civil contract?

This bill just cannot be seen in isolation. The events leading to it have to be analysed. This Shayra Bano case takes its precedence to Shah Bano case of 1985, in which Congress Party had turned the SC order and brought a bill, which has been branded by everyone as ‘Muslim appeasement’. This is the widest and the gravest misnomer projected by nearly every political party or ideologue that Congress tried to foster Muslims by this way and as a balancing act facilitated the opening of the Babri Masjid locks on Feb 1, 1986, lying locked since 1949, in order to stride with Hindus, whereas, the facts are entirely and starkly different.

India, in fact after the 1977 socialist government has never been the same. A bit of political history is what is needed here. It was Rashtriya Swamsevak Sangh (RSS) which had overtly supported Congress ride to power in 1980 and immediately what followed was the Muradabad (UP) Eid-Day riot (1980) and thereafter the worst ever Muslim cleansing as Nielle massacre, Assam (1983) was supervised by Congress. The Gujarat holocaust of 2002 under the then BJP Chief Minister Narender Modi would pale into oblivion by the propensity of the killing of Muslims at Nielle in a single day! No wonder very soon thence was the movement launched to liberate Ram temple locked inside Babri Masjid at Ayodhya, Faizabad.

Congress party leaders in Faizabad like Dau Dayal Khanna, Nirmal Das Khatri etc alongside Ramchander Paramhans and Mahant Avaidhnath had started to organise processions for Ram temple in Ayodhya. A yatra, which was later emulated by BJP LK Advani, was started from Sitamarhi (Bihar in 1983) which was supposed to reach Ayodhya via Delhi. The yatra had to be halted at Delhi as PM Indira Gandhi was shot dead in 1984. Had she not died the locks of Babri Masjid were to have been opened in 1984, on the very onset of elections. Congress got the sympathy vote over her death and came with a hefty 415/543 majority in 1984 parliament and had the same success rate in UP assembly too. Rajiv Gandhi-the successor PM, despite the brute majority, duly obliged by getting the locks of Babri Masjid unlocked. The Congress party agenda for Ram Temple was well on the cards, much too earlier than the Shah Bano SC order which came on April 23, 1985.

No wonder the opening of Babri Masjid locks led to hundreds of riots in the country with Muslims always at the receiving end. Rudauli, adjacent to Ayodhya witnessed a riot the same day, then Meerut, Bhagalpur etc. Congress party role in Shilanyas (foundation) of Ram Temple, its PM Narsimha Rao connivance and complicity in Babri Masjid demolition on Dec 6, 1992- is all too open; Congress Rao’s Ordinance of Jan 7, 1993 to pave way for Ram Temple construction is an irrefutable part of our political curricula. The demolition triggered nationwide riots, Bombay was the worst affected, blasts in Bombay came in 1993 and with it came TADA, POTA and later UAPA. Hundreds and thousands of Muslims landed in jails, remained there for decades and thereafter acquitted. There is a long saga of the state apathy from Congress led governments at Center and states. Then came Sep 11, 2001 and with it ‘war on terror’ by our various state governments. SIMI was banned, extra-judicial killing of Muslims, torture chambers et all became the fate of Muslims at large. Muslim society passed through hemorrhage, everything lay asunder under the sun. The last four-decades have permeated a siege around every Muslim individual or organisation. Muslims will need to pay the price of partition and lay for the ‘balance of history’ as nearly 40000 mosques are demanded by Hindu right to change them into temples apart from Ayodhya, Kashi and Mathura sites. Congress led the fanaticism against Muslims and now is succeeded by its own virulent avatar–the BJP. Do not we know that the great majority of Congress cadre, all across the country is now got subsumed into BJP. It is in this overview this bill has to be weighed as it would wreck every Muslim family already beleaguered by the onslaughts of Hindu right and state high handedness.

How grievously the ingredients of this bill will hit the already aggrieved community has to be laid bare. The bill defines Talaq as ‘ “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.’ The bill penalises anyone who pronounces Triple Talaq in one sitting with a three years jail and fine, what has left the law pundits wondering as to how can punishment be imposed over something which has not happened at all! As such an act (instantaneous triple divorce) would be no divorce now as per the SC judgement of Aug 22, 2017.

The next point which deserves a mention is that Triple Talaq in one sitting (talaq-e-biddat) only has been declared void by the SC but the definition of Talaq given in the bill is wide enough to include even Talaq sought by wife (Khula) because even in Khula wife wants divorce instantaneously. This will also get covered by the definition of Talaq within the bill. It would be then an infringement on the rights of women provided by Islam. The bill is silent on this aspect.

The bill sanctions a married woman who could be the aggrieved party to file FIR but right has been given to her blood relative also which may result in misuse of this right and wife will be the ultimate sufferer. The bill has also taken away children’s rights because appointment of guardian is presently governed by Guardian and Ward Act under which guardian is appointed after taking into account the welfare of the child. While under this present bill mother will be appointed as guardian irrespective of her financial status and without taking into account that father was in the position to maintain and educate the children in a better manner. It can be thus said that the bill violates Article 14&15 of Constitution.

Lastly, if the Law Minister has drawn his cue from the reign of second Caliph who used to order flogging as punishment in cases of instantaneous Talaq, then the pointed difference is that at that time instant Triple Talaq use to become effective but now under the SC order no such divorce may come in effect after the pronouncement of triple talaq in one sitting. Anyone indulging in triple talaq even after the SC order is at best guilty of contempt of SC order which is liable for punishment for one year in jail but Law Minister wants a three-year jail instead. This is despite we having laws like Domestic Violence Act-2005, CrPC Section 125 and 498(A) IPC.

The government wants the bill to pass in this very session and the contest over it would now be in Rajya Sabha, where NDA has 115 seats including 78 of BJP and the opposition has 107 votes including 48 of Congress, but with this ground-breaking majority, the bill is likely to sail through as despite some of NDA allies raising questions on the ‘criminality-clause’, will abstain from voting.

Things have all become back to square minus one for Muslims. The Babri Masjid demolition accused are riding the crest of power and are far from being tried for their criminal act, its title-suit is in SC and Muslims are fighting it with their last straws. The cries for Ram Temple on streets are growing louder by the day and a catastrophe is what awaits Muslims at large, with incidences of forcing Muslims to shout Jai Shri Ram, or death in exchange, becoming the new normal.

To add to it, is this bill which has the capacity to wreck every Muslim family to no ends but why then would Modi Hindutva 2.0 government care for a fig.

Haider Abbas has extensively written on Babri Masjid issue, is a lawyer and former UP State Information Commissioner.


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